2. VOLUME 2 NO. 4 (2012) Journal of APPLIED LEARNING TECHNOLOGY 17
ter for the government to handle copyright rules
and regulations versus allowing private parties to
handle the details. Subsequently, the U.S. Con-
gress enacted the fair use clause to become law,
which became popularly know as “’common law’”
to cover fair use of copyrighted works for criticism,
commentary, news reporting, teaching, scholar-
ship, and research (Baughman, 2012, p. 1). On
first inspection, it appears that teachers should
be completely absolved from copyright violations
under the fair use provision, but further investi-
gations have revealed the contrary.
Copyright Controversy in Online
Learning
Despite the changes the government has made
with the copyright laws over the years, no one clear-
ly has defined who owns the intellectual property
a teacher creates, whether or not it is the teach-
er’s property or the institution in which the teach-
er is employed. This dilemma is often magnified
for distance education faculty. From the legal per-
spective, Loggie et al. (as cited in De Gagne &
McGill, 2010) describe intellectual property as any
invention, creative work, or discovery from a per-
son that contains value; in education, the intel-
lectual property can be course syllabi, books,
scholarly publications, lecture notes, or presen-
tation files. Petersen (as cited in De Gagne &
McGill, 2000) extends the definition to include
course reading materials, assignments, discus-
sions, and even examinations. The problem of
ownership of the intellectual property appears to
be based primarily on perspective. Although some
instructors may invest a great deal of time and
effort in creating the property, if they used their
employer’s resources in creating the materials, one
could say that the school is entitled to take own-
ership of the property. Many institution adminis-
trators attempt to justify their claim to the prop-
erty by creating work-for-hire agreements; facul-
ty, upon hiring, would sign and consent to relin-
quishing rights to anything created during employ-
ment.
Exactly who should declare ownership of the
intellectual property becomes an even greater is-
sue when distance learning is the method of les-
son delivery. Fineberg (2009) makes an interest-
ing point that until around the beginning of the
millennium, Congress made no updates to the
copyright laws since 1995, the time when the In-
ternet began to grow in popularity. The author
also informs that the clause stating no reproduc-
tion of copyrighted materials by educators or li-
brarians only covered physical photocopying, mi-
croform reproductions, videotaping, or “any other
method of duplicating visually-perceptible mate-
rial” (Fineberg, 2009, p. 239). Because of the ob-
viously vague interpretation of visually percepti-
ble materials, and the growing threat of Internet
piracy, congressional members created an adden-
dum in 1998 known as the Digital Millennium
Copyright Act, or DMCA. Concrete guidelines to
cover electronic use of copyrighted materials as
required in online or distance education were still
not addressed until 2002, when the government
passed the Technology, Education, and Copyright
Harmonization Act, or TEACH Act (Fineberg,
2009). The TEACH Act was aimed at decreasing
confusion online learning institutional officers of-
ten experience by outlining exactly what is con-
sidered to be fair use of digitized materials.
Even though early copyright laws contained a
great deal of uncertainty and ambiguity, DeVary
(2008) notes that before the government made its
first revisions in 1976, only two separate copy-
right infringement cases against teachers appeared
in the courts with rulings against them. The ex-
ceptions granted to distance education faculty
members with the TEACH Act neither completely
exempts nor exonerates them from copyright in-
fringement. As Ncube (2011) advises, organizers
of distance education must always plan to ask
the originator’s permission before reproducing and
distributing copyrighted materials to the learners.
Otherwise, the unfortunate outcome to sidestep-
ping this important task of requesting permission
in advance inevitably could lead to litigation. For
example, in 2010 an outside organization that
protects educational film and video producers
challenged the University of California-Los Ange-
les (UCLA). The Association for Information and
Media Equipment, or AIME members cited that
UCLA was in violation of using its members’ video
footage, of which PBS (Public Broadcast System)
is a major part, and illegally posting the videos in
the school’s online courseware system without
advanced approval (Dames, 2010). Soon after-
wards, AIME contested Cornell University repre-
sentatives on the same grounds as UCLA.
In another legal battle that started in April 2008,
three scholarly publishers, Cambridge University
Press, Oxford University Press, and Sage Publica-
tions sued Georgia State University (GSU) officials
with charges of 99 counts of copyright infringe-
ment (Baughman, 2012). The publishers stated
that the officials clearly violated copyright laws with
“’systematic, widespread and unauthorized copy-
ing and distribution of vast amounts of copyright-
ed works’” via the school’s website (Baughman,
2012, p. 2). The precipitating factor in this law-
suit was the method of distribution of student
course materials. Many school officials have been
3. VOLUME 2 NO. 4 (2012) Journal of APPLIED LEARNING TECHNOLOGY 18
using what some educators refer to as Course
Packs that oftentimes contain reading compila-
tions for a particular course. Instructors distrib-
ute the packs electronically, and the school as-
sesses the students a fee; this service has in-
creased almost exponentially in cost because of
the associated licensing fees. To offset costs in
what they believed were still fair use, GSU offi-
cials opted to rely on using a combination of their
library’s e-reserves or electronic reserves and post-
ing the reading materials directly onto the instruc-
tors’ websites (Baughman, 2012). Consequently,
the three publishers filed a formal complaint in
the Atlanta District Court. After four years of ar-
bitration, on May 11, 2012, the judge ruled that
GSU officials only violated five of the 99 alleged
copyright infringements.
Strategies for Avoiding Copyright
Infringement
Most educators would probably agree that mis-
informed decisions could often lead to catastro-
phe. Problems become exacerbated only when no
one sets a clear delineation between what is con-
sidered fair use with copyrighted materials and
what is not, and thus distance education admin-
istrators sometimes find themselves in litigation.
Some experts believe that safeguards exist for
helping to prevent infringement. These experts
also observe that although more research is need-
ed in this legal area, there are still suggestions for
improvement, especially when dictating thresholds
for permissible copying (Fineberg, 2009). One of
the safest approaches a university leader can take
is to become linked with the open access commu-
nity for accessing online scholarly works. In this
community, no user fees exist and no prior per-
mission requests are necessary—the users are,
however expected to give the authors control over
the integrity of their work and to give proper cita-
tions when using the authors’ materials (Lyons,
2010; Nelson, 2009). Many technologies already
exist in an open access type of platform, so there-
fore it should only be a matter of time before con-
tributors add more materials to the open access
community.
Unquestionably, copyright is a big business that
continues to expand, and many university lead-
ers may not be equipped to manage copyrighting,
much less provide satisfactory resolutions to prob-
lems that develop. Ryan (2011) acknowledges the
importance of strategic roles within the universi-
ties, such as directors of copyright offices and de-
scribes how, at the time in 2000, the newly ap-
pointed director for this position at Purdue Uni-
versity acquired a “blank canvas” to transform into
a working model (p. 111). For any new adminis-
trator in this type of position, success is first re-
lated to addressing necessary questions, such as
how has the school been handling copyright is-
sues, does a plan or contingency plan exist for
dealing with the issues, and has a manual of pol-
icies and procedures been formally drafted? The
administrator, according to Ryan (2011) should
still probe further, especially if someone else has
already written a policy. Essentially, the official
would need to survey the policy’s coverage and
limitations in sufficient detail to ensure that it is
expansive enough to handle all types of potential
copyright problems the school could encounter.
The administrator would, among all the other de-
tails, need to designate the proper official within
the organization who will handle any copyright
questions that arise. This copyright office direc-
tor should also decide the scope of jurisdiction:
Will the office only handle problems within the
university or will it also reach out to respond to
questions within the surrounding community?
To help ensure protection of original works,
Gales (as cited in Nelson, 2009) strongly urges
educators to register their revenue-generating
materials as soon as possible. This strategy holds
for both physical media as well as digital, Web-
based items such as online courses. The regis-
tration process is not tedious and a teacher can
conveniently complete it online. The major bene-
fit of registration is that it provides the instructor
with a better legal position in the unfortunate event
of a lawsuit. In addition to registration, as previ-
ously stated, many distance education instruc-
tors can help to avoid problems altogether by prop-
erly following through with requesting permission
to use a protected work. Nelson (2009) states that
oftentimes, authors will not expect to be paid roy-
alties if the instructors plan to use the works strict-
ly for educational purposes; the authors may sim-
ply request recognition. In 2006, the government
could hold copyright violators accountable for
$750 to $150,000 per infraction (Foster as cited
in Nelson, 2009); one can only imagine how much
this penalty has increased over the years.
A final possible plan for distance education pro-
fessionals could involve creating explicit guide-
lines for media use, similar to Table 1. Because a
great deal of misinterpretation can easily create
problems, if a distance learning officer makes an
effort to create a simple chart outlining the thresh-
olds, little room for error should exist.
4. VOLUME 2 NO. 4 (2012) Journal of APPLIED LEARNING TECHNOLOGY 19
Table 1. Fair Use Guidelines for Media Use
Conclusion
Teaching professionals have witnessed many
new shifts and trends develop in education over
the past years. Given the nature of technology,
these professionals undoubtedly will encounter
many additional changes. Because distance
learning tends to be a more convenient alterna-
tive to learning versus the traditional classroom
models, more instructors have to acclimate quickly
to this higher paced, and sometimes greater de-
manding method of lesson delivery. Without a
clear understanding of copyright laws as they ap-
ply to technology, a distance education instructor
could easily become an offender of copyright law
and elicit legal action for him- or herself or even
his or her employer. The legal system is not per-
fect, and many laws may be plagued with ambiv-
alence, but school faculty members will still need
to become as familiar as possible with what is con-
sidered fair use in regard to using others’ copy-
righted materials.
References
Baughman, S. (2012). The Georgia State Univer-
sity copyright case/ : Implications and incen-
tive in higher education and publishing. Access
to Knowledge, 4(1), 1–7.
Dames, M. K. (2010). Educational use in the digi-
tal age. Information Today, 27(4), 18-19.
De Gagne, J., & McGill, B. (2010). Ethical and
legal issues in online education. Journal of
eLearning and Online Teaching, 1(7), 2–13 .
DeVary, S. (2008). National distance education and
trends. Distance Learning, 5(1), 55-60.
Fineberg, T. (2009). Copyright and management
system. Libri International Journal of Libraries
& Information Services, 59(4), 23 8-247.
Kranch, D. A. (2009). Who owns online course in-
tellectual property? Quarterly Review of Dis-
tance Education, 9(4), 3 49-3 56.
Type of Media Suggested Acceptable Use
1. Motion Media 10 percent or 3 minutes, whichever is less.
2. Music 10 percent, but no more than 30 seconds.
3. Text 10 percent or 1,000 words, whichever is less.
4. Illustrations/Photographs Entire illustration/photograph, no more than
5 images by one artist. Collective work,
10 percent or 15 images.
5. Numeric Data Sets 10 percent or 2,500 fields or cell entries,
whichever is less.
Note. From “Copyright and Distance Education: The Impact of the Technology, Education, and
Copyright Harmonization Act,” by E. Nelson, 2009, Association for the Advancement of Computing in
Education, 17(2), p. 96. Copyright 2009 by Eric Nelson. Reprinted with permission.
As an example, if a music instructor’s director
delegated the task of creating a new online course,
the instructor could easily refer to this type of ta-
ble to begin designing. If the instructor planned
to upload music clips from Beethoven Sympho-
nies 7, 8, and 9, and the clips were approximately
eight minutes in duration, the educator could
quickly determine that each clip should be trun-
cated to less than 3 0 seconds each to maintain
copyright compliance. Uploaded video content,
the instructor would find, cannot exceed three
minutes.
University Roles and Policies for
Copyright
It is clear that policies and procedures are an
important, vital part of an educational institution’s
daily operations. Leadership within a school sys-
tem could greatly suffer if departmental directors
and managers do not create concrete policies and
guidelines for routine departmental functions and
procedures; strategies for mitigating legal prob-
lems are also essential. In regard to copyright law,
some schools designate an outside legal organi-
zation to handle any problems a teacher may ex-
perience. For example, the University of Wiscon-
sin’s Board of Regents relies on a copyright attor-
ney who is a part of the Office of General Counsel
(University of Wisconsin, 2010). Additionally, as
a model for other schools to follow, the University
of Wisconsin also provides an FAQ, or frequently
asked question Web page for the staff to consult
in the event of a problem. Other schools may ex-
ercise the option to hire an attorney to serve as an
employee of the institution, possibly at the level of
director of legal affairs or chief legal officer (Uni-
versity of Maryland, 2012). Faculty members
should benefit more when the legal advisor has
an office on-site because of the increased acces-
sibility.
5. VOLUME 2 NO. 4 (2012) Journal of APPLIED LEARNING TECHNOLOGY 20
Lyons, M. G. (2010). Open access is almost here:
Navigating through copyright, fair use, and the
TEACH act. Journal of Continuing Education
in Nursing, 41(2), 57-64.
Ncube, C. (2011). Key copyright issues in African
distance education: A South African case study.
Distance Education, 32(2), 269-275.
Nelson, E. (2009). Copyright and distance educa-
tion: The impact of the Technology, Education,
and Copyright Harmonization Act. AACE Jour-
nal, 17(2), 83 -101.
Ryan, M., & Ferullo, D. (2011). Managing copy-
right services at a university. Reference & User
Services Quarterly, 51(2), 111-114.
University of Maryland. (2012). Office of legal
affairs. Retrieved from http://
www.president.umd.edu/legal
University of Wisconsin. (2010). General counsel.
Retrieved from http://www.uwsa.edu/gc-off
About the Author
Jerry Roper is a doctoral student in the
Computing Technology in Education program
of the Graduate School of Computer and In-
formation Sciences at Nova Southeastern Uni-
versity in Fort Lauderdale, Florida. From an
early age, he was always very engaged in sci-
ence and technology. Throughout grade school
as well as high school he was self-taught in
various computer-programming languages. He
earned three undergraduate degrees in biolo-
gy, respiratory therapy, and computer science;
and one graduate degree in education. He
spent 12 years working in health care, and a
total of approximately five years in IT. As soon
as his interests shifted to education, he knew
he could better serve his community by blend-
ing as much of the skills he has acquired in
the workplace to help adult learners become
successful and productive in this constantly
evolving, technologically driven environment.
He currently resides in Los Angeles, California
and works full time as an Advanced Respira-
tory Therapy Instructor at Concorde Career
Colleges, Inc.
jroper@concorde.edu
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