ERIC Identifier: ED435382
Publication Date: 1999-00-00
Author: Walther, James H.
Source: ERIC Clearinghouse on
Higher Education Washington DC.| BBB32577 _ George Washington Univ. Washington
DC. Graduate School of Education and Human Development.
Change in the Age of Technology: A New Look at Licensing and
Copyright for Colleges and Universities. ERIC Digest.
Developments due to the rapid expansion of technology have
resulted inrecent changes to U.S. copyright law. In an action that reflects
thegrowing interest of technology in our society and especially in
highereducation, President Clinton signed the Digital Millennium Copyright
Actinto law in 1998. This law provides guidelines for campuses to use increating
copyright policy. This digest will offer a brief overview oflicensing and
copyright issues, as well as practical advice and resourcesfor further
AN EXAMINATION OF LICENSING ISSUES
Because of advances in
technology, copyright issues are being examined under a new light and university
administrators, faculty and librarians are involved in licensing issues now more
than ever. Currently, several licenses are signed throughout institutions of
higher education. Software licenses are signed for staff, faculty, and student
use through departments of information systems or offices of technology.
University libraries are confronting substantial licensing issues, including the
temporary licensing and usage of CD-ROMs and publisher created databases, which
have recently begun to create requirements and/or definitions of authorized user
requirements. Because most licensed electronic information tools are not
purchased outright, unlike purchasing a book, libraries will need to examine the
types of control the license granter has placed on the usage of the information.
In most licenses, the tenets of the copyright law do not apply, since the user
of an electronic source has the ability to directly disseminate or download
substantial portions of the publisher's intellectual property (Bielefield and
Cheeseman, 1999). Parallel to copyright law, the primary concern of the product
creator is the long-term need for the product and/or promotion of software or
information in the marketplace. To ensure the university is in complete
compliance upon signing, the signatory officials should receive full definitions
of all terminology used in the license such as "browsing," "transmitting,"
"displaying," "resident server," "downloading," "printing," etc. Licenses can
either considerably enhance or limit resources and access to technological tools
depending on the language of the license.
LICENSES: OPPORTUNITY FOR COST CONTAINMENT AND REVENUE
Purchasing licenses for information products, rather than
purchasing software and databases outright, may be one way for a college or
university to contain costs. An institution may also need to create a user
license for its own information prior to making it available to others. With the
growth and popularity of educational technology and distance education,
intellectual property has the potential to yield great revenue in the future. A
case study of the Florida Distance Learning Network, established by the Florida
Legislature in 1995, found revenue created by distance education initiatives
were allowed to be reinvested in programs as resulting income for the
institution (Florida State Legislature, 1995). Revenue is currently seen as the
course and the curriculum, but future revenue to the university may be seen
through a variety of copyrighted or licensed materials created by the
university, such as the course syllabus, online journals, assignments, faculty
research reports, case study modules and examination courseware. The
reallocation of the revenue obtained from intellectual property create several
questions, including how the university will invest or distribute the revenue
and whether it will be funneled solely to the department of creation (AAUP,
1998). While the large majority of higher education institutions use the
Internet for disseminating information, approximately only one fourth of public
four-year colleges and, on average, one third of public and private research
universities have a policy on faculty developed intellectual property available
on the institutional website (Green, 1999). As higher education continues to use
the technology and the Internet, of great concern will be the ability to protect
individual and institutional intellectual property through licenses and the
basics of copyright law.
THE BASICS OF THE U.S. COPYRIGHT LAW
Today, the practice of
photocopy reproduction is common on campuses in the U.S. However, as shown in
case law, all types of copying do not fall under a blanket of fair use
exceptions only because they occur on a college campus. The following offers the
development of a working knowledge of the copyright law under the provisions of "fair use". This first step in learning about copyright law can be found in
Section 107 of the Copyright Act of 1976, which permits users to reproduce
copyrighted material without permission from the copyright owner as long as the
user meets each of the four factors that determine "fair use." The four factors
are a test as to what constitutes fair use reproduction and each factor is
applied to each use of a copyrighted work. These factors (or tests) include: 1)
"The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes:" On campus copying
by individuals (faculty, staff and students) is usually within the nonprofit
definitions of usage, with the exception of situations analogous to the "Basic
Books v. Kinko's Graphics Corp.," where the court found profit in connection to
the campus related copying (Crews, 1995; Wagner 1991). 2)"The nature of the
copyrighted work:" Factual works, rather than fiction, are usually favored for
the inclusion of fair use copying, since the original, legislative intent of
U.S. Copyright Law was to expand the dissemination of ideas (Hemnes, Pyle,
McTeague 1994; Wagner 1991). 3) "The amount and substantiality of the portion
copied in relation to the copyright work as a whole:" Courts have not set up
systems of page number counts or percentages of the original works that
determine substantiality. The determinate would be the amount of intellectual
content used (Hemnes, Pyle, and McTeague; 1994, Kasunic 1993; Wagner 1991). 4)
"The effect of the use upon the potential market for or value of the copyrighted
work." Market impact has been the most important element of the four factors in
determining fair use exceptions, as determined by the U.S. Supreme Court
(Kasunic, 1993). Guidance for university administrators and faculty members
evaluating copying activities is found in determining whether or not copyright
holders will suffer financial damage by the copying occurring in their
COMPLIANCE THROUGH THE CCC: A RESOURCE FOR INSTITUTIONS AND
One mechanism designed to assist with the legal compliance of
the copyright doctrine, is the Copyright Clearance Center (CCC). Congress
created the CCC to act as an important intermediary authority designed to assist
people and institutions within and beyond the elements of fair use. As members
of higher education may, at times, need to reproduce documents beyond the
exceptions of fair use, the CCC will assist in obtaining the required permission
for copying such works. This copying will also require the copying body to pay
royalties to the copyright holder, a process also managed by the CCC (Copyright
Clearance Center, 1999; Toma and Palm, 1999). Increased institutional use of the
CCC as an intermediary body may result in stronger relationships between
publishers and the higher education community as the fair use rights on campuses
will continue to be re-examined. This relationship will continue to be enhanced
because of the new copyright legislation.
THE DIGITAL MILLENNIUM COPYRIGHT ACT
The new act referred
to as the Digital Millennium Copyright Act (DMCA) was signed into law by
President Clinton on October 28, 1998. This law required the input from
copyright owners and educators specifically on changing Section 110 of the
copyright law to facilitate the use of digital technology for distance
education. This input created a report, released from the U.S. Copyright Office,
to Congress in May 1999. Of greatest interest under this act is the definition
of the on-line service provider (OSP). The university, as a provider of the
Internet and a means for copyright infringement, must take action in response to
a complaint from a copyright holder, since the university is providing the means
for infringement. The university will be required to eliminate access to the
infringing material, notify the violator posting the material and force the
violator to work with the copyright holder. Further information and
clarification is available from the American Library Association (Appendix 2).
Since the DMCA and the May report are new, administrators are cautioned to
review the language of the law. EDUCAUSE has provided the following information
for institutions to review (Lide, 1999):
"A QUICK CHECKLIST FOR CAMPUS ACTIONS"
* Ensure appropriate
campus expertise and resources to deal with copyright issues
Determine who will be the campus agent to receive notification of copyright
infringement from the Copyright Office
Develop or update campus policy and procedures on copyright
Post the campus policy online
Register the campus agent with the Copyright Office
Educate the community about the law and promote compliance
ACTION FOR THE FUTURE
Institutions must examine the
purposes for their copying. Again, fair use copying is allowed at educational
institutions for scholarly activities. However, some campuses may continue to
copy materials to use illegally in activities such as marketing, service
promotion or attracting enrollment (Burk, 1998). An analysis of the true purpose
for the copying must be mandated to ensure compliance with copyright law. With
the growth and adaptation of new technologies in the campus setting,
proliferation of electronic publishing, distance education, and access to
information online, institutions have a greater interest in clarifying their
options and abilities under the fair use doctrine (Gorman, 1998; Wolcott, 1998).
Evolving technology and intellectual property law will continue to present
challenging situations for administrators, faculty, staff and students in the
higher education community. By developing, implementing and enforcing
appropriate policies and procedures, institutions of higher education can reap
the benefits of evolving technology and as well as comply with all legal
CASE LAW AND LEGISLATION, APPENDIX ONE
American Geophysical Union v. Texaco, 60 F.3d 913 (2nd Cir. 1994).
Basic Books v. Kinko's Graphics Corp. 758 F. Supp 1522 (S.D. N.Y. 1991).
The Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat.
2860 (Oct. 28, 1998).
Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984).
INTERNET, APPENDIX TWO
American Library Association. "The Digital Millennium Copyright Act,
Highlights of New Copyright Provision Establishing Limitation of Liability for
Online Service Providers, Executive Summary".
Berkely Digital Library SunSITE. "Copyright, Intellectual Property Rights and
Licensing Issues". http://sunsite.berkeley.edu/Copyright/
EDUCAUSE. "Current Issues: The Digital Millennium Copyright Act".
Okerson, A. Association of American Universities and Association of Research
Libraries Intellectual Property Task Force. "Copyright Resources Online".
Stanford University Libraries. "Copyright and Fair Use."
American Association of University Professors. (1998). "Copyright issues in
colleges and universities". "Academe" 83 (3), 39-45. EJ 565 350.
Bielefield, A. and Cheeseman, L. (1999). "Interpreting and negotiating
licensing agreements: A Guidebook for the library, research and teaching
professions". New York: Neal-Schuman. ED 428 777.
Burk, D.L. (1998). "Ownership issues in online use of instructional
materials". "Cause/Effect" 21 (2), 19-27. EJ 572 074.
Copyright Clearing Center, Inc. (1999). "Promotion of distance education
through digital technologies. United States Copyright Office". Docket No.
98-12A, Written comments of Copyright Clearance Center, Inc. ED 428 745.
Crews, K.D. (1995). "Copyright law and information policy planning: public
rights of use in the 1990s and beyond". "Journal of Government Information" 22
(2), 87-99. EJ 499 893.
Lide, C. (1999). "What colleges and universities need to know about the
Digital Millennium Copyright Act". "Cause/Effect" 22 (1),
Gorman, R. A. (1998). "Intellectual property: the rights of faculty as
creators and users". "Academe" 84 (3), 14-18. EJ 565 345.
Green, K. C. (1999). "Campus computing 1998: the Ninth National Survey of
Desktop Computing and Information Technology in American Higher Education".
Encino, CA: Campus Computing. ED 428 645.
Florida State Legislature. (1995). "An Overview of intellectual property
issues associated with distance learning in Florida". Tallahassee, FL: author.
ED 393 444.
Hemnes, T.M.S., A.H. Pyle, and L.M. McTeague. (1994). "A Guide to copyright
issues". Washington, DC: National Association of Colleges and University
Attorneys. ED 374 762.
Kasunic, R. (1993). "Fair use and the educator's right to photocopy
copyrighted material for classroom use". "Journal of College and University Law"
19 (3), 271-93. EJ 474 595.
Toma, J.D, and R.L. Palm (1998). "The Academic administrator and the law:
What every dean and department chair needs to know". ASHE-ERIC Higher Education
Report, Vol. 26, No. 5. Washington, DC: The George Washington University,
Graduate School of Education and Human Development. ED 427 628.
U.S. Copyright Act, codified at 17 U.S.C. Section 101-1010. Wagner, E.N.
(1991). "Beware the custom-made anthology: Academic photocopying and "Basic
Books v. Kinko's Graphics". "West's Education Law Reporter" 68 (1), 1-20. EJ 431
Wolcott, L.L. (1998). "Faculty issues pertaining to institutional support and
reward practices in distance education". [Paper presented at the Annual Meeting
of the American Research Association, 1998.] ED 419 530.