Getting with the Program: Copyright Goes the Distance Distance Education Workshop Georgia Harper Office of General Counsel University of Texas System

• Introduction

For the most part, our copyright law is based on legal principles that are 200 years old, yet it governs one of the most fast-paced, cutting edge areas of our lives as educators. We may have comfortably ignored copyright law for most of our lives, but the digital environment has made that comfortable ignorance impossible. Quite simply, developing distance learning programs puts what we do right under the noses of people who have a right to be concerned about what we are doing! In order to do it right, we must understand and respect copyright owners' rights while also understanding and taking full advantage of our rights and the staggering possibilities the digital environment offers us and our students. What are the key copyright issues for administrators, faculty and librarians?

• We have to understand how the law works and our institutional and individual rights and liablities under it.

  Recently I conducted a distance learning seminar that included pre-submitted questions, ninety percent of which addressed the same three issues: educators' rights to use others' materials without permission, how to determine who owns what, and individual and institutional liabilities. These very basic questions suggest that we don't understand copyright law very well. Why not? Well, this kind of information is dense. It is not much fun. There's always something more interesting to do. Maybe we need some motivation! The first thing we should learn then is the thing that will motivate us to keep on learning: a "copyright carrot."

  Fortunately, many institutional policies and copyright law provide an incentive to understand and follow the law: The institutional indemnification policy and the Good Faith Fair Use Defense.

  • See section entitled, What Makes Copyright an Issue? in "Copyright Law for Distance Learning"

  • Forthcoming article entitled, "University Liability for Faculty Infringements"

  • See "Complying with the Digital Millennium Copyright Act"

  In order to qualify for the Good Faith Fair Use Defense, individuals need to be able to show that they reasonably believed what they did was a fair use. What kind of policy will best provide a good faith basis for believing that a use of another's work is a fair use? I would suggest that it is not one that just says, "Follow the law."
  
  

• We must develop and implement policies and guidelines that:

  • Explain how to make fair uses of others' works;

    See "Fair Use of Copyrighted Works"
    
    

  • Make it easy to get permission when it's needed;

    See "Getting Permission"
    
    

  • Clarify ownership of educational materials;

    See "Who Owns What?" and our "Intellectual Property Policy in Plain English"
    
    

  • Preserve rights to use works created on our campuses;

    See "Copyright Management"
    
    

  • Preserve rights to reimbursement for significant institutional contributions;

    See "Copyright Management"
    
    

  • Allocate responsibity for the costs associated with infringement lawsuits;

    See the indemnification section of our "Educational Materials Agreements" and the explanation of liability in "Fair Use of Copyrighted Works"
    
    

  • Support our staff who negotiate electronic access to obtain favorable license terms; and

    See "Licensing Resources"
    
    

  • Protect institutional and individually owned works.

  In short, we need comprehensive copyright policies; copyright policies that address all the issues: making fair uses of others' works, getting permission, licensing comprehensive access to reduce the need for permission, determining who owns what and protecting our interests in our works.

  So, if we have such a policy, are we home free? Not quite. A policy in some bottom desk drawer doesn't do what we need it to do.
  
  

• We must educate administrators, faculty, staff and students about our policies and guidelines so that copyright issues will be addressed before distance learning materials are created to clarify ownership and guide lawful uses of others' works.

  Our policies must inform the day-to-day decisions affecting creation and use of copyrighted works

  • See "Copyright Law for Distance Learning" and our Online Tutorial
    
    

• We must provide appropriate resources and forms of agreements to help faculty and administrators address the various issues involved in creation of distance learning materials and document their understandings.

  • See "Educational Materials Agreements"

  Agreements as to the particulars of course creation prevent later problems that can result from a failure to have a "meeting of the minds" by helping to uncover little and big differences in needs and expectations between or among the parties.

  • Example: Marty Marks had tremendous difficulties with various provisions related to his obligations and our rights to use the course for the three year term of the contract. We agonized over how to address all his objections. Finally he revealed that he planned to apply for a fellowship during the second year and would not be teaching if he got it. With this fact brought to light, we were able to deal effectively with his concerns while maintaining the course as a viable offering.

  • Example: Buster Cooksey could not comply with the schedule for submitting materials to the institution for their review and approval. Turns out that he planned to rely on his book publisher's commercial website for most of his course content. He could not perform under the contract because he wasn't creating the course materials himself.

  • Example: Dan Duster objected on principle to the copyright warranty and indemnification provisions. Turns out he had already digitized nearly the entire textbook that he uses for his course and planned to put it all online as part of the online course. No wonder he was a bit concerned about the indemnity!
    
    

• The University of Texas System Comprehensive Copyright Policy shows how our System addresses these key issues

  • See also, "Developing a Comprehensive Copyright Policy"

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