JALN Volume 3, Issue 2 - November 1999

Dr. Robert N. Diotalevi, Esq., LL.M.
Director of Legal Studies
The College of West Virginia
An Affiliate of West Virginia University
Beckley, WV
E-mail: diotalev@cwv.net

ABSTRACT
With advanced technology come new legal issues. The age of information has given rise to greater concerns about copyright legalities. As new interpretations emerge from Congress as well as the courts, these thorny matters will be at the forefront. Copyright law ultimately affects anyone interested in higher education.

KEYWORDS
ALN, Copyright, Internet, Law, Legal

I. THE LAW OF COPYRIGHT

A. The Basics
1. Overview
Copyright law is at the heart of everything we do as educators. This has never been more evident than with the emergence of the Internet as a teaching tool. The Internet was once a research project. Today it is the greatest computer system in the world. Also known as the net or cyberspace [1], this information super highway offers a tremendous amount of material. The information age has created greater concerns about copyright law. Many legal courses concerning the Internet are being offered, e.g., Internet Law at Seattle University School of Law, Cyberlaw at The University of California (Berkley), A Law of Cyberspace? at John Marshall Law School, Law and the Internet at Carleton University, Cyberspace Law 1997 at Lewis and Clark College and Law and Internet Seminar at The University of Miami School of Law. Although we are heading into a new millennium, we need to address fundamental areas so vital to educators, business people, computer professionals and the like before traveling too far into our future. The survey below represents a random polling of 72 members of Asynchronous Learning Networks (ALN) of Vanderbilt University in Nashville, Tennessee, May 1999. The ALN Center maintains a web site at http://www.aln.org as well as offers workshops, chats and labs on a variety of web-based learning tools. The survey’s goal was to elicit responses from those educators who are involved with ALNs as well as affected by issues of copyright law. Its primary focus was to determine members’ knowledge of the subject as well as concerns. Individuals were e-mailed an informational form and asked to answer three questions cited below.

ALN Survey
Total Responses: 25/72 (34.7%)

Table 1. ALN Survey of Copyright Issues.

2. Myths of Copyright
There are many misconceptions about copyright law. For example, many believe that one needs to provide notice in order to possess a copyrighted work [2]. Some think that registration is necessary or that photocopying requires express permission from the author in all cases. Also mistakes abound as to the defense of copyrights as well as thoughts of the dreaded "copyright police" coming to arrest against alleged infringement violations [3]. Copyright law is simply misunderstood.

3. What is a Copyright?
There are numerous authors who have addressed this subject [4], [5], [6]. The reason is that copyright has been around for most of our country’s existence. In fact, the fundamental basis of copyright law stems from the United States Constitution. In Article 1, Section 8, clause 8 we find that the founding fathers wished to promote science and the useful arts by securing an exclusive right to writings. Unfortunately, the fathers did not explain themselves. Perhaps the most important statute in the area of copyright is the Copyright Act of 1976 (The Copyright Act) [7]. It provides the basic framework for all of our present statutes.

4. Originality
A major requirement in copyright law is that the work be original in order to have copyright protection [10], [11], [12]. The work must be independently conceived by its creator. In Feist, the U.S. Supreme Court explained that the primary objective of copyright law is "not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts. . ." [11]. The case involved the determination of lack of originality in printed, white phone directory pages. However the test is not one of newness. For example, assume a teacher in Orlando writes an article called "Understanding Copyright Law." Another teacher in Omaha has just completed a very similar article with the same name. Neither knows of the other’s efforts. Both instructors have created an original work; hence copyright protection is afforded to each of them. Courts would of course look very closely at works that seem to mirror others or outright copy them verbatim as the likelihood of violation is more clear in these circumstances.

5. Expressions and Fixation
A key factor is expression. All authors, including those online, must be aware that copyright law affords protection to expressions rather than ideas [13], [14], [15]. Several works that do not enjoy such afforded protection include titles, names, slogans, symbols, designs, lettering, coloring, improvisational speeches, unrecorded performances, concepts, devices, systems, methods and calendars. Many times other legal protections such as trademark, trade name and patent come into play. Examples of copyrightable material include original, tangible forms of poetry, literature, motion pictures, sound recordings, computer programming, music, videos, plays, photographs, drawings and the like. The work also needs to be fixed. It is so when its embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission [16].

Just about any form of original expression qualifies as a tangible medium. This includes a computer's random access memory (RAM) as well as notes hurriedly penned upon the back of a table napkin. When dealing with cyberspace we need to address a multitude of items (such as downloading or copying onto discs and hard drives). Care must be taken to avoid activities that may constitute a violation of fixed, tangible expressions covered by copyright law (see section III of this document) [15 (p. 10-11)]. These would include copying and/or using someone’s work outright but the problem is that copyright takes so many different forms. For example, it is arguable that downloading constitutes copying and may very well be an infringement in itself. Also, the faxing of a document qualifies as copying. However, most also agree that mere transmission is not fixation [17]. Case law is sparse in these areas. Nevertheless one thing is certain: The Internet will provide many issues for courts to decide as a result of our advancing technological capabilities. Congress is grappling over bills based on the White Paper [18], [19].

6. Formalities
a. Ownership, Registration and Duration
Ownership rights attach whenever one’s expression is fixed in a tangible medium. No other action is necessary to obtain such privileges. Thus, usually the people who create the expression own the copyright thereto, but there are exceptions. For example, if an employee in the course of his or her employment does such a work, the employer owns the copyright of it. Or, if the creator sells the copyright it becomes the property of the business or person who purchases it. Faculty should be careful in reading contracts as well as faculty handbook language that may be incorporated by reference into contractual agreements regarding copyright ownership. There is no controlling case law in this area in light of recent legislation.

b. Notice
Most are familiar with the old copyright notification symbols. They usually contain a C in a circular symbol, or the actual word copyright, with the date and name of the owner.

B. The Fair Use Doctrine
There are several defenses available for those who have allegedly violated copyright. Among these defenses are:

Fair use is on a case by case basis. The case of Campbell v. Acuff-Rose Music, Inc. [28] demonstrates this. The Court corrected two common lower courts errors. One was to treat the market effect factor as being the most important factor. The other error was to give copyrighted works class treatment by holding, for example, that since the copying of material from one book is infringement, copying from all books is infringement. The Court stressed that simple piracy is to be distinguished from those raising reasonable contentions of fair use. The Supreme Court reversed the Sixth Circuit Court, claiming that it erred in finding copyright infringement against 2 Live Crew. The petitioners were band members Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs. The group parodied Roy Orbison’s "Oh, Pretty Woman" in a song Campbell entitled "Pretty Woman" (see Table 2). After nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skywalker Records. 

Table 2. A Comparison of the Two Songs as Cited in the Case’s Appendices.

1. The purpose and character of the use was a parody,

2. The nature of the copyrighted song does not prevent commercial use of a parody,

3. The portion used was only the necessary amount, as no more of the lyrics were taken than was necessary in relation to the parodic purpose, and

4. The parody was unlikely to have a large effect on the marketplace [28], [29], [30], [31].

The major problem with fair use is that few courts have addressed academic concerns. Compare Basic Books, Inc. v. Kinko’s Graphics Corp., [32] with American Geophysical Union v. Texaco, Inc. [33]. These latter two cases are from the same federal district court with differing results regarding photocopying for education and personal use. And, the latest Clinton administration bill does not clear up this matter either (discussed later).

1. Confusing the Issue with CONFU
In October 1996 The Working Group on Intellectual Property Rights in the Electronic Environment under the Clinton Administration proposed guidelines under CONFU, The Conference on Fair Use. CONFU was initiated in September 1994 and ended May 1997. The U.S. Patent & Trademark Office hosted the event. Informal talks regarding over twenty topics of interest occurred. No proposals, however, garnered any strong support by participants. CONFU’s objective, among others, was to cover fair use in educational settings regarding electronic materials [30], [34].

CONFU offered no guidance concerning online course materials. This subject matter is so new to our legal system that CONFU hardly even addressed it. Instead, CONFU participants decided to let present fair use standards as interpreted by the courts dictate most educational situations. Thus, the problem with CONFU is that it left distance teachers without a clear online strategy.

2. Fair Use Today
Fair use is still somewhat convoluted. It is unclear as to what constitutes fair use. This is especially true with the passage of the Digital Millennium Copyright Act (see section IIIB). Also complicating the matter are new and challenging digital advancements. Section 110 (1) of the Copyright Act permits most face-to-face uses. However, copyright holders have exclusive rights to public display and public performance of their works. Table 3 shows some common classroom allowed and disallowed activities gleaned from our current statutes as well as recent case law:

 Table 3. Permissible and Impermissible Uses of Copyrighted Material.

There are several cases of note that provide guidance regarding instructional purposes even though they do not directly deal with education. For example, in 1991 the court in Basic Books, Inc. v. Kinko's Graphic Corp. [32] held that a commercial copy shop that copied coursepacks was not entitled to the right of fair use. A similar ruling occurred in 1996 with Princeton University Press v. Michigan Document Services [35]. Photocopying by a for-profit corporation’s lab scientist Chickering did not constitute fair use. The Court stated, "(o)ur opinion does not decide the case that would arise if Chickering were a professor or an independent scientist engaged in copying and creating files for independent research" [35]. It is interesting to note that one of the three dissents favored the making of multiple copies by professors in classroom situations. The court did not address the issue [33]. The United States Supreme Court has not addressed this matter either.

 II. TECHNOLOGY…UNWEAVING THE TANGLED WEB

A. Overview
There is little if any judicial guidance in this area so important to educators. Most case law deals with corporate liability regarding copyright infringement such as the NetCom case (see section B3). Some scholars claim that The Internet has provided a type of escape from copyright legalities. In other words, with the emergence of innovative ways of communicating such law is not applicable to the information highway and the statutes and cases are too archaic. This argument has had little effect upon Congress in the consideration of laws. Nor have many in the field given it much if any validity.

 B. Distance Learning
Distance learning refers to the delivery of educational materials that occurs when course instruction is in a non-traditional setting [36]. Examples include audio, video, motion picture, cable television, microwave and, of course, the Internet. Section 107 of the Copyright Act governs educational performances and displays of works. But, performing and transmitting of information are different. Fair use is not helpful and CONFU seems to be silent. Thus, adoption of some solid guidance is in order to give direction in these gray areas.

1. Concerns for the Digital Millennium Educator: Institutional Policies and Procedures
Several institutions have addressed copyright law by implementing measures via hard copy or the Internet [37], [38]. Colleges and universities offer subjects on such intellectual property matters. At The College of West Virginia (CWV) we recently included two Internet courses, entitled Copyright Law and The Law of Cyberspace into our curricula. At conferences nationwide educators have expressed the need for institutions to provide offerings in these areas. There are many excellent resources available to those not familiar with these issues (see Table 4). The most complete resource I have found is by the State Copyright Regents Committee’s Office of Legal Affairs at The University of Georgia (see Table 4). It covers such topical areas as research, writing, multimedia projects and video/sound recordings. It does so by a series of questions and answers dealing with everything from unpublished letters to out-of-print books. The site contains wonderful scenarios such as professors who scan articles from copyrighted journals and add them to their web pages, the showing of copyrighted motion pictures for instructional purposes, copying videotapes for classroom instruction and the creation of telecourses utilizing copyrighted materials. And, it gives a good general overview of copyright law. Also, The Copyright Clearance Center has a free handout entitled "Guidelines for Creating a Policy for Copyright Compliance" [39].

Table 4. University Web Resources Addressing Institutional Policies and Procedures.

2. Web-related Issues
Concerns exist as to linking to a web site without permission. Such linkage probably would be beneficial to businesses. In other words, the mere provision of access to another’s site, as long as no one directly steals, gives credibility and free advertising to the company providing the site. People would be telling others of the organization free of charge. More importantly, there are other issues involving cyberspace that need to be examined.

Most scholars feel that the clear-cut issues will remain the same. In other words, treatment of material on the Web is similar to that of literature. While information on the Web may be protected, it should be noted that copyright protection does not extend to computer systems, processes and the like. Thus, the copyright protections do not cover machinery. Clearly actions such as browsing, e-mailing and related practices seem free of major problems [18 (p. 64-65, n. 2)]. Note that the White Paper indicates browsing is an infringement. Section 110 of The Copyright Act [40] addresses copyrighted works regarding distance education, however, the language of the statute is quite befuddling and needs to be examined carefully. Section 110(2) allows for the "transmission" of a performance or display, but only within defined limits. The code hereby defines "transmit" to mean communicating a performance or display "by any device or process whereby images or sounds are received beyond the place from which they are sent." Note that Section 110(2) allows displays of nearly all works, but it confines the allowed performance to a non-dramatic literary or musical works. Thus, a professor may read a book concerning The Titanic aloud, but showing the movie of the same name is quite another matter. When passed in 1976 Section 110(2) involved only television technology. The waters get even murkier when information is sent via the Internet through multiple transmissions.

3. The NetCom Case
In the case of Religious Technology Center v. Netcom On-Line Communications Services Inc. [41], [42] (referred to as NetCom), Netcom found itself ensnarled in a copysright infringement suit. The case centers upon a former Church of Scientology minister, Dennis Erlich. He copied some of the works of L. Ron Hubbard. Erlich then placed them on Usenet. Erlich accessed Usenet via a Bulletin Board Service (BBS). Netcom provided linkage. Plaintiffs Religious Technology Center and Bridge Publications, Inc., sued Erlich as well as the BBS operator, Klemesrud, and the Internet access provider, Netcom. The plaintiffs had informed both Klemesrud and NetCom of the infringement, but they contended that it would be impossible to prescreen Erlich's postings. Furthermore, NetCom stated that removing Erlich from the Internet would mean affecting hundreds of users of Klemesrud's BBS. The case turned on the NetCom’s potential liability. The court granted in part and denied in part the plaintiffs’ motion for a preliminary injunction against Erlich [42]. In the other opinion [41] the court granted in part and denied in part NetCom’s and Klemesrud’s motions for summary judgment as well as judgment on the pleadings and denied plaintiffs’ motion for a preliminary injunction.

C. Permission: The Rule of the Day
Since copyright law is a bit murky when it comes to issues involving teaching, distance education and the like, obtaining consent is usually in order. It is the best thing to do to ensure legality. For example, whenever materials are being used for commercial or profit purposes, obtaining permission is essential. Most of us forget that educational institutions are here to make money. Organizations charge fees in distance learning. Not only is getting permission proper netiquette but it will save dollars down the road and potential loss of employment for those responsible. When viewing another’s work ask the following questions:

D. Legality: Truth or Consequences
Most educators have never been faced with copyright-related lawsuits for good reason: a cause of action is simply too expensive for the plaintiff to pursue. In the past only a few suits have been filed against faculty. However, there are valid reasons for obedience to the law. Universities and colleges bear responsibility of complying with these laws. Most likely they will be the targets of the deep pocket legal action. Even though most unauthorized uses are never litigated, if ever discovered, everyone must be aware of the rules. This is important when it comes to the roles of our employees and teachers of law.

III. COPYRIGHT’S FINAL FRONTIER?

A.  Implied License
The theory of implied license has been bantered around cyberspace [52], [53]. In a case involving the validity of shrinkwrap licenses, agreements by buyers to accept the terms by opening package wrapping. The contention is that permission is automatically granted to those setting up a web page. This idea has been asserted particularly by those involved in hypertext linkage. The plain truth is that this seemingly simple solution is not as simple as it looks. There is no legal precedent regarding implied license. The best advice is for all to exercise caution and clearly acknowledge links to other sites in order to avoid liability [54], [55]. This can be achieved by contacting all known owners and/or citing one’s sources as completely as possible.

B. The Digital Millennium Copyright Act
1. Overview
On October 28, 1998, President Clinton signed a bill providing new game rules for the treatment and respecting of online copyrighted material. The Digital Millennium Copyright Act (DMCA) [56], [57] served as the subject of debate for many interested in copyright law. Both houses of the one hundred and fifth Congress gave it the green light earlier in the month of October [58], [59], [60], [61], [62]. The DMCA adds two new chapters to Title 17 as it strengthens international law worldwide and protects domestic technology. President Clinton released the following statement after passage: