Northcentral University s2

EarnestMEL7007-3

NORTHCENTRAL UNIVERSITY

ASSIGNMENT COVER SHEET

Learner: Melissa Webb Earnest

THIS FORM MUST BE COMPLETELY FILLED IN

Please Follow These Procedures: If requested by your mentor, use an assignment cover sheet as the first page of the word processor file. The assignment header should include the Learner’s last name, first initial, course code, dash, and assignment number (DoeJXXX0000-1) justified to the left and the page number justified to the right.

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<Course ID Number> EL 7007 / <Faculty Mentor> Dr. Linda Collins
<Course Title> Ethical and Legal Issues / <Assignment Number or Title> Activity 3
in an Online Course

<Add Learner comments here>

Faculty Use Only

The 1976 Copyright Act of the United States and Implications for Educators

As human beings evolve, so does the society in which they reside. Conflict is a natural event because no two humans are exactly alike. When this happens, someone or some group has to make a decision as to how to solve the conflict. When we are young, it is usually the parental figure who controls the outcome. When we are in school, it is the administrator of the educational facility who controls the outcome. When we are found to be on the wrong side of the law, it is the judicial system who controls the outcome. For cases of copyright infringement, it is the legal system and judges who make the final determinations. Seems simple, does it not? However, because copyright laws in the United States have not been updated as fast as technology has evolved, this area of the legal system has become one of the most difficult to discern and solve as issues have arisen. Trying to use an act passed in 1976 for the issues of copyright violations in 2012 is understandably a problem. After all, almost forty years have passed and if one thinks critically about what was available in 1976 when compared to what is available in 2012, especially in the expanse of technology, it is easily seen how cases brought to court regarding copyright infringement would be extremely difficult and controversial to solve.

In 1976, the United States Congress passed legislation now known as the Copyright Act. The legislation actually became law on October 19, 1976 but went into effect on January 1, 1978 (Buzzle, 2012). Even though it has been updated somewhat over the years, the basic format of the act has remained intact. For the previous seventy years, copyright law had basically ignored any technological advancement, even though radio, movies and television had all evolved during the timeframe. Recognizing a need to establish laws to cover these new forms of communication, the United States Congress began deliberations on how to change the previous laws. Thus, the Copyright Act of 1976 had its beginnings.

With many sections included in the act, Section 102 specifically spells out the exclusive rights awarded to copyright holders. These include the right to: copy or reproduce; generate derivatives from the original work; lease or sell copies; public performances; public display; and digital sound recording (Buzzle, 2012). When looking at these rights and considering fair use, four criteria are also defined: purpose and character; nature of work; extent of original work used; and effect on the potential market (Buzzle, 2012). Taking into consideration the original creator, this act compromised on many points and tried to become a fair compromise between such creators and subsequent publishers and the general public. Additional sections of the act define the protection even further, including royalties and payments, how long the protection may last and what to do in case of conflict.

According to the University of California at Los Angeles Library division (2012), the duration of a copyright for a single authorship is, starting with the moment of creation, the author’s life plus seventy years. For a work with joint authorship, the copyright protection is connected to the last surviving author’s lifetime plus seventy years. In works for hire and anonymous and pseudonymous works, protection is ninety-five years from the date of publication or one hundred twenty years from the date of creation, whichever is shorter. There is some controversy as to what exactly constitutes works for hire and courts have struggled through the years to determine the best way to solve disputes. For now, works for hire are covered in Section 101 of the act and are defined as “a work prepared by an employee within the scope of his or her employment” (Burgunder, 2011, p. 243). In other words, if one is employed by a company and has an agreement with them as part of their employment, works developed may be copyrighted by the employer. This section also includes works, which have been specially ordered or commissioned.

Professor Laura N. “Lolly” Gasaway, of the University of North Carolina, has developed a chart, which is very helpful determining when a particular work passes into the public domain (2003). Dividing the chart into three areas, Gasaway makes it easy to determine whether or not a particular work is actually free to use without restrictions. Simply looking at the date of the work in the chart, Gasaway gives information as to when the work would be protected and through what term. For example, a work, which was published before 1923, is now in the public domain so there are no restrictions on its use. For educators, use of works in the public domain is safe and should cause no controversies or court cases. Educational institutions often encourage educators to look first for information in the public domain to share with students. When an educator wants to use a work outside the public domain, there are regulations and guidelines for how those works should be used. Even though the original copyright act has not been updated fully, there have been amendments and other laws put into place to cover these areas, such as the Digital Millennium Copyright Act (Sun & Baez, 2009).

The public domain is invaluable to educators. The Public Domain Review (2012) is a non-profit online project, which showcases the most interesting and unusual public domain works. According to the project Website, all works eventually move outside the copyright law and thus become free to enjoy, share and build upon without any restrictions. Educators would be advised to start here when searching for resources to use within a classroom, whether traditional or online. Their collection includes films, images, audio and all manners of articles on various subjects. Another advantage to starting a search for public domain works through the Public Domain Review is their guide, which includes a list of online collection links, including the Creative Commons Search Tool, as well as information on what constitutes public domain, and legal designations such as no rights reserved (CCO) or by attribution (CC BY).

Derivative works are those which have a basis in an already copyrighted work, but have been developed into a new, original product. “A derivative work usually involves a type of transformation, such as the transformation of a novel into a motion picture” (Tysver, 2010). Another example of a derivative work might be the second version of a computer software program, since it is more than likely based on, or an improvement of, the original, first version. Derivative works can include music, movies, art and much more. Today, many musical artists are involved in remixing, or altering original works, especially those which have already moved into the public domain. Another example would be taking an original work in English and translating it into Spanish or French. The original work is left intact, but a new work is developed on the basis of the original. All these derivative works come under the U.S. copyright law.

Copyright owners have the exclusive right to produce derivative works on their own originals. However, a copyright owner can also grant permission to someone else to develop a derivative work. The copyright on the derivative work only covers the new material and not any preexisting material. According to Stephanie Paul of Legal Zoom (2011), the lines between a new creation, a derivative work, and a copied work can be blurry, especially when considering the fair use clause. Educators are cautioned to do their homework before using something within a class to make sure the work can be utilized without copyright infringement. This is important no matter if the class being taught and using the materials is traditional or online.

Sun & Baez (2009) address the fair use claims of many colleges and universities and provide information for what is acceptable and what is not. For educators teaching online courses, the use of the Internet is so convenient, it is almost too easy to grab a resource and simply drop it into a course design without any regard for copyright law. Using such works for discussion, as a reading assignment, or displaying the work online are just some of the ways educators rely on already developed and created materials as a basis for teaching a concept. Fair use allows educators some leeway in what they use and how much they use of an original work, but they should always be cautious whenever using someone else’s work, whatever the intent may be.

From 1994 to 1997, a group interested in copyrights of educational multimedia works gathered at a conference on fair use. The group, known as CONFU, discussed guidelines which would cover distance learning as well as multimedia, digital images, and library systems (Sun & Baez, 2009). Even though no actual policy was developed, many of the attendees continued to push for changes in the copyright laws with regard to educational institutions and online, distance, or e-learning courses and the use of resource materials for teaching purposes. In the United States, “the legislative policy required the balancing of the copyright holders’ interests with educators’ and students’ interests in using copyrighted materials for distance learning” (Sun & Baez, 2009, p. 41). This focus became the basis of the Technology, Education, and Copyright Harmonization Act of 2002.

For educational institutions and educators, it should be a simple choice. When selecting materials for students, including students in online courses, the first search should always be within the public domain. If nothing is found to be satisfactory, then a wider search including copyrighted works may be acceptable, as long as the Copyright Act of 1976 and its amendments, the TEACH Act of 2002, and the fair use policies are followed. Educational institutions should have policies already in place with regard to the use of original or derivative works and these policies must be adhered to if the institution does not wish to find itself in court.

With experience in education for many years, it has often been a modest request to a creator or author for the authority to use a particular work in a class, which has been met with a firm yes. For the most part, creators or authors are excited to know the educator wants to use their work with students and many welcome the chance to discuss the intent and use of the material. The only issue is the time factor. It does take time to find the person to contact to obtain permission. But as most veteran educators know, planning lessons should not be a last minute event but something which is built over time and adjusted as needed. With online educators, the fact many courses are already developed and can be used over and over, the initial efforts to obtain permission to use various materials and resources in the course are a one-time event completed before the course is actually used. Since there is so much creativity, especially now the Internet is worldwide, if one creator or author denies a request to utilize a work within a class, it is a simple search to find comparable materials and a willing copyright owner. This really should never be an issue as long as the timeline is considered.

It is unrealistic to expect educators, especially online instructors, to never utilize creations of others within their classes, especially given the fact so much material is now at everyone’s fingertips clicking on a keyboard in front of a computer connected to the World Wide Web. Utilizing what is already there is certainly a time saver for busy educators and also a way to keep as current and relevant for students as can be. Simply having a basic knowledge of copyright law and the fair use policy of the educational institution can assist an educator in selecting proper materials for use with students. No longer are instructors limited to just one textbook on a desk in a traditional classroom. Virtual field trips, digital images and recordings, original writings from all over the world and much more are at the ready for educators to utilize. Using common sense and thinking about how the original creator or author would feel about the use of the material should make the decision on what to use and how to use it a simple one.