Office of Legal Affairs

Ready resources:

Introduction

The idea that granting the creators and owners of original intellectual works will stimulate the creation of such works is as old as our nation. The federal government's role in protecting intellectual property rights is established in the Constitution of the United States of America, which in Section 8 of Article I establishes Congress's power and responsibility "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Federal copyright protections are intended to strike a balance between preserving the intellectual property rights of those who create writings, works of art, software, and other forms of intellectual property -- including the right to control the use of such works and to profit from their use -- and the need for widespread access and availability of such works for teaching, scholarship, and criticism.

While the Internet has made possible the distribution of intellectual property with speed and economy never before imagined, it has also enabled the owners of intellectual property to police its use with thoroughness never before imagined, through the use of automated protocols. Though sometimes the questions are difficult, and the answers inconvenient, the complexities of federal copyright protection are with us to stay.

The Office of Legal Affairs regularly fields questions regarding specific uses of intellectual property and their relationship to copyright protections. While the materials presented here are intended as a general guide, Georgia Southern University faculty and staff are encouraged to seek clarification from the Office of Legal Affairs whenever there is doubt concerning the use of copyrighted materials. The following information applies only to copyrighted materials. It does not apply to materials that are in the public domain or uncopyrighted governmental materials. Guidelines for appropriate attribution of excerpted or quoted works apply to all works, whether or not copyrighted.

Fair Use Doctrine

The Copyright Act generally protects the author or owner of a work's exclusive right to publish, distribute or perform the work. This general protection is subject to several exceptions, among them the Fair Use doctrine, codified at Section 107 of the Act. The Fair Use doctrine provides that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified [in Sections 106 and 106A of the Copyright Act], for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Though it lists the purposes for which one may make fair use of copyrighted materials, the statute does not give us much of a definition of fair use. Instead, we are given four factors to consider in judging whether a particular use of copyrighted materials is fair:

(1) the purpose and character of the use, including whether such 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.

Since the rule is stated so vaguely, it is understandable that there is much confusion. Publishers seek to limit fair use to the absolute minimum, in order to stimulate sales of published materials and maximize profits. But it is the courts and not the publishers that flesh these four factors out. Though the statute is somewhat murky, it is worth noting that its inclusion in the Copyright Act of 1976 did not establish a new rule. In fact, the doctrine had already long existed as a judicial limitation on copyright, and was therefore understood by the legal system. There have emerged some points that help us navigate.

Movies in the classroom:

One of the most common fair use questions has to do with the use of movies, television shows, or other recorded performances in the classroom. Most of the time, instructors obtain such recordings by renting or purchasing them in VHS or DVD form at a local store or other retailer such as Amazon.com, or by downloading them from online sources such as Amazon.com or iTunes. A work obtained in these ways usually carries with it a license, or permission to use the work, that extends by its terms only to viewing the work in private homes. However, it is considered a fair use of such works to display them in a face-to face classroom setting when all of the following conditions are met:

The work was lawfully obtained (e.g., not illegally copied)
The work is displayed in the classroom;
Viewing the work is a part of the course content of a for-credit course, and is required of students in the course; and
Display of the work is limited to students who are signed up and receiving credit for the course.

Therefore, it is fair use of a movie to show it in class to students who are members of that class and who are physically present, but it is not fair use (and therefore usually constitutes infringement) to show the movie to persons not receiving credit for a particular class, such as persons attending a film festival. This is true regardless of whether admission is charged. Movie distributors generally make available (at higher cost) for rent copies of movies that carry broader licenses, and may be shown to groups in a more public setting.

Copying printed materials:

In 1976, an ad hoc committee composed of representatives of educational groups and publisher associations wrote a set of mutually agreeable guidelines that, though they do not carry the force of law, are nevertheless quite helpful in determining whether the copying an distribution of copyrighted materials in a classroom setting falls with the fair use rule. Unfortunately, the guidelines themselves are complex in their own right, but they at least establish some boundaries as to what might, in good faith, be considered fair use.

The TEACH Act

The Technology, Education, and Copyright Harmonization Act of 2002, codified in Section 110 of the Copyright Act, was an attempt to clear up questions related to distance and online learning. In very broad terms, the TEACH Act provides that an instructor may make use of recorded materials in online and distance education settings in ways analogous to how those same materials might be presented in the face-to-face classroom setting under the existing fair use rules, and such use will not be considered an infringement. However, as often happens, the TEACH Act introduces as many complex issues as it clears up.

Several elements must be in place for the online use of materials not to be considered an infringement:

The display of the materials is made by or under the direction of an instructor as an integral part of a class session offered as a regular part of systematic mediated instructional activities. In other words, the materials are integrated into the content of a for-credit class. The display may be synchronous or asynchronous.
Access to the materials is limited to students enrolled in the class, and the institution must take reasonable measures to prevent unauthorized access, reproduction, retention, or re-transmission of the materials.
Students must be informed (through the use of an introductory screen or other means) that course content may include copyrighted materials which may not be reproduced, retained, or retransmitted.

Expressly excluded from the TEACH Act's protections:

Transmitting portions of textbooks, course packs, or other materials which are typically purchased by students.
Interfering with or defeating technological measures used by copyright owners to prevent unauthorized retention or dissemination. In other words, defeating copy protection is not allowed.
Transmitting unlawfully obtained materials (i.e., materials obtained through the circumvention of digital copy protections).

Determining whether a particular use of electronic materials is deemed not to be a copyright infringement under the TEACH Act may be easier through the use of a checklist.

What materials are copyrighted

Though the United States Copyright Office offers a registration process to those interested in obtaining the maximum protection for their copyrighted materials, the registration is merely a formal recognition of a right that exists automatically by operation of law. In fact, any of the categories of work recognized under the Copyright Act is automatically subject to copyright protections the moment is recorded in any form, be it electronic, painted on a canvas, or scrawled on a legal pad.

Materials in the public domain

Materials that are in the public domain are not subject to copyright protections, and may be copied, displayed, and distributed at will. Materials may enter the public domain through expiration of the copyright, by the decision of the copyright owner to place the materials in the public domain, or by virtue of the fact that the materials were not subject to copyright protections to begin with (such as is the case with many government document). Naturally, the availability of materials in the public domain does not excuse their use without appropriate attribution.

The question of what materials are in the public domain may be complex, because a single item might be subject to more than one copyright, not all of which might have expired. Consider these scenarios:

A compact disc containing a recording of a modern pianist playing J.S. Bach's Inventions. The works were written in 1723 and are in the public domain, but the recording of the much more recent performance of the works may still be subject to copyright.
A compact disc containing a transcribed recording of a 78 rpm record, manufactured in 1910, of a pianist playing J.S. Bach's Inventions. In this case, both the music itself and the 1910 recording of it have passed into the public domain. However, the compact disc might contain edits, alterations, or compilations of music that would, in their own right, be subject to copyright.

Deciphering copyrights isn't impossible, but it does take a bit of analysis at times, with an eye toward just what rights are owned by what parties.

Clearing up the confusion

While the Fair Use Doctrine and the TEACH Act exist for the purpose of encouraging (or at least permitting) reasonable use of copyrighted materials in educational settings, the uncertainty these rules create, coupled with at times aggressive enforcement by copyright holders, renders these laws only partially effective in creating for instructors a "safe harbor" within which they may be assured that their actions are not subject to challenge. Where doubt exists, permission for particular uses of copyrighted materials (a license) may be sought from the copyright holders. Whether this will be possible in a particular case depends on how easy or difficult it is to locate the owner of the copyright, and that owner's willingness to permit the desired use of the materials at no cost, or at a manageable cost. But where written permission for specific uses of copyrighted materials are first secured, there need be no doubt as to whether that use will (or will not) be protected under fair use rules. Stanford University Library publishes an excellent practical guide to those interested in securing copyright permissions, the Introduction to the Permitting Process. Many copyright owners are participate in the Copyright Clearance Center, a clearinghouse useful for obtaining copyright permissions for a broad range of copyrighted materials.

Music performance licenses

Live public performance of copyrighted music is, in most cases, covered under one of the blanket license agreements the University maintains with ASCAP, BMI, and SESAC. Such licenses also cover public use of recorded music, such as that played in public spaces, telephone hold music, and the University radio station. Questions about specific uses permitted under these licenses should be referred to the Office of Legal Affairs.

File Sharing

Various pieces of software floating around on the Internet and elsewhere enable users to illegally download unlicensed music, videos, or software for free, and to share those files with others who would also like free access to these materials. Not everyone agrees that this practice ought to be illegal, but nobody can deny that it is. Trade organizations such as the Recording Industry Association of America (RIAA) are aggressively opposing free file-sharing. The RIAA is filing suits against college and university students who have copyrighted materials available for file-sharing on their computers.

The RIAA and other trade groups regularly notify Georgia Southern University of the presence of unlicensed materials in file-sharing programs on machines hooked to our network. Under the law, Georgia Southern could face liability if it fails to disable the account and notify the account holder why this has happened. To prevent this, we move quickly to fulfill our legal duties and prevent further distribution of unlicensed files over our network.

A lot of Georgia Southern students have been getting these notices from the Office of Legal Affairs. Because having illegal file-sharing software and content on a computer hooked to our network is a violation of Georgia Southern's computer use policy, the names of students about whom we receive these notices are turned over to Judicial Affairs.

The Office of Legal Affairs moves quickly to protect the University from liability in these situations. Students should work with Information Technology Services to restore their online accounts.

The Office of Legal Affairs exists for the purpose of serving the legal needs of the University, and cannot offer students legal advice in these matters. A few words of general information might be in order, however:

The RIAA and the other industry groups do sometimes sue students. Just because you get a notice from the Office of Legal Affairs doesn't mean you are being sued. The Office of Legal Affairs does not know whether you are being sued or not. If you require legal advice, you will need to contact your own attorney.
Not all downloaded music, videos, and software is illegal. For example, providers such as iTunes, Napster, and Ruckus provide legal licensed product. Realize, however, that just because you are rightfully in possession of a music file does not give you the right to distribute it to others via file-sharing software.

The RIAA and other industry groups have technological means to sniff out the presence of file-sharing software loaded with unlicensed content. Please don't think that illegal file-sharing won't be noticed -- the RIAA catches infringers every day.

More information about file-sharing is available online through the RIAA, the Federal Trade Commission, and the United States Copyright Office.