Intellectual Property
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Handling information is a critical part of building an e-learning course. Course designers may build a course around an existing textbook, and they may use the digital contents related to that course with the express written permission of the publisher (often if the book is also required for the course). Others build contents based on their own digital contents--that are produced from scratch and raw imagery and fresh video (with proper legal releases by those depicted in the video).
Often, course contents come from a variety of sources, and this is where intellectual property concerns come to the forefront. One concern is information "provenance," or where the actual information comes from. Often, that trail of origination goes cold pretty speedily with the changing of the digital file name and the digital versioning of that resource. Or poor documentation of a file's provenance may also confuse its origins.
Multimedia objects--videos, music, and other digital objects--are considered compilation works, which means that each copyrighted element has to be properly cleared for release before these objects may be used.
Some of the following laws help inform the building of e-learning courses.
Faculty have several interests in intellectual property. One is as creators of contents that may have R&D (research and development) value. Another angle is that of users of content for their research, learning and teaching. And then there's also the angle as publishers or distributors of contents in their learning / course management systems and websites.
[edit] De Facto Copyright in Tangible Form
All creative works expressed in a tangible form have de facto copyright protections (a "limited monopoly" designed to promote the progress of "science and the useful arts"), whether or not they're labeled as such (labeled as "notice") or whether or not they've been registered. The standards for the "originality" of works is not apparently very high.
So-called "protectable" works include literary works (including software); music; dramatic works; pantomimes and choreography; graphic and sculptural works; motion pictures and other audiovisual works; sound recordings, and architectural works.
The rights of a copyright holder include the rights of reproducing that work, distributing it, adapting it for derivative works, conducting a public performance of that work, putting the work up for public display, and performing a sound recording of it "by digital transmission".
[edit] Copyright and Fair Use Exemptions
The signatories to the Berne Convention ("almost all nations") assert their support of copyright protections (http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works). In the US, works created after 2002 are protected for 70 years after the death or the author or 95 years from the date of publication, if a work is one of corporate authorship (with multiple authors). Without copyright renewal, such works then become part of the public domain.
"Fair use" refers to Section 107 of the 1976 US Copyright Act that exempts some copyright protections when the contents are used for teaching, scholarship and research; Section 107 also addresses use purposes in terms of criticism, comment, and news reportage. However, the prior uses are not automatically indicators of fair use applicability. This is considered a "safety valve" for copyright, so that there is a balance in terms of reasonable access.
“Fair use” depends on the following four points: 1. The purpose and character of the use (whether commercial or non-profit educational) 2. The nature of the copyrighted work 3. The amount and substantiality of the portion in relation to the copyrighted work as a whole 4. The effect of the use on the potential market or value of the copyrighted work
In regards to classroom copying, the multiple copying for classroom use that many apply involves five tests for such copying:
brevity spontaneity cumulative effect notice of copyright no charge for the contents (beyond copying)
The brevity piece suggests that no more than 10% of a work may be copied or 1000 words, whichever is less. The spontaneity clause suggests that a work may be copied for class if there is not time between when a decision was made to use the work and its use in the class...to seek permission from the copyright holder. While many have suggested that a "first use" of a work is appropriate, that is not in the letter of the law but does seem to have wide practice. (The use of any contents should be of genuine original contents, not "bootleg" copies.) Most agree that a "second use" of a copied work is never justified under fair use. The "cumulative effect" refers to the impact of the use of the work on the sales of that original work. There should be notice of copyright on all distributed copies of that work. And the school should not charge for those contents.
These guidelines were created by an ad hoc committee in 1976, and their findings were incorporated in the legislative report. These are not binding laws but considered guidelines for a "safe harbor" against a potential copyright infringement lawsuit.
[edit] Transformative Fair Use
A "transformative" use of copyrighted content may be exempted under fair use. Here, a work is repurposed very differently so that it does not compete in the same market as the original. These may include parodies, thumbnail images, scholarly comment and review, and other uses. Again, these are often decided based on factual inquiries...into each specific situation.
[edit] The Diminishment of Fair Use Rights?
There's talk that with the expansion of the so-called "permissions market" that fair use rights have diminished. In other words, with the relative ease in querying about copyright releases, fair use exemptions may have less understanding in courts. (This is one interpretation.)
[edit] The Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA, 1998) is a federal law that criminalizes copyright infringement on the Internet and in relation to digital objects. It disallows circumvention of the technological locks used as part of digital rights management to protect digitally stored contents.
[edit] The Technology, Education and Copyright Harmonization Act (TEACH) Act
The Technology, Education and Copyright Harmonization Act (TEACH Act, 2002) addresses some public performance rights in e-learning and refer to the following:
1. Transmitting performances of all of a non-dramatic literary or musical work (~ a poetry or short story reading; all music besides opera and music videos and musicals) 2. Transmitting “reasonable and limited portions” of any other performance such as films, videos, and any dramatic musical works 3. Transmitting displays of any work “in amounts comparable to face-to-face displays” (~ images)…with caveats
Numerous caveats apply to the TEACH Act. The materials have to be used by accredited, nonprofit educational institutions with an institution-wide copyright policy. The works have to be lawfully made and acquired. The copyrighted works should be an integral part of the learning and course session. Only reasonable portions of the work may be used. There should also be downstream controls to limit the transmission of these works. Digital rights management controls should limit the use of the works to the course session or term.
Exemptions to the TEACH Act apply to the following:
E-reserves, e-coursepacks (electronic or paper) or interlibrary loan materials; the digital delivery of supplemental reading materials
Commercial documents
Textbooks or digital contents “provided under license,” and
The conversion of materials from analog to digital formats, “except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures,” according to the Copyright Clearance Center.
The TEACH Act does not apply to textual contents but rather to performances of partial pieces of works. (No full videos, for example, are allowed to be archived and displayed under this Act.)
[edit] In the Public Domain
The "public domain" involves various intellectual property that is not owned by anyone. These works are public property and may be used in any way that others see fit, whether for commercial or non-commercial use, whether with attribution or not.
[edit] Trademark Protections
Trademarks may be created for words, phrases, designs and packaging. These may include logos; slogans; certification marks, and collective membership marks. These may be protected through legal measures forever. The status of trademarks may be checked with the US Patent and Trademark Office (USPTO) http://www.uspto.gov/. Owners of trademarks need to protect their mark against dilution or becoming "generic."
Trademarks should always be treated as trademarks in courses, with the proper registration (R) or trademark (TM) label.
[edit] Basic Patent Tenets
Patents refer to new, non-emulative, non-obvious creations, such as ideas, processes, products or technologies. Patented innovations and technologies may not be legally used without negotiated compensation to the patent holder.
Want to do a search for extant patents?
Google Patents Beta: http://www.google.com/patents?hl=en
[edit] Trade Secret Protections
Trade secrets have economic value and are generally not readily available to the public. These include formulas, programs, devices, methods, or processes.
[edit] Copyright Releases
In the spirit of Web 2.0 and the original intent of the WWW to share problem-solving and information, many who are creating digital contents are releasing their works through Creative Commons and other types of copyright releases. (About Licenses 2009). There are university-level educational resources made available as through MIT OpenCourseware, various digital repositories, and some online publications. The copyright permissions should be explored on a case-by-case basis.
[edit] Orphaned Works Legislation
There's talk of a new "Orphaned Works Act" that may protect users of copyrighted materials who go through due diligence in trying to contact the owners of a work for release. If there are no claimants or "lazy owners," this new law may protect individuals using copyrighted works after reasonable efforts to locate the owners to negotiate rights releases. More on this is available at the following site: http://arstechnica.com/tech-policy/news/2008/04/new-orphaned-works-act-would-limit-copyright-liability.ars, and http://en.wikipedia.org/wiki/Orphan_works. The proposed bill is available here: http://www.govtrack.us/congress/billtext.xpd?bill=s110-2913. This is still moving through the US Congress.
Disclaimer: None of the contents here are to be taken as advisement. This is provided as information only. Users who use this information may do so at their own risk.
[edit] As Applied to Institutions of Higher Education Engaged in E-Learning
Universities and colleges are advised to have solid policies in place against the infringement of intellectual property. They are asked to train their faculty and staff on IP laws and how to comply. There should be "takedown" procedures for when copyrighted works have been discovered on university servers (no matter whether students, faculty or staff uploaded them there). Various lawyers have suggested that the schools' "risk management" approach should consider copyright issues.
[edit] Some IP Applications to Student Work
Below follows an image which conceptualizes the moment when student works need to have clean and clear copyright clearance on their works. At the "5 after" point, any of the following works may involve commercial applications. Whenever student design work goes into portfolios (especially those distributed via the Internet and Web); public presentations; design competitions; public shows; academic publications; online displays; student apprenticeships; professional designs, and work proposals, there can easily be liability for using copyrighted works in the design. For those working in creative fields, it's a good idea to build clean from the beginning to save on having to scrub the work later.
[edit] Caveat and Disclaimer
This is informational only and not any sort of advisement.
[edit] See Also
[edit] References
About Licenses. (2009). Creative Commons. Retrieved Feb. 15, 2009, at http://creativecommons.org/about/licenses/.
Gasaway, L. (2003). When U.S. works pass into the public domain. Retrieved Feb. 15, 2009, at http://www.unc.edu/~unclng/public-d.htm.
Hai-Jew, S. (2010, Feb. 25). The Life Cycle of Student Work. Presentation to K-State's Landscape Architecture and Regional & Community Planning Faculty.