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Copyright and Student Privacy in the Classroom Edward J. Kelly University Counsel.

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1 Copyright and Student Privacy in the Classroom Edward J. Kelly University Counsel

2 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. (US Constitution, Article 1, Section 8) Copyright and the Constitution

3 What can be copyrighted? To qualify for copyright protection, a work must be “fixed in a tangible medium of expression.” This means that the work must exist in some physical form for at least some period of time, no matter how brief.

4 What qualifies? Virtually any form of expression will qualify as a tangible medium, including a computer’s random access memory (RAM), the recording media that capture all radio and television broadcasts, the scribbled notes on the back of an envelope that contain the basis for an impromptu speech.

5 Copyright does not shelter IDEAS Copyright shelters only fixed, original and creative expression, not the ideas or facts upon which the expression is based.

6 Copyright does not shelter FACTS For similar reasons, copyright does not protect facts — whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain, free to all.

7 How long does Copyright last? For works published after 1977, the copyright lasts for the life of the author plus 70 years. If the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published. All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication.

8 Copyright requires The work must be original — that is, independently created by the author. It doesn’t matter if an author’s creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity or aesthetic merit. to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book’s white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.

9 Copyright protects rights to reproduce the work to import or export the work to create derivative works to distribute copies to publicly perform the work to publicly display the work

10 Copyright Powerpoints Your PowerPoint presentation is copyrighted the moment you create it. A PowerPoint is a tangible work that is afforded full copyright protection. Although your PowerPoint presentation is already technically copyrighted, you may want a more formal copyright procedure to protect your work. Formally copyrighting your PowerPoint presentation gets your creation on public record and affords you better protection in a court of law.

11 Unpublished works If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047. - See more at: yright-basics/#sthash.DBnxLmam.dpuf

12 Copyright Notice Not required since 1989 but good to have: An infringer cannot claim in court that he or she didn’t know it was copyrighted. The very existence of a notice might discourage infringement. Makes it easier to track down copyright holder.

13 Why Register my Copyright? If someone infringes on your copyright the protection is no longer automatic. It’s up to you to file a lawsuit in federal court and to convince the judge to order the other party to stop the infringement and compensate you for your losses. Even though you own the copyright, you can’t file your lawsuit unless you have registered the copyright with the U.S. Copyright Office. Until you register, there’s nothing you can do to stop the infringement.

14 Copyright notice A copyright notice should contain: the word “copyright” a “c” in a circle (©) the date of publication, and the name of either the author or the owner of all the copyright rights in the published work

15 Instructions 1 Register with the United States Department of Copyright's Electronic Copyright Office to submit your copyright online. 2 Log into your account and then click "Register a New Claim.“ 3 Click "Start Registration." 4 Follow the interview style questionnaire about the PowerPoint you want to register. You will be asked questions about you, your work, the title of the PowerPoint and when the PowerPoint was created. Finally, you'll be asked to upload the PowerPoint to the system. 5 Pay the filing fees.

16 Registering a copyright fill out a brief application form, which requires some basic information about the work, including: – the title of the work – who created the work and when, and – who owns the copyright. – send the application, a fee ($45) and one or two copies of all or part of the copyrighted work to the U.S. Copyright Office in Washington, D.C.

17 When can I use a work without the author’s permission? Public Domain Fair Use TEACH act

18 Fair Use The fair use statute requires the courts to consider the following questions in deciding this issue: Is it a competitive use? (does itpotentially affect the sales of the copied material?) How much material was taken compared to the entire work of which the material was a part? How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use than if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non- profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use

19 Transformative/the Grateful Dead In a case involving the reproduction of concert posters within a book, the Second Circuit determined that the reduced reproduction of concert posters within the context of a timeline was a fair use. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).

20 Computer software If you publish computer software, the single most important legal protection available to you is the federal copyright law. Many software authors don’t take advantage of its protections, and risk finding themselves virtually at the mercy of infringers — all because they don’t send in a simple registration form as soon as the software is published.

21 Web-Based Information 1 Assume its Protected 2 Read Click-Wrap Agreements 3 Remove Unauthorized Material 4 Investigate Claims Promptly 5 When in Doubt, Seek Permission

22 Coursepacks Generally not fair use Clearance house may be best option

23 Fair Use The educational use guidelines can be found in Circular 21, provided by the Copyright Office.

24 “Educational purposes” noncommercial instruction or curriculum- based teaching by educators to students at nonprofit educational institutions planned noncommercial study or investigation directed toward making a contribution to a field of knowledge, or presentation of research findings at noncommercial peer conferences, workshops, or seminars.

25 Rules for Reproducing Text Materials for Use in Class The guidelines permit a teacher to make one copy of any of the following: a chapter from a book; an article from a periodical or newspaper; a short story, short essay, or short poem; a chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.

26 Other Resources Stanford Fair Use Site Association of Research Libraries PBS Copyright Resource (video use): Visit the North Carolina State University TEACH Act Toolkit: Take the University of Texas Copyright Crash Course:

27 Copyright and the Teach Act The Technology, Education, and Copyright Harmonization Act

28 How Is Fair Use Similar to the TEACH Act? Both are part of the Copyright Act. Both place restrictions on copyright protection. Both expand the faculty’s ability to use copyrighted works.

29 How Does Fair Use Differ from the TEACH Act? The TEACH Act expanded higher education’s ability to perform and display copyrighted works in digital online instruction. As an amendment to copyright law, the TEACH Act allows educators to transmit certain copyrighted works without permission from the copyright holder, provided certain conditions are met. The TEACH Act creates a safe harbor for institutions. Individual instructors who commit copyright infringement remain liable under the TEACH Act.

30 Educational Requirements Be an accredited nonprofit educational institution (or government body) Have a copyright policy (presumably making violation of copyright subject to disciplinary action) Make available educational materials on copyright (provide “informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright”) Provide “notice to students that materials used in connection with the course may be subject to copyright protection” Conversion of analog works to digital formats is allowed only where – no digital version is “available” to the institution, or – the digital version is locked with technological protection measures that prevent its use under the TEACH Act

31 Educational Requirements For digital transmissions: – apply technological measures that will “reasonably prevent retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session”; – apply technological measures that will “reasonably prevent … further dissemination of the work in accessible form by such recipients to others” (e.g.,.pdf restrictions on copying or printing file); and – not interfere with the technology protections used by the copyright owners to prevent retention or unauthorized dissemination. These requirements for digital transmissions are sometimes referred to as “downstream controls” or as “technological protection measures (TPM)” or as “digital rights management (DRM).” ETSU must make a “reasonable” effort to protect against copyright infringement. One way of doing so is to keep the digital rights management current with new technology developments.

32 Instructor Level Requirements: The work is not a digital educational work (produced or marketed primarily for online teaching) The work has been lawfully made and acquired (cannot use source material if you know or have reason to know it is infringing copyright) Use of the work is at direction of or under supervision of the instructor for the course Use of the work is an integral part of the class session: it is Use of the work is directly related and of material assistance to the teaching content of the transmission Provide notice to students: "The materials on this course website are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated."

33 Instructor Level Requirements continued: Use of the work is part of systematic mediated instructional activity of the institution Limit reception to students in the course (the transmission must be intended solely for, and to the extent technologically feasible, restricted to, “students officially enrolled in the course for which the transmission is made”) Use of the work is limited to: – display of a work to an extent no greater than allowed in a live classroom, – performance of all of a nondramatic literary or musical work, and – performance of a reasonable and limited amount of any other work (e.g., not an entire dramatic film)

34 What this all means: Most importantly, the law now allows transmissions to any location. For example, WebCT, Blackboard, and online course reserves are permissible forums of transmission. To take advantage of these multimedia options without going through a copyright clearance process, educators must satisfy the TEACH Act requirements. Generally stated they are: – Having a copyright policy in place at the University-level.copyright policy – Providing training to faculty and staff on copyright. – Restricting access to copyrighted works made available online to instructors and students who are registered in the class.

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