A Little About Copyright Law and Ownership and the Effects on the Academy

Intro

Copyright law was created by our forefathers to protect the rights of artists and publishers by legally controlling the use and production of their works. Lynne McTaggart, author of Kathleen Kennedy: Her Life and Times, says "Writers don't own facts. Writers don't own ideas. All that we own is the way we express our thoughts."

Works-For-Hire

Copyright law gives copyright holders exclusive control over their works. Usually, if someone wants to use all or even a portion of the copyrighted material, then permission is needed. U.S. Copyright law refers to "works-for-hire" or labor executed in the normal course of employment. Typically, the work completed in this context belongs to the employer. However, over the years, much of the work that academicians have created, like research texts and other publications, has been copyrighted to that person, even if these works were created during the regular course of employment.

At most educational institutions, the copyright holders of online courses and materials fall into one of three categories :

1. policy explicitly gives ownership of publications to the faculty;
2. the institution explicitly claims copyright;
3. no policy exists.

Many legal experts believe that if this issue were to go to trial, the institutions would win because of the "work-for-hire rule." Educational institutions have begun paying close attention to products, like distance education courses and other technological creations, that are created on university time and using university resources but that are providing economic benefits to faculty members. ; like distance education courses and other technological products that are developed and are providing economic benefits to faculty members. Many universitiies have developed policies to address these issues, so that they recieve their part of the pie.

Extending Copyright Controls

Since 1962, Copyright statutes have been expanded eleven times, but they were extended only twice from 1790 to 1962. The first U.S. Copyright Act was created by George Washington and enacted by Congress in 1790. The statute gave authors of books, maps, and charts ownership of their work for up to 28 years. In 1831, Congress decided to include musical pieces. Ten years later, the "Fair Use Doctrine" was born in Massachusetts after the Folsom vs. Marsh decision. The courts ruled that an author had the right to use letters that George Washington wrote to a friend as the basis for a new work.

In 1908, the Supreme Court ruled in a copyright infringement suit filed by White-Smith Music Publishing, against Apollo Co., maker of player piano scrolls. The Supreme Court ruled that the scrolls were not copies and did not infringe. The next year, Congress amended the Copyright Act to include new technologies like piano rolls and sound recordings. In 1976 the Act was amended again in order to formalize the fair use doctrine. Congress laid out a four-part standard for determining what is fair use of copyrighted material. Sony rolled out the Betamax home videocassette recorder during the early eighties. Several companies, including Disney and Universal, sued Sony. In 1984, the Supreme Court ruled in favor of Sony because the machine could be used for non-infringing uses like time-shifting, or recording to watch at another time.

In 1998, Congress created the Sonny Bono Copyright Term Extension Act which expanded copyright limits by 20 years on existing and future works. Now, copyrighted works are protected for the author's life plus 70 years. However, the Supreme Court will determine if Congress overstepped its power by looking at the constitutionality of the Act. This is because The Constitution states copyrights should be awarded for a "limited period of time."

The Copyright Act of 1976 does not protect sound recordings created prior to February 15, 1972, but many states do have laws that protect sound recordings that were published prior to this.

Section 110 of the Copyright Act, sometimes called the "classroom exemption" act is a public performance/public show restriction, which provides exemptions on the exclusive rights of copyright holders. These exemptions allow educators and students to perform and display copyrighted works within the classroom. Notice this exemption is legal in the classroom and not on the Internet. Face-to-face instruction is the only place where non-profit educational institutions can show movies or other audio-visual digital works.

This brings us to the Technology, Education, and Copyright Harmonization Act (TEACH Act). Senator Patrick Leahy (D - Virginia) and Senator Orrin G. Hatch (R Ð Utah) introduced this legislation. The bill is based on a study completed by the U.S. Copyright Office. This bill was passed by the House on 11/02/02, and signed into law by President Bush. This bill uses the terms "reasonable and limited portions" to describe the amount of material that can be used. This act is intended to broaden the rights of educational institutions that offer online and distance education courses by extending the copyright exemption for instructional transmissions. This amendment to the Copyright Act of 1976 would allow for movies, video and recorded theatre performances to be shown over the Internet. Section 110 specifically limits the types of works that may be performed.

The TEACH Act would:

1. Expand the categories of works beyond nondramatic literary and musical;
2. Recognize that students should be able to access content anywhere at anytime they have access to a computer;
3. Allow for the storage of copyrighted materials on a server for asynchronous performances and displays;
4. Permit institutions to digitize works when they do not already exist and they are not subject to technological protection measures that prevent its use; and

5. Eliminate participants from being liable for infringement that occurs through digital transmission in authorized distance education courses.

Section 108 of the Copyright Act permits libraries or educators within libraries to make copies of certain works. Digital copies can not leave the library. There are no guidelines that say how much is enough or too much. A "safe harbor" was never established by the Conference on Fair Use because the different groups and associations could not agree on a standard set of guidelines.

Dr. Lawrence Lessig of Stanford University has established the Copyright Commons Group with the hope the group will help create broader innovation which they feel has been stifled by copyright statutes and the legal system. The group hopes to create a License or Rights clearinghouse for works such as software and poetry. The license would include the information on where the song could be used, in what form, and who needed to be paid. The group is also committed to defending the legal rights and integrity of whatever public domain content is put into the "conservancy".