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IP & Commercialization Faculty Guide

Distance Learning

A UK ad hoc committee looked at intellectual property issues and policy relating to distance education and other technology-based instructional materials development and implementation in 1999. The group defined distance learning as "the design and creation of instruction such that there is distance between the instructor and the student, i.e., the two active parties are not in the same room." This would include a student viewing an instructor's presentation at the library when the student and the instructor are on the same campus.

Materials used in distance learning fall under the same administrative regulations (A.R. II-1.1-3 pdf) that govern all intellectual property matters. You should disclose these materials to the Intellectual Property Committee, who will make recommendations regarding ownership interest as they do for all intellectual property.

Report of the University of Kentucky ad hoc Committee on Intellectual Property Issues with Distance Learning

Report (pdf)

University of Illinois
"Agreement between the Creator and the Academic Unit Head
(or Executive Officer for a Non-Academic Unit"

 

Copyright Basics for Web Course Developers and Distance Learning Projects

Authors and course developers are responsible for obtaining any needed copyright permissions, including for web courses and distance learning projects. This means that both you, and all others working with you, must be familiar with basic copyright laws. The University of Kentucky has prepared this overview to provide you with some reference tools.

WHAT IS COPYRIGHT?

Federal law defines copyright protection. It gives protection to the owners of original works, granting the owner the exclusive right to reproduce the work, to make derivative works, to distribute copies of the work, to perform the work, to display the work, and for sound recordings, to perform the work publicly. The federal copyright laws create both civil and criminal penalties for violations of an owner's exclusive rights.

Copyright arises automatically when a work is first fixed in a tangible medium (e.g., a book, a manuscript, sheet music, film, videotape, microfilm, electronic medium such as a computer or e-mail). Since 1978, no publication or registration or other action of the copyright office is needed to secure copyright protection, nor must the work be marked with a copyright notice. This means that copyright protection applies to materials found on the web, even if the materials have no copyright notice and are easily accessible (and copyable) by the world. Educators and students are urged to use caution in using any material downloaded from the web, and to treat web material just like conventional printed materials.

WHERE CAN I LEARN MORE ABOUT COPYRIGHT BASICS?

If you have not familiarized yourself with copyright basics, you should review one or more of the following on-line resources. Students and assistants frequently contribute substantially to projects, and you should make sure all contributors or co-authors are familiar with these basics.

As a general rule, unless your use falls within one of the few exceptions specified in the copyright laws, using the material without permission infringes the rights of the owner.

WHAT IS THE FAIR USE EXCEPTION?

Several sections of the copyright laws may allow some use of another's work without the owner's permission. The section of particular importance to authors, web course developers and most other distance learning developers is the fair use exception contained in section 107 of the Copyright Act. It provides for limited uses of small amounts of another's work for purposes of teaching, research and scholarship. It provides few black and white rules, but instead directs you to consider four factors:

  • The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; AND
  • The effect of the use upon the potential market for or value of copyrighted work.

Many instructors are of the erroneous opinion that if a use is for an educational purpose, then they are freely permitted to use the material. While an educational use weighs toward a fair use finding, it is only one of the four factors, and in each instance all four factors must be considered. If the use is for a commercial purpose, such as licensing a distance learning project to a distributor, this would weigh very heavily against a finding of fair use.

WHAT ARE THE FAIR USE GUIDELINES?

To help with the uncertainties associated with fair use, some guidelines have been developed and agreed to by a wide variety of interested parties for areas such as classroom handouts and music usage. These guidelines are not law, and do not typically reflect the maximum use allowed by law, but merely reflect an agreed "safe harbor." In recent years, a Conference on Fair Use (CONFU) was conducted to attempt to develop similar guidelines applicable to distance learning and multi-media projects. While the multimedia guidelines were completed and approved, there was no consensus on distance learning, and the draft guidelines were not approved. However, a review of both sets of these guidelines may give guidance on the relatively small and limited duration of a use that has been agreed to constitute a fair use.

As an example of the limited nature and duration of use authorized in the classroom guidelines, if your intended use is for two semesters or if you intend to use two chapters of a five-chapter book, you may not presume fair use and advance permission should probably be obtained.

HOW CAN I GET PERMISSION TO USE COPYRIGHT MATERIALS?

If you have determined that you should obtain the copyright holder's permission to use the work, you should obtain a written permission and file it carefully. While there is no required form, you will want to clearly describe what work you will use, how it will be used, and for how long it will be used. Typically, you prepare a letter describing the request, and include a space where the copyright owner can sign the letter and fax it back to you indicating that permission is granted for this use. If you have an e-mail address, permission via e-mail is acceptable. If the work will only be used in a password protected project, include this fact in your request, since copyright holders are more apt to grant permission to limited educational uses than unrestricted web uses. Request permission as soon as possible, as some owners will not respond, and it is easier to modify or substitute material at the beginning of a project.

The copyright holder (or someone working on its behalf, such as the Copyright Clearance Center) is the only entity that can grant permission to use the work. Generally, copyright is held either by an individual, or for a work performed in the course and scope of employment, by the employer. However, as a condition to publication, many publishing houses (books, some journals, etc) require an absolute assignment of all copyright interests. Thus, the publisher is the owner and you need permission from the publisher.

The Copyright Clearance Center
http://www.copyright.com

HOW CAN I PROTECT MY OWN WORK?

To be sure that others recognize the proprietary nature of your work, the University of Kentucky recommends that you mark your materials: "Copyright 20XX University of Kentucky" followed by other identifiers such as unit, division or other appropriate information. Because of the ease with which users can copy web materials, consider repeating the copyright notice in a number of locations.

WHERE CAN I FIND MORE INFORMATION?

Contact:
Katherine Adams, Office of Legal Counsel
301 Main Building
University of Kentucky
Lexington, KY 40506-0032
859/257-2936
Fax: 859/323-1062
kadams@uky.edu