School of Journalism and Communication
Copyright:FAQs
Is the developing of course materials a "fair use?"
The Doctrine of Fair Use allows the limited use of a copyrighted work without permission for a limited set of uses including criticism, comment, news reporting, teaching, scholarship and research. Clearly, developing courseware would fall into this limited set of uses; but that does not end the analysis.
The Fair Use Guidelines for Educational Use:
As part of the 1976 revision of the Copyright Act, Fair Use Guidelines for Educational Use were developed. While the Guidelines are not part of the Act, they have become, in effect, the legal standards for determing Fair Use in an educational setting.
Under the guidelines, a fair use must meet several tests:
Under the Fair Use guidelines, the test is not whether the infringer is making a profit, rather it is the "effect on the potential market value of the work. If the infringer's use is clearly commercial it is not a fair use, but even if the use is non-profit (intended or overwise), the standard is the potential harm to the copyright holder's ability to profit.
The conservative answer to the question is that fair use would provide a very limited window, if any, for the use of copyrighted (or copyrightable!) artifacts. NO DIFFERENT than the current practices in textbooks, etc.
Could one or more of us claim copyright protection for our various, separate artifacts if each module was designed to be part of a larger curriculum?
Yes, if the creator is in the position to claim copyright for the work -- "work for hire" doctrine.
There is nothing that would prevent a group of professors from creating different modules and each holding the copyright to the module while licensing the use of the modules in a CD or software package, etc. Simply a matter of negogiating the scope of the licenses and the ownership of the larger package.
The more complicated question concerns the ability of the individual creators to claim copyright of the modules. I think this could become a significant issue in the future.
If you are an employee of an organization and you create an original work as part of your assigned job or you sign a contract to create a work, your employer or the entity for whom you agreed to create the work owns the copyright -- the work is a "work for hire."
Most of us in this room are employed by educational institutions and for many of us the publishing of scholarly work and/or the development of teaching materials is part of our job description. Traditionally, most of our institutions have not attempted to claim that our creative efforts are work for hire even though we do the work as part of our job, we make use of institutional resources and our advancement within the organization is dependant on our success in these creative efforts.
This may change. As colleges and universities scramble to find revenue, some are suggesting that the bio-tech model, where the university retains an ownership interest in the creative work product of professors, could become the norm.
The "sweat of the brow" doctrine:
Following Feist Publications v. Rural Telephone (1991), the fact that you worked hard doesn't mean you have an original work. There must be a minimum level of creative authorship.
What is protected in digital form: the real time product or the scripting code?
The simple answer is that the 1980 Software Amendments to the Copyright Act of 1976 clearly extended copyright protection to software. Beyond that statement, life gets very complicated and the courts are looking at these issues on a case by case basis.
"Source code," "object code," and the specific images generated by a program are all copyrightable; and to some extent the "look and feel" of a software program, is copyrightable etc., as long as they are part of the creative work and not simply a "utilitarian" or "functional" part of the program, i.e., something that makes the program run but is not part of the creative product. In the Lotus v. Borland case, the court found that the menu command hierarchy could not be copyrighted because it was a utilitarian part of the software -- it was essential to run the program but it was not part of the expression of a new idea. An attorney writing in the July 1995 issue of The Intellectual Property Strategist suggests that patent law is becoming the prefered legal protection for software because in many ways software is more an "article of manufacture," than a "work of authorship." The utilitarian parts of a software program can be protected under patent law.
Derivative works:
"Work based upon one or more preexisting works" in any "form in which a work may be recast, transformed or adapted." If the user has the permission of the copyright holder, then a copyright may be obtained for the derivative work, but the holder of the original work retains control of all subsequent uses of the original work as part of the derivative work.
Other Legal Issues: