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At Wharton Executive Education we use technology to deliver up-to-the-minute information to students on campus and on line. As part of my job as systems coordinator, I set up electronic course material reserves for The Wharton School, University of Pennsylvania's well-known and highly respected executive programs. Most of the programs are campus-based over a few days or a few weeks, but some are distance-education courses that can last several weeks. I also secure permission to store materials and allow access through a secure Web site for the students. However, because we use technology in innovative ways, we sometimes cannot deliver the latest information as quickly as we would like.

The distance-education courses are offered through Wharton Direct. Typically 50 to 100 students take a course at a time. Online courses use streaming video for live and interactive Web casts and chat rooms. Online features allow students and teaching assistants to exchange questions and answers individually (in real time), and allow professors to take and answer questions in a group session. The Wharton Direct Web site functions as a classroom, library, professor's office, and study hall. It allows working adults to enhance their business education without coming to the campus for a week or more.

Professors use the same material for distance education as they do for our traditional courses. A professor may find an article in a financial journal while riding home on the train and want to share it with a finance class the next day. In a traditional face-to-face course, the professor simply makes copies to hand out in class. Under certain circumstances, college and university professors copy and distribute works without permission from copyright owners if the four factors set forth in section 107 of the Copyright Law apply. Because the law is somewhat vague, institutions like ours encourage professors to follow standard guidelines that have been around almost two decades. A reference guide published by the American Library Association and the National Education Association recommends following guidelines suggested by the ALA's 1982 Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use. This guide explains that the "Model Policy" was developed because university professors were not represented in the negotiations for the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals as printed in the Report of the House Committee on the Judiciary (HR 94-1476). The agreement was made among publishers, authors, and librarian organizations. It says:

  • Don't distribute the same copied work every semester without permission.
  • Make only enough copies for each student registered in the class.
  • Be sure a copyright citation appears on the first page of the copied work.
  • Do not charge students for the copied work, although they may be charged for the cost of making the copy.

If the professor is teaching a distance learning course, she or he cannot hand the article out to students in several different U.S. cities, and under current law it is not clear that it can be transmitted electronically without the express permission of the copyright owner. Is it a "fair use" to scan and post the print version on the course Web site? Not all publishers agree that would be a fair use, so the distance-education students often lose out.

The problem is going to spread. According to "Distance Education at Postsecondary Education Institutions: 1997-98," [1] the percentage of the higher-education institutions that offer distance education using Internet-based technology increased from "22 percent of institutions in 1995 to 60 percent of institutions in 1997-98." More than half of the institutions surveyed will develop or continue to increase their use of technology to deliver course content via the Internet within three years.

That Was Then, This Is Now

When all published information was in bound books and periodicals, professors followed fair-use guidelines when spontaneously sharing new material with students. Internet technologies and the changes they have made in education are not recognized in the fair-use guidelines that are suggested in the Copyright Law itself nor in guidelines developed since fair use was developed, but there may be hope. Bills introduced in the U.S. Senate (S 1146, The Digital Copyright Clarification and Technology Act) and the U.S. House of Representatives (H.R. 3048, The Digital Era Copyright Enhancement Act) seek to extend the fair use of copyrighted material to distance education. They would expand fair-use to encompass digital transmission for the purpose of teaching and research.

Both bills state explicitly that their purpose is to "[expand] the fair use of a copyrighted work to include uses by analog or digital transmission in connection with teaching, research, and other specified activities . . . [Revise] certain limitations on exclusive rights to provide that . . . performances, displays, or distributions of copyrighted works by or in the course of analog or digital transmissions in connection with certain distance education activities; and copying works in digital format if such copying is incidental to the operation of a device in the course of the otherwise lawful use of a work, and does not conflict with the normal exploitation of the work, and does not unreasonably prejudice the authors interests” are not infringements.

The House bill additionally "provides that when a work is distributed to the public subject to non-negotiable license terms, such terms shall not be enforceable under the common law or statutes of any State to the extent that they . . . abrogate or restrict specified limitations on exclusive rights."

"When in doubt, ask permission — even for print publications"

What would this mean for distance education? The same fair-use privileges professors enjoy under the current Copyright Law may apply to digitized material online, on the Internet, and over the World Wide Web. Just because use of the personal computer may create more copies than there are students (the Model Policy recommends avoiding this in print), copyright holders may not use this to claim copyright infringement has taken place. Also, copyright owners could not use non-negotiable license terms to limit fair-use privileges. That is, a copyright owner could not through the license limit what would be fair use if the material were in print on paper. The finance article the professor read on the train could be scanned and posted for the virtual finance class to read when the students log in after work or after the children are in bed.

What Is Fair Use?

Section 107 of the U.S. Copyright Law states that

[T]he fair use of a copyrighted work, . . . by reproduction in copies or phonorecords or by any other means specified by that section [106, exclusive rights of copyright owners], for purposes such as teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include —

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

The University of Maryland's copyright and fair use guidelines are typical in their use of the word "permissible" in setting out policies to avoid copyright violations. If the professor in my example were to adopt the University of Maryland's online copyright guidelines, he or she would know that copying that one article from the finance journal the next day would be in compliance. The Maryland guidelines also state that copying a book chapter is permissible.

John B. McHugh, a copyright consultant, writes that "fair use generally suggests those circumstances in which it is permissible to use portions of another's copyrighted works . . ..The judgement as to whether or not the use of a copyrighted work is within fair use doctrine is both subjective and predictive."[2] However, McHugh and others point out that fair use does not preclude rights holders from initiating litigation. In a court case, the four factors would be weighed to determine whether the use is fair. When in doubt, ask permission — even for print publications.

In the Interim

The House and Senate bills that would provide relief for distance-education courses are in committee at this writing. The next step should be to set a date for public hearings. That will happen only if the bills are considered important enough. Until then, seeking permission every time copies are made for distance-education classes is the most advisable action. When seeking permission or negotiating a license agreement, these are the limitations I propose to copyright holders:

  1. Licensee agrees to limit access to Web-based document to students enrolled in Licensee's then-current programs.
  2. Licensee shall ensure that the students are assigned a unique user name and password as authorized users.
  3. Licensee shall ensure one-time access and any subsequent attempt to access the document will be blocked. (In negotiations, I do not offer this at the outset. Students often have to return to a document because they lose the hard copy or do not download the material successfully at the first login.)
  4. Licensee shall ensure that the copyright notice shall be cited according to the rightsholders specifications. (Most of the time, the original copyright notice is sufficient. But some copyright holders prefer that a separate page be inserted into the digitized document to make the notice more prominent.)
  5. Licensee shall employ other technology reasonably necessary to protect the rights of the rightsholder. (This may require us to disallowing printing. I try to avoid offering this, too. There is not much we can do once material goes beyond the campus firewall.)
  6. Licensee shall compensate rightsholder for each document on a per user basis and in accord with rightsholder's fee schedule. (Some copyright owners are happy to grant permission to non-profit educational institutions without a fee.)

I usually find that copyright owners are happy with just the first two provisions. The other provisions were developed when a copyright owner was uncomfortable with the idea of digital use of their materials. Negotiations involved the chairperson of Wharton's Legal Studies Department and the owner's counsel, and together we developed the additional provisions. Since then, I have mixed and matched these suggested guidelines to fit the situation.

To balance the rights of copyright owners, educators, students, and others, we can't expect to freely distribute multi-copies of copyrighted works over and over again. Fair use guidelines are a privilege given the general public so that newly found information can be shared quickly without first going to the copyright holder to ask for permission. With new technologies, knowledge can be shared much more quickly than at the time the Copyright Law was enacted. Without the new legislation, however, distance learners will continue to be restricted from taking full advantage of these technologies. Often relevant material has to be eliminated from a distance-education course because we have to wait for the copyright owners permission. By the next time the course is offered, the article may be old news. The student whose lifestyle does not allow an on-campus experience has lost out.

A Call to Action

There has been little activity on S 1146 and HR 3048 since 1998. As mentioned, distance education is a growing phenomenon. We must keep this issue in the forefront. Please contact your congressional representative at http://www.house.gov:80/Welcome.html and urge consideration of the two bills. All distance learners will benefit from the passage of these bills.



Millison Smith is an Office Systems Coordinator at Wharton Executive Education. She is trained in Document Imaging Architecture. Millison gained experience as a permissions coordinator while at Temple University Press, Philadelphia, PA. She may be reached at smithm@wharton.upenn.edu.


Notes

1. "Executive Summary," Distance Education at Postsecondary Education Institutions: 1997-98, p.vi, NCES 2000-013, National Center for Education Statistics, U.S. Department of Education, Office of Educational Research and Improvement. December 1999.return to text

2. John B. McHugh, Permissions Management for Requesters and Granters: Dealing With Copyright and Fair Use. Copyright 1996 by John B. McHugh, pp. 22 24.return to text


Links from this article:

University of Maryland's Copyright and Fair Use Guidelines http://www.umuc.edu/library/copy.html

Wharton Direct http://direct.wharton.upenn.edu

Wharton Executive Education http://www.wharton.upenn.edu/execed/


For further information

http://www.arl.org (Association of Research Libraries, includes listserv for electronic reservists)

http://www.copyright.com (Copyright Clearance Center)

http://www.utsystem.edu/OGC/intellectualproperty/ (University of Texas System)

http://www.lcweb.loc.gov/copyright/ (includes full text of Title 17)

http://www.diglib.org/ (Digital Library Federation)


Any part of this work may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means for non-commercial use only. For-profit, commercial businesses may contact Millison A. Smith, smithm@wharton.upenn.edu or millison_s@yahoo.com for permission.