An Education in Copyright Law

Dr. Robert N. Diotalevi, LL.M.
Program Coordinator of Legal Studies at Florida Gulf Coast University
E-mail is:¾bdiotale@fgcu.edu

I. THE LAW OF COPYRIGHT

A. The Basics

1. Overview

Copyright law has been a hot topic of late. This has never been more evident than with the emergence of the Internet as a teaching tool. The Internet was once a research project; today it is the greatest computer system in the world. Also known as the Net or cyberspace (ACLU v. Reno), this information superhighway offers a tremendous amount of material. However, the information age has created greater concerns about copyright law.

2. Myths and Mistakes Concerning Copyright Law

There are many misconceptions about copyright law. For example, many believe that one needs to provide notice in order to possess a copyrighted work (Templeton). Some think that registration is necessary or that photocopying requires express permission from the author in all cases. Mistakes also abound as to the defense of copyrights as well as thoughts of the dreaded "copyright police" looking for alleged infringement violations (Litman 50-51). Copyright law is simply misunderstood.

There is no physicality to copyright protection. A copyright is a type of intellectual property--that is, an attachment of intangible rights that occurs when certain rules are followed. It is reminiscent of our federal or state constitutional protections. For example, even though a constitution could burn in a fire, we would not lose the fundamental freedoms contained therein. A closer examination reveals that there are several privileges afforded by copyright law.

3. What is Copyright Law?

There are numerous authors who have addressed the subject of copyright law because copyright has been around for most of our country's existence (Schlachter). In fact, the fundamental basis of copyright law stems from the Constitution of the United States. In Article 1, Section 8, clause 8, we find that the founding fathers wished to promote science and the useful arts by securing an exclusive right to writings. They wished to give a means for copyright protection. But, as with most of the Constitution, the founding fathers did not fully explain themselves. Much is left to interpretation the courts and further legislation by Congress. Perhaps the most important statute in the area of copyright is the Copyright Act of 1976 (17 U.S.C. sec. 101 et. seq.); it provides the basic framework for all of our present statutes.

Section 106 of the Copyright Act provides the owner of a copyright certain exclusive rights. In general, they include five safeguards:

1. Reproduction of the copyrighted work,
2. Preparation of derivative works (adaptations) based upon the copyrighted material,
3. Distribution of the work,
4. Performance of the work publicly, and
5. Displaying of the work publicly (17 U.S.C.A. sec. 106 and Circular 1).

Copyright is a legal device. One must carefully examine several factors in order to determine whether or not copyright law is applicable (17 U.S.CA. sec. 102(a)). Note that copyright law, for the most part, is federal in nature; the laws of other countries must be respected. This work will not address foreign jurisdictional matters such as the international Berne Convention, but will primarily focus upon the laws of the United States, while making reference to certain treaties and related concepts.

4. Originality

A major requirement in copyright law is that the work be original. The work must be independently conceived by its creator in order to have copyright protection. The U.S. Supreme Court explained that the primary objective of copyright law is "not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts" (Feist). The case involved the determination of lack of originality in printed, white phone directory pages. However, the test is not one of recentness. For example, assume a teacher in Orlando writes an article called "Understanding Copyright Law." Another teacher in Omaha has just completed a very similar article with the same name. Neither knows of the other's efforts. Both instructors have created an original work; hence copyright protection is afforded to each. Courts would, of course, look very closely at works that seem to mirror others or copy them verbatim as the likelihood of violation is more clear in these circumstances.

5. Expressions and Fixation

A key factor of copyright is expression. All authors, including those online, must be aware that copyright law affords protection to expressions rather than ideas (17 U.S.C.A. sec. 102(a)). Several works that do not enjoy such afforded protection include titles, names, slogans, symbols, designs, lettering, coloring, improvisational speeches, unrecorded performances, concepts, devices, systems, methods, and calendars. Many times other legal protections such as trademark, trade name, and patent come into play. Examples of copyrightable material include original, tangible forms of poetry, literature, motion pictures, sound recordings, computer programming, music, videos, plays, photographs, drawings and the like. The work also needs to be fixed: when its embodiment

is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is 'fixed' for purposes of this title if a fixation of the work is being made simultaneously with its transmission (17 U.S.C.A. sec. 101).

Just about any form of original expression qualifies as a tangible medium. This includes a computer's random access memory (RAM) as well as notes hurriedly penned upon the back of a table napkin. When dealing with cyberspace, we need to address a multitude of items (such as downloading or copying onto discs and hard drives). Care must be taken to avoid activities that may constitute a violation of fixed, tangible expressions covered by copyright law. These would include copying and/or using someone's work outright, but the problem is that copyright takes so many different forms. For example, it has been argued that downloading constitutes copying and may very well be an infringement. The faxing of a document also qualifies as copying. Many agree that mere transmission is not fixation (17. U.S.C. sec. 101). Case law is sparse in these areas. Nevertheless, one thing is certain: the Internet will provide numerous issues for courts to decide as a result of our advancing technological capabilities, and legislatures will be kept busy since Congress has grappled over many copyright bills of late ("Intellectual Property").

6. Formalities

a. Ownership, Registration and Duration

Ownership rights attach whenever one's expression is fixed in a tangible medium; no other action is necessary to obtain such privileges. Thus, usually the people who create the expression own the copyright, but there are exceptions. For example, if an employee in the course of his or her employment does such a tangible work, the employer owns the copyright of it. Or, if the creator sells the copyright it becomes the property of the business or person who purchases it. Faculty should be careful in reading contracts as well as faculty handbook language that may be incorporated by reference into contractual agreements regarding copyright ownership. There is no controlling case law in this area, in light of recent legislation.

It is often surprising to educators that no major protocol exists to obtain copyright protection. It is no longer necessary to provide notice (discussed below). Registration, however, is advisable. This is the process by which one informs the U.S. Copyright Office of copyright ownership. The Copyright Office provides simple forms (17 U.S.C. sec. 101). All that is necessary is filing out the paperwork, paying a fee of as little as $30 and providing a copy of your expression. Registration assists in protecting one's rights, enjoining others, and obtaining statutory and civil remedies. In fact, registration is required in order to bring an infringement suit (Field).

Regarding the length of time that copyright protection lasts on one's work, it used to run for an artist's lifetime plus fifty years. In 1998, President Clinton signed The Sonny Bono Copyright Term Extension Act, a measure extending the above term for an additional twenty years (Pub. L. No. 105-298 and 17 U.S.C. secs. 302 & 2589).

If the work is for hire, that is, it is done in the course of employment or has been commissioned, the copyright lasts between 95 and 120 years, depending on the date of publication. Publication includes sales, leasing, freely giving away, and public distribution.

b. Notice

Most are familiar with the old copyright notification symbols. They usually contain a C in a circular symbol ©, or the actual word "copyright," followed by the year and the name of the owner.

Example:

_____________________________________
Copyright (or "copyright,") or © 1997 Bill Kane
_____________________________________

In March 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention Implementation Act of 1988). This multinational treaty provided copyright mutual protection and made notice symbols obsolete. By joining Berne, the United States and member nations recognize and respect each other's laws, at least minimally. There are advocates of the notice can't hurt rule, but it remains an optional tool at best.

B. The Fair Use Doctrine

There are several defenses available for those who have allegedly violated copyright. Among these defenses are:

• The work is in the public domain. For example, federal documents are not afforded the protections of copyright law,
• The copyright may be expired, or the holder may have forfeited his or her rights to the work, or
• The copyright holder may have granted permission to another to use the work.

Fair use is also an exception to normal copyright legalities (17 U.S.C. sec. 107). It allows, in a limited manner, use of copyrighted, protected materials in items for purposes of parody, news reports, comedic acts, research and education. The law considers four factors in determining if fair use is applicable as a defense. They are: (1) the purpose and character of the use, including whether use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work (emphasis added) (510 U.S. 569, 1214 S. Ct. 1164 (1994)).

Fair use is on a case-by-case basis, demonstrated in the case of Campbell v. Acuff-Rose Music, Inc., 510 US 569, 114 S. Ct. 1164 (1994). The Court corrected two common errors of the lower courts. One was to treat the market effect factor as being the most important factor. The other error was to give copyrighted works class treatment by holding, for example, that since the copying of material from one book is infringement, copying from all books is infringement. The Court stressed that simple piracy is to be distinguished from those raising reasonable contentions of fair use. In Campbell the Supreme Court reversed the Sixth Circuit Court, claiming that it erred in finding copyright infringement against the band 2 Live Crew. 114 S. Ct. at 1174-1179. The petitioners were band members Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs. The group parodied Roy Orbison's "Pretty Woman" in a song Campbell entitled "Pretty Woman." After nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skywalker Records.

The four-factor test was applied as follows:

1. The purpose and character of the use was a parody,
2. The nature of the copyrighted song does not prevent commercial use of a parody,
3. The portion used was only the necessary amount, as no more of the lyrics were taken than were necessary in relation to the purpose of parody, and
4. The parody was unlikely to have a large effect on the marketplace (Cornell University School of Law).

The major problem with fair use is that few courts have addressed academic concerns. Compare Basic Books, Inc. v. Kinko's Graphics Corp. (785 F. Supp.1522 (1991)) with American Geophysical Union v. Texaco, Inc. (60 F. 23d 913 at 916 (1994)). These two cases are from the same federal district court with differing results regarding photocopying for education and personal use.

1. Confusing the Issue with CONFU

In October 1996, The Working Group on Intellectual Property Rights in the Electronic Environment under the Clinton Administration proposed guidelines under The Conference on Fair Use (CONFU). CONFU was initiated in September 1994 and ended May 1997. The U.S. Patent and Trademark Office hosted the event where informal talks regarding over twenty topics of interest occurred. No proposals, however, garnered any strong support by participants. CONFU's objective, among others, was to cover fair use in educational settings regarding electronic materials (CONFU Report). CONFU offered no solid guidance concerning online course materials; since this subject matter is so new to our legal system, CONFU hardly addressed it.

2. Fair Use Today Ä Still Fair?

Fair use is still somewhat convoluted. It is unclear as to what actually constitutes fair use. This is especially true in light of the passage of the Digital Millennium Copyright Act and the TEACH Act (see section III 2B, below). Also complicating the matter are new and challenging digital advancements. Section 110 (1) of the Copyright Act permits most face-to-face uses; however, copyright holders have exclusive rights to public display and public performance of their works.

There are several cases of note that provide guidance regarding instructional purposes even though they do not directly deal with education. For example, in 1991 the Court in Basic Books, Inc. v. Kinko's Graphic Corp. held that a commercial copy shop that copied course packs was not entitled to the right of fair use (60 F. 3d 913)(1994)). A similar ruling occurred in 1996 with Princeton University Press v. Michigan Document Services (99 F. 3d 1381 at 1393 (1996)). Photocopying by a for-profit corporation's lab scientist did not constitute fair use. It is interesting to note that one of the three dissents favored the making of multiple copies by professors in classroom situations. The Court did not address the issue. Future court decisions as well as possible legislation by Congress will be needed to address these matters.

II. TECHNOLOGY Ä UNWEAVING THE TANGLED WEB

A. Overview

There has been little judicial guidance in the realm of computer-mediated instruction that is so important to educators. Most case law deals with corporate liability regarding copyright infringement such as the NetCom case(see section B3 below). Some scholars claim that the Internet has provided a type of escape from copyright legalities. In other words, copyright law simply does not apply to analog transmissions, i.e., with the emergence of innovative ways of communicating such law is archaic to the information highway. This argument has had little effect upon Congress in the consideration of laws intellectual property laws.

B. Distance Learning

Distance learning refers to the delivery of educational materials that occurs when course instruction is in a non-traditional setting (University of Texas). Examples of such non-traditional settings include instruction via means of audio, video, motion picture, cable television, microwave, and of course, the Internet. The Copyright Act governs performances and displays of works, but lately, the educational use and transmission of copyrighted information was found to require additional legal guidance, especially when distance learning came into play.

1. Concerns for the Digital Millennium Educator: Institutional Policies and Procedures

Several institutions have addressed copyright law by implementing measures via hard copy or the Internet (John Marshall University Law School). Colleges and universities even offer curriculum subjects on intellectual property matters. At conferences nationwide, educators have expressed the need for institutions to provide offerings in areas such as copyright, trademark, patent, etc. There are many excellent resources available to those not familiar with these issues. The most complete resource I have found is from the State Copyright Regents Committee's Office of Legal Affairs at the University of Georgia. Also, the Copyright Clearance Center has a free handout ("Guidelines for Creating.")

2. Web-Related Issues

 Copyright concerns have surfaced about linking to a web site without permission. Such linkage probably would be beneficial to businesses. It is clear that the mere provision of access to another's site, as long as no one improperly uses or steals goods or services, gives credibility and free advertising to the company providing the site and poses no copyright problems.

Most scholars feel that some issues will remain constant. In other words, treatment of material on the Web is similar to that of literature. While information on the Web may be protected, it should be noted that copyright protection does not extend to computer systems, processes and the like. Copyright protections do not cover machinery. Clearly, actions such as browsing, e-mailing and related practices seem free of major problems. Section 110 of the Copyright Act addresses copyrighted works regarding distance education; however, the language of the statute has been quite befuddling. Section 110(2) has allowed for transmissions of a performance or display, but only within defined limits, i.e., it was usually a performance sent to somewhere beyond the place of origination. Note that before 2002, Section 110(2) allowed displays of nearly all works, but it confines the allowed performance to a non-dramatic literary or musical work. Thus, a professor may read a book concerning the Titanic aloud, but showing the movie of the same name is quite another matter. When passed in 1976, Section 110(2) involved only television technology. The waters then got even murkier when information became capable of being transmitted via the Internet.

3. The NetCom Case

In the case of Religious Technology Center v. Netcom On-Line Communications Services, Inc. (referred to as NetCom) (907 F. Supp. 1361 (1995)), NetCom found itself ensnarled in a copyright infringement suit. The case centers upon a former Church of Scientology minister, Dennis Erlich; he copied some works of L. Ron Hubbard and then placed them on Usenet, a newsgroup service. Erlich accessed Usenet via a Bulletin Board Service (BBS)--Netcom provided linkage. Plaintiffs Religious Technology Center and Bridge Publications, Inc. sued Erlich as well as the BBS operator, Tom Klemesrud, and the Internet access provider, NetCom. The plaintiffs informed both Klemesrud and NetCom of the infringement, but they contended that it would be impossible to prescreen Erlich's postings. Furthermore, NetCom stated that removing Erlich from the Internet would mean affecting hundreds of users of Klemesrud's BBS. The case turned on NetCom's potential liability. The Court granted in part and denied in part the plaintiffs' motion for a preliminary injunction against Erlich (907 F. at 1361 and 1364). In the other opinion (923 F. Supp. 1231 (1995)) the Court granted in part and denied in part NetCom's and Klemesrud's motions for summary judgment as well as judgment on the pleadings and denied plaintiffs' motion for a preliminary injunction.

Traditionally, as seen in Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (1993), copyright infringement has been a "strict liability" offense, i.e., the infringer may be liable for the illegal act even if he neither knew nor had reason to know of it. The plaintiff sued NetCom on three liability theories: direct, vicarious, and contributory. The Court held that direct liability was inapplicable in that NetCom did not engage in any action that caused a direct violation of copyright law; the company merely created a copy for a third party. The postings resulted in the creation of copies on NetCom's storage devices, but the creation of the copies as well as their distribution and display was done without any volitional act (907 F. Supp. at 1372-73).

Regarding vicarious liability, i.e. liability based upon the actions of another, the Court stated that the plaintiff failed to prove the defendant had the required control over the infringer sufficient to show NetCom made any gain. However, on the issue of contributory liability, i.e., assisting in any inappropriateness, the Court held there did exist evidence presenting a viable question of fact as to whether NetCom did have knowledge then failed to take appropriate action. The plaintiff informed NetCom of the infringement. The Court held that failure to take action equaled substantial participation, which resulted in potential liability for the storage of data. The Court also stated that Erlich in fact had infringed on copyright. However, the case regarding NetCom was ultimately settled out of court in 1996 (Hayes).

C. Permission: The Rule of the Day

Since copyright law is still a bit muddled when it comes to issues involving teaching, distance education and the like, obtaining consent is usually a smart thing to do. In fact, it is the best thing to do to ensure legality. For example, whenever materials are being used for commercial or profit purposes, obtaining permission is essential. Most of us forget that educational institutions are here to make money; organizations charge fees for distance learning. Not only is getting permission good "netiquette," it will save dollars down the road and potential loss of employment for those responsible. When viewing another's work, ask the following questions:

1. Does copyright law protect this work?
2. Am I trying to use and copy it for myself as my own work?
3. Does any exception to the law apply (e.g., fair use)?

When in doubt, simply ask permission, and above all, get it in writing.

D. Legality: Truth or Consequences

Realistically, most educators have never been faced with copyright-related lawsuits for good reason: a cause of action is simply too expensive for the plaintiff to pursue. In the past, only a few suits have been filed against faculty. However, there are valid reasons for obedience to the law; universities and colleges bear responsibility of complying with these laws. They will most likely be targets of the deep-pocket legal action. Even though most unauthorized uses are never litigated, if ever discovered, one must be aware of these intricate rules. This is very important when it comes to our educational institutions as well as teachers.

The consequences of copyright violation are housed in an infringement complaint. Along with civil and statutory awards for each violation, criminal penalties could be meted out (17. U.S.C. secs. 504-506). Federal criminal consequences have been revised with the passage of The Digital Millennium Copyright Act (see III below).In the case of cyberspace, if guidance is not effectively dispatched, many will find themselves facing legal liability in the future.

III. COPYRIGHT'S FINAL FRONTIER?

A. The Digital Millennium Copyright Act

1. Overview

On October 28, 1998, then-President Clinton signed a bill providing new game rules for the treatment and respect of online copyrighted material. The Digital Millennium Copyright Act (DMCA) (H.R.2281) served as the subject of debate for many interested in copyright law. Both houses of the 105th Congress gave it the green light earlier in the month of October (U.S. Copyright). The bills was numbered S.2037 in the Senate. S.1121, another bill, was abandoned with the passage of this legislation. The DMCA adds two new chapters to Title 17, as it strengthens international law worldwide and protects domestic technology. President Clinton released a statement after its passage ("Statement by the President").

The 150-page document divides into five titles (see Table below).

2. The DMCA in Depth

Specifically, the DMCA:

1. Limits copyright infringement liability for Internet Service Providers (ISPs) for the mere transmission of information as a conduit or transient host, provided no knowledge or financial gain is present,
2. Establishes guidelines for the removal by ISPs of material from the Internet that appears to be an infringement upon the knowledge by the ISP,
3. Limits liability against institutions when faculty members use educational facilities in order to publish materials electronically,
4. Makes criminal the circumvention of anti-piracy devices, also known as "little black boxes,"
5. Outlaws code-cracking devices, but not ones being employed for research, testing, law enforcement activities and related legal means,
6. States that the fair use doctrine remains a viable defense in copyright infringement matters, but does not go into much detail,
7. Updates the library exemption for facilities to take advantage of digital technology while engaging in activities similar to those for non-digital methodologies,
8. Directs The Register of Copyright to consult with educators, copyright owners and libraries, and to submit recommendations for the promotion of distance education through digital means, and
9. Implements two treaties regarding the respecting of copyright laws internationally.

The legislation has significant impact on our international status. Although, technically the Senate must still ratify international pacts before governments of the world give credence to the measure, the law does prepare for the ratification and execution of two treaties regarding the World Intellectual Property Organization (WIPO). In December 1996, over 150 countries agreed at a WIPO conference on digital information and copyrights in Geneva. The first treaty addresses digital authors' rights. The second pact focuses upon the Internet and sound recordings. Thirty nations were required to ratify the agreement for it to be effective globally. Internet service providers, software industry groups, and music/movie companies heralded the DMCA. Many applauded the efforts of Congress and the President; however, members of the academic and research communities have mixed feelings about the measure. Some claim the DMCA would hinder concepts of fair use and other acceptable means of validly utilizing copyrighted materials. Concerns regarding educational use continue as a result. There are those who also cite the measure stifles operation, free thought, expression, system corrections, etc. Most library organizations opposed the measure, stating it does not contain many desired provisions. The American Association for the Advancement of Science, the American Association of Law Libraries, and the Association of Research Libraries were among the groups who communicated concerns about the legislation to Congress (ALA).

Among the changes, Section 108 of the DMCA now allows libraries to make up to three digital archival copies of published and unpublished materials for storage and retrieval. Previously one copy was allowed. However, the DMCA does not provide that these digital copies be made accessible to the public away from library grounds. The copy sent must arrive in analog form, and any copyright notice originally on a work should be included on the copy. If not, the library must give a legend stating that the work is possibly protected by copyright law.

Perhaps the ideas of many are expressed by the Digital Future Coalition, or DFC. The DFC is a 42-member organization comprised of non-profit and for-profit entities interested in intellectual property law in the digital era. According to American University Washington School of Law Professor and DFC Member Peter Jaszi, "This legislation is a substantial victory for both the creators and consumers of intellectual property because it provides meaningful protection while recognizing the traditional balance between owners' rights and the privileges of legitimate users" (DFC).

B. The TEACH Act: Copyrighting the Digital Classroom

1. Overview

On November 2, 2002, President Bush signed into law the 21st Century Department of Justice Appropriations Authorization Act (H.R. 2215), which includes the Technology, Education, and Copyright Harmonization Act of 2001 (TEACH Act) with technical amendments to the Copyright Act (U.S. Copyright). On March 13, 2001 The United States Senate Judiciary Committee met to discuss the measure, S. 487, (the Copyright Technical Corrections Act, previously introduced as H.R. 614). Senators Hatch of Utah and Leahy of Vermont co-wrote the bill in order to amend sections 112 and 110 of Title 17 of the United States Code (Pub. L. 105-304). It gives credence to the report by Marybeth Peters, Register of Copyrights, to extend fair use regarding distance education. The Senate passed the measure in June 2001 (Carnevale). Section 110 of the U.S. Copyright Act includes ten subsections. However, subsections one and two have the most impact regarding the new law (Software & Information Industry Association). After President Bush signed the TEACH Act, Mark Bohannon, General Counsel & Senior Vice President, Public Policy, issued the following statement: "We welcome the signing into law of the TEACH Act and believe that the Act will play a constructive role in spurring the creation of new, innovative distance education programs Ä We are pleased that the copyright, university and library communities were able to work effectively together to achieve this legislation." (Copyright Management Center at Indiana University, Purdue University and Cornell University School of Law)

2. TEACH in depth

The TEACH Act calls for safeguards against retention or distribution of copies, other than as needed to teach, and against interference with technological measures used by the copyright owner as well as permitting institutions to upload a copyrighted work onto a server under specific instances as defined by the Act and set out below. This will afford opportunities to allow certain schools to show audio-visual works via Internet and other related means.

The TEACH Act extends Section 110 as to the expansion of uses allowed to include the performance and display of more works in the distance educational realm, by analog as well as digital means. The TEACH Act amends Sec. 110(2) to broaden permitted uses to include the performance of any work by "reasonable and limited" portions. It also gets rids of the need for a physical classroom, a sort of neutral application regarding medium of information transmission so to speak. The TEACH Act clears up instructional activities exempted in Sec. 110(2) as applicable to analog and digital transmissions, allowing in a limited fashion the reproduction and distribution of copies created as part of the automated process of digital transmissions. It also applies technological measures for unauthorized using and access thereto and permits safeguards for copyright owners by requiring institutions using the exemption to promote compliance with copyright law (TEACH Act and Educause). Many praise the measure (ALA, AAU and Crews). The TEACH Act is far from sweeping. It provides flexibility only for accredited, non-profit educational institutions as part of "mediated instructional activities" to utilize Internet sources in the provision of copyrighted materials to distance education students. This means that the materials are used directly in relation to and/or for assistance in teaching the particular subject matter or course content.

The TEACH Act is far from a cure-all for educators; it affords rights and protections but in a somewhat limited manner. There are, indeed, qualifications to the applicability of the TEACH Act. The following 10 points summarize these qualifications:

• When digitizing analog works, the law mandates that no digital version is available, and it must be free from technological protections that would prevent their uses as authorized under Section 110,
• Materials may be uploaded onto a server to be disseminated only to students enrolled in a secure course in accordance with Section 110 (The type and amount of materials proscribed by the new law consist of whole performances of nondramatic literary and musical works; "reasonable and limited" portions of dramatic literary, musical, or audiovisual work; and displays of works, such as images, in amounts similar to typical displays in face-to-face teaching (i.e. stills, e.g.),
• The materials cannot be made available to the public, especially while the course is not in session,
• Materials should be made available during "classtime" of a regular course offering,
• Retention of materials by the institution is permitted, to the extent it is necessary for asynchronous instruction thereof,
• Participating schools would have to utilize technologically sound measures to reasonably prevent those in possession of the materials from using them beyond the class session as well as distributing same in the future (State University of Texas),
• The TEACH Act amends Section 112 regarding ephemeral recordings, i.e., copies can be kept solely for transmission purposes pursuant to Section 110(2),
• Faculty involved in the process must be educated about copyright law according to the TEACH Act,
• In general, supervision and policing by the school and instructor are deemed crucial, so as to protect the rights of the copyright holder regarding performance or display at the institution [50], and
• The institution must provide notice to students that materials used are or may be copyrighted as well as informational materials concerning copyright on the whole (University of Texas).

IV. CONCLUSION

Over the last few years, the copyright road has taken several twists. The DMCA and TEACH Act will face tests in courtrooms across the country, and it appears that it is a bit early to tell how new pieces of legislation will affect copyright on the whole. Perhaps amendments or even further statutory guidelines by the federal legislature will be necessary in order to alleviate concerns. Among the problems is the applicability of the fair-use exception so relied upon by web-based educators and by many others. However, if we are to advance in the digital millennium, we must compromise between right and rule, between freethinking and structured regulation. Only time will tell how these changes in copyright law will ultimately affect our activities in the age of electronic education.

References

17 U.S.C.A. sec. 101 (1996).

17 U.S.C. secs. 101 et seq. (1994).

17 U.S.C.A. sec. 102(a) (1996).

17 U.S.C. sec. 107 (2000).

17 U.S.C. secs. 302 and 2589.

17 U.S.C. secs. 408 and 409.

17 U.S.C. secs. 504-506.

18 U.S.C. sec. 2319(b).

60 F. 3d 913 (2d Cir.1994).

99 F. 3d 1381 (6^th Cir. 1996).

510 U.S. 569, 114 S. Ct. 1164 (1994).

785 F. Supp. 1522 (S.D. N.Y. 1991).

839 F. Supp. 1552 (M.D. Fla. 1993).

907 F. Supp. 1361 (N.D. Cal. 1995).

923 F. Supp. 1231 (N.D. Cal. 1995).

ACLU v. Reno, 929 F. Supp.824 (E.D. Pa. 1996).

AALL: The American Association of Law Libraries

at http://www.ll.georgetown.edu/aallwash/ib0720013.html

 

AAU: The Association of American Universities

at http://www.aau.edu/intellect/copyri.html

and http://www.aau.edu/intellect/SA487Test6.27.01.html

 

ALA: The America Library Association

at http://www.ala.org/washoff/teach.pdf

and http://www.ala.org/washoff/disted.html

and ALA's News and Views, June 10, 1998, http://www.ala.org/news/copyright.html

 

Association of Research Libraries Washington, D.C.

Press Release, Sept. 29, 1998, http://arl.cni.org

 

Berne Convention Implementation Act of 1988

Pub. L. No. 100-568, 102 Stat. 2853 (codified in 17 U.S.C.A. sec. 101 (1996)).

 

Carnevale, Dale. (2001).

"Senate Passes a Bill Extending Copyright Exemption to Online Courses." The Chronicle of Higher Education, June 12. http://chronicle.com/free/2001/06/2001061201u.htm

 

CONFU Report

at: http://uspto.gov/web/offices/dcom/olia/confu/conclu1.html

 

Copyright Management Center, The.

Indiana University-Purdue University at: http://www.copyright.iupui.edu/sec110(2).htm

 

Copyright Clearance Center.

"Guidelines for Creating a Policy for Copyright Compliance." Copyright Clearance Center. Danvers, Mass. http://www.copyright.com

 

Cornell University School of Law

at: http://supct.law.cornell.edu/supct/html/92-1292.ZO.html

and http://www4.law.cornell.edu/uscode/17/110.html

 

Crews, Kenneth. (2002).

"New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act," http://www.ala.org/washoff/teach.html

 

DFC: The Digital Future Coalition

at http://www.dfc.org/dfc1/Archives/wipo/pr101698.html

 

Educause

at: http://www.educause.edu/ir/library/pdf/ERM01610.pdf

 

Feist Publications, Inc. v. Rural Tel. Ser. Co.

499 U.S. 340, 349-50 (1991). http://www.seamless.com/rcl/feist.html

 

Field, Thomas G. (2002).

"Copyright for Computer Authors." Franklin Pierce Law Center

at: http://www.fplc.edu/tfield/copySof.htm

 

Hayes, David L. (1998)

"Application of Copyright Rights to Specific Acts on the Internet." 15 No. 8, Computer Law 1, August.

 

John Marshall University Law School

at http://www.jmls.edu/cyber/others.html

 

Litman, Jessica. (1994).

"The Exclusive Right to Read." 13 Cardozo Arts & Ent. L.J. 29. http://www.msen.com/~litman/read.htm

 

Office of the President's Press Secretary, The White House

"Statement by the President." October 12, 1998

formerly at ftp://ftp.aimnet.com/pub/users/carroll/law/copyright/h2281- res.txt

 

Pub. Law. No. 105-298, 112 Stat. 2827 (1998).

Pub. Law 105-304 (1998)

at http://lcweb.loc.gov/copyright/legislation/hr2281.pdf

and http://lcweb.loc.gov/copyright/legislation/dmca.pdf

and http://lcweb.loc.gov/copyright/disted/

 

Schlachter, Eric. (1997).

"The Intellectual Property Renaissance in Cyberspace; Why Copyright Law Could be Unimportant on the Internet" 12 Berkeley Tech. L.J. 1.

 

Software & Information Industry Association, The, (SIIA)

at: http://www.siia.net/sharedcontent/press/2002/11-4-02.html

 

Templeton, Brad.

"Ten Big Myths about Copyright Explained," http://www.clari.net/brad/copymyths.html

 

The TEACH Act (Technology, Education and Harmonization Act)

S. 487, H.R. 614, incorporated into H.R. 2215, 21st Century Department of Justice Appropriations Authorization Act

at http://thomas.loc.gov/cgi-bin/query/z?c107:S.487.ES

and http://www.copyright.gov/legislation/

 

University of Texas

at http://www.utsystems.edu/OGC/intellectualproperty/distguid.htm

and http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm

 

U.S. Copyright Office, The

at http://www.copyright.gov/title17/92chap1.html#110

U.S. Copyright Office.

"Circular 1." U.S. Copyright Office. http://www.copyright.gov/circs/circ1.html

 

U.S. Government Printing Office

"Circular 21: Reproduction of Copyrighted Works by Educators and Librarians." Washington, D.C., 1995.

United States Department of Commerce, Information Infrastructure Task Force.

"Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property" (The White Paper). United States Department of Commerce, Information Infrastructure Task Force. 10-11 (1995).

Academic Exchange Extra invites reader responses to any writings in this issue--especially articles advancing the scholarly debate of issues raised.

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