Faculty members have often used copyrighted materials in the classroom. Armed by the idea of "Fair Use" they copied and distributed pages of books, news articles, and photographs to use as part of the teaching process. But the days of mimeographs and video copies are gone, replaced by the digital domain where the copy is as good as the original. So, now, copyright is a very real, very serious concern.

As new media has changed our process of making copies, so the online world has changed our understanding of distribution of copyrighted materials. The idea of Fair Use has changed. More and more students are now publishing their works on the Web. In addition, new legislation is now in use that changes how we think of copyright in a digital age.

Washburn University Online Education must work to assure that the copyrights of our instructors and students are not infringed upon, and that we in turn do not mistakenly violate the copyright of others. With the radical shift in thinking, understanding the limitations of Fair Use on the Web can be difficult. It is the intent of this document to briefly discuss what can and cannot be done with copyrighted material online, and how instructors can protect themselves from copyright violation.

In a Nutshell

This document includes a number of specific details about what can be used online and what cannot, how to obtain permission for use, what notices need to be included to properly attribute copyright on a Web course, and specific outcomes of legislation. For those who do not want to read the entire document, it can be summarized as follows:

  • According to Copyright Law, original work is protected by copyright.
  • According to the Fair Use provision, some things can be copied for educational use.
  • According to the DMCA, it is difficult to legally use copyrighted material on the Web.
  • According to the TEACH Act, online classes have more flexibility than the rest of the Web.
  • If the way is unclear, it doesn't hurt to ask permission to use copyrighted work.

There are many considerations to be made regarding these points, and the remainder of this document will seek to address the most likely questions.

What Can Be Copyrighted? 

Copyright protection extends beyond the printed word. Photographs, film, television, and Web page content are all copyrighted.

Online Classroom

Desire2Learn, the online course management system used by Washburn, allows the university to restrict access of course materials to those students enrolled in a particular course. This "closed" environment is essential to the definition of an online classroom. This is what separates an online class from a public website.

Nevertheless, many assume that because Desire2Learn is a closed environment that online classes are exempt from ANY concerns about copyright issues. This is not true. Online education is bound by the same copyright law that binds traditional classrooms. The difference is in the medium. While paper photocopies in a traditional classroom are considered one-time use items, a digital copy of a work is near perfect and can be redistributed. For this reason, laws have come into play amending the original copyright law in regard to the information age.

DMCA and the TEACH Act 

The Digital Millennium Copyright Act (DMCA) was passed in Oct. 1998 "to implement United States treaty obligations and to move the nation's copyright law into the digital age." [1] Opponents of the DMCA believe it only succeeded in increasing the difficulty of legally making copies in the digital domain. More importantly, the idea of Fair Use was effectively removed from Web-based education because of the DMCA.

In July 2002, Congress passed a bill known as the Technology, Education and Copyright Harmonization (TEACH) Act. Signed into law by President Bush on November 2, the TEACH Act loosens the restraints created by the DMCA insofar as education is concerned. In short, it expands the Fair Use exemption of copyright law to include online education at accredited nonprofit colleges and universities.

Within the limits of an online classroom, instructors now have greater latitude for using copyrighted materials than under either the DMCA or Fair Use. According to the TEACH Act, faculty members can use the following without seeking permission from the copyright holder:

  • Performances of non-dramatic literary (textbooks, novels, poetry) or musical works in their entirety. -- A streaming audio reading of a poem, for example. Or a streaming audio of The Beatles singing "Here Comes the Sun".
  • Performances of any other work (plays, movies) in reasonable and limited portions. -- A clip from a movie, or a short excerpt of a performed play (audio and/or video).
  • Displays of any work (dramatic or non-dramatic) in proportion to what would be used in a traditional classroom. -- A digital copy (PDF or HTML) of a novel, poem, textbook, newspaper story, play text, movie script, music lyrics, etc. in keeping with the amount allowed under the Fair Use doctrine.

The distinction between Dramatic and Non-Dramatic as well as between Performance and Display are crucial to proper interpretation of the TEACH Act. An instructor using a digital Performance has a defined use according the TEACH Act, while Display must rely on the same tenets of Fair Use that instructors use in the traditional classroom.

Other requirements of the TEACH Act require that instructors:

  • Limit use of copyrighted materials to a "class session" as defined by the instructor. If, for example, the class will be discussing Chapter 12 for two weeks, material related to that chapter may be made available for the duration of that discussion.
  • Copyrighted materials can only be used within "mediated instructional activities." This requires that there be an instructor running the course.
  • Course material must be integral to the course of study.
  • Technological measures must be in place to reasonably prevent unauthorized duplication and distribution of the work.

Fair Use 

Fair Use incorporates a number of issues. The following is from the fair use statute of the Copyright Act: [2]

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

The idea of Fair Use has changed with the introduction of new technology. When an instructor is displaying a copyrighted work in an online course, the TEACH Act requires that the material used is "an amount comparable to that which is typically displayed in the course of a live classroom session."

The guidelines for traditional classroom use is summarized in Circular 21: Reproduction of Copyrighted Works by Educators and Librarians (from the US Copyright Office). This reference states that copies may be created for classroom use or discussion provided that:

  • The copying meets the tests of brevity and spontaneity
  • Meets the cumulative effect test
  • Each copy includes a notice of copyright

The publication goes on to state that brevity for written works is defined according to the type and length of the original work:

(i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.

(ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.

[Each of the numerical limits stated in “i” and “ii” above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]

The cumulative effect test refers to the total amount of a given work that is copied. To prevent instructors from copying and distributing too much of a single work, the following guidelines have been suggested:

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

[The limitations stated in “ii” and “iii” above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

Public Domain 

One way to avoid copyright infringement is to use information and articles that are in the public domain. These documents were either created before 1922, were created for public use, or have after a number of years fallen into the public domain because their copyright expired. For example, the complete works of William Shakespeare are in the public domain and the texts can be accessed from various sources on the Web. Most documents found on the Web in .gov (government) or .mil (military) domains are free for public use and may be used unless otherwise specifically noted. There are other examples of public domain materials, such as unsealed court records. Also, many sites on the Web offer royalty-free photographs or free clip art to use in enhancing a website.

Getting Permission to Reproduce Copyrighted Materials

Although it can take time, getting permission to use copyrighted materials is often as easy as sending e-mail. Many people who post papers, analyses, and stories to the Web are happy to share their work as long as one gives proper credit. Newspapers and magazines may request a fee for permission to post articles, and usually only give permission for a limited time (6-12 months). Because of the varied factors, it is important to know where information came from and when it was first posted.

Copyright Clearinghouses

For permission to use copyrighted materials, one can go to copyright clearinghouses. Such places act as a mediator between publishers and the public. The Copyright Clearance Center (http://www.copyright.com), for example, offers a single point of contact for permission to reproduce copyrighted content such as articles and book chapters in one's journals, photocopies, course packs, library reserves, websites, e-mail and more.

Online Resources to Materials

Some companies like XanEdu (http://www.xanedu.com) and Questia (http://www.questia.com) offer faculty and students access to vast libraries of information, including copyrighted works. More importantly, if there is a work they do not offer, they will often obtain permission to make the work available in their libraries. Unlike putting books on reserve in the library, however, this service usually requires a financial burden to the student. For this reason, instructors often consider it as an alternative to textbooks rather than as a supplement.

Protecting Yourself and Your Students 

While doing multiple things to protect the rights of copied works, many people assume that the only thing that can be done to protect one's own rights is to rely on the good faith of others. To a certain extent, this is true, because one cannot police the entire world for copyright violation. However, there are some things the individual can do.

First, although it is not required under the Berne Convention (1988), one should affix copyright information to all original work. This can be done by including three pieces of information:

  • The symbol ©, or the word Copyrighted, or the abbreviation "Copr."
  • The year of original publication (this includes posting to the Web).
  • The name of the author.

For example: "© 2002 by John Smith." While one can register a document with the Register of Copyrights, it is not necessary in order to hold copyright on an original document.

In addition, every Desire2Learn course home page bears this statement:

The material on this Web site may be copied and/or used only for the purposes of private study, research, criticism, or review, as permitted under copyright legislation. No part may be reproduced or re-used for any purpose whatsoever without written permission.

Usage of this website is governed by the Washburn University World Wide Web Policy.

Second, when students post presentations or class materials to the Web, educate them in the proper way to mark their work as copyrighted. Again, this is not required, but it is encouraged because it makes students think about the copyrights of others when doing research.

Third, before posting student work to the Web outside of class, be sure to have your students fill out a release form. The University requires releases for all student work and photographs of students. This assures that the University has received the student's permission to use their copyrighted material.

Copying Copyrighted Material 

After obtaining permission to use copyrighted material, one must copy it. Unlike the days of photocopying, an online course requires that all copies are made available in electronic formation (e.g. HTML, PDF, etc.). When acquiring rights to an article, video, or other work, make sure to secure rights to digitize the material. Rights granted to copy a journal article may not include the right to transfer the work to a new medium, so be sure to ask.

The TEACH Act specifically allows the digitization of print works under the following conditions:

  • The amounts are authorized to be performed or displayed under section 110(2) as amended by the TEACH Act; and
  • There is no digital version available to the university; or
  • The digital version that is available is technologically protected in a manner that prevents its use for section 110(2) purposes.

Material not already in an electronic format should be retyped. Scanning text is possible, but only the best optical readers can do it well. Most of the time the user must meticulously pour over the text finding mistakes (the letter "i" becomes "l", etc.).

Web Pages

If the article or text exists on the Web, one can copy the material directly from the Web page. One should not save the HTML code from an existing Web page. A Web page often has embedded images and links that relate directly to the Web site from which the page was pulled. Saving that code and uploading it into a Web course (or another website) will result in broken images and links. Copying a Web page could also be considered infringement of a copyrighted work, as all Web pages are automatically copyrighted upon publication to the Web, because it has more than just text (images, layout, design, etc.).

Linking to the Web

One can avoid the question of copyright by linking to information rather than copying it. A link to a site on the Web will guarantee the information is as current as the owners of the website make it. Of course, what someone posts can also be removed, so it is a good idea to double-check all links at the start of a semester to make sure they go where one intends. A link check should be standard prep work in the maintenance of all existing online courses.

Proper Citation 

Having copied the material from one source to HTML, one must consider how to properly cite where the material came from (if it is copyrighted) and if one has permission to use it (and if so, for how long). Following are some examples of how to cite the original sources and copyright of material. All notices should be affixed in the same place, preferably at the end of the article.

For material obtained from a public domain:

"From A Study of Food Poisoning in America by Sam and Ella Ptomaine. 1915. All material is in the public domain."

For copyrighted material with written permission:

"Excerpt from The Great American Novel ©1977 by José Ken Yousee. Reprinted with permission. All rights reserved."

If the permission has an expiration date (such as is the case with some newspapers), one may wish to include it as a reminder when to take it down:

"From The New York Times, "A review of Yousee's Great American Novel." ©1978 by Sarah Bellum. Reprinted with permission until Jan. 1, 2005. All rights reserved."

For material obtained from a public domain on the Web:

All material is in the public domain.


For copyrighted material with written permission from the Web:

©2000 by Roger Wilco. Reprinted with permission. All rights reserved. http://www.somewhere-else.com

If the permission has an expiration date (such as is the case with some newspapers), one may wish to amend the above to:

©2000 by Warren Piece. Reprinted with permission until Jan. 1, 2005. All rights reserved.


In Conclusion

Copyright is always a tricky subject, even in the traditional classroom. The advent of the DMCA complicated matters so that the freedoms associated with Fair Use and education were not necessarily extend to the virtual classroom. The introduction of the TEACH Act has helped keep online education a comparable and competitive alternative to traditional classroom education.

For more assistance with copyright questions, contact the Copyright Committee.


[1] Executive Summary, Digital Millennium Copyright Act, Section 104 Report

[2] Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use

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