TECHNOS

July 27, 2008

TECHNOS QUARTERLY Fall 1993 Vol. 2 No. 3

A Matter of Respect: Copyright Law and New Technologies

By Ivan R. Bender

New technologies such as multimedia, interactive video, and satellite transmission are exciting tools that allow students and teachers to produce their own educational materials. By borrowing text and photos from printed books, motion video from film and television, and audio from recordings, today's educators can provide custom-made classroom materials. But these capabilities raise new issues concerning copyright. What's a media specialist or teacher to do? Copyright attorney Ivan Bender explains the law and points out the necessity for respecting it in this era of technological wizardry.

Copyright—the body of federal law that protects intellectual property—is mostly misunderstood by the group of people who should have the greatest understanding and appreciation of the subject. That group is educators, from heads of colleges and universities to media specialists, librarians, and classroom instructors.

This situation is probably the principle reason why the demand for copyright workshops, articles on the subject, and copyright information services has increased over the past few years. Add another ingredient—the burgeoning of new technologies—and you have all that's necessary for a piquing of curiosity.

Let the reader beware: The issues raised in this article are only a selected few involving copyright law. Many other complicated problems of copyright are beyond the scope of what is discussed here. This article attempts to begin the process of better understanding, but the author takes no blame if it raises more questions than it answers. For in truth, there may be no clear answers for many of the questions, no matter what degree of expertise one may possess.

Rights

To begin any discussion of copyright, we must understand the rights granted under the present law to the person or entity that claims ownership in a copyright.

These rights, simply put, are as follows:

The right to make copies or authorize others to reproduce the work
The right to revise, abridge, translate, or otherwise create derivative works based upon the original
The right to distribute the work by any means, such as selling, licensing, or other methods of distribution
The right to perform the work publicly
The right to display the work publicly.

Although fairly straightforward, all of these rights can lend themselves to extensive discussion. And there are several exceptions to these sole rights that are of interest to educators. Indeed, many of the exceptions are not readily available to persons engaged in activities outside the educational community.

When the present law was debated by Congress during the 1970s and lobbied extensively by representatives of both authors and users (principally educational users), advanced technology was not much of a factor—certainly not by today's standards. Videotape was in its infancy; audiotape was just beginning to emerge as significant when the manufacturers settled upon a single standard; and computers, too, were products of an infant industry. The law became effective on January 1, 1978, and all of us who were involved in the revision process patted one another on the back and felt that, at long last, we had a law with which we could live for many years. Indeed, we thought we would have to live with it for a long while, considering that the last prior total revision of the copyright laws of the United States had been completed in 1909.

Challenges

Distance learning, interactive video, laserdisc combined with computer programming, the combination of motion video and text with statistical data, and the storing of these materials together for later use are among the new technologies that now pose challenges for us. The 1978 law may or may not address all of these challenges directly. But it is law, and it must be complied with, just as it must in the case of older technologies.

Distance learning perhaps has existed in some form or another since the development of the means of transmitting images for specialized purposes from one point to another. Today, however, the term is applied to the control by an educational institution or other entity of what is transmitted and to whom it is transmitted. What really makes it distinct from the older methods is technological advances in transmission opportunities. Many states now have divisions in their departments of education that control the transmission of classroom sessions to various points within the state. In addition, many colleges and universities have expanded and modernized their transmission capabilities in order to provide services to students off campus and at auxiliary campuses.

It does not matter, from a copyright standpoint, which distance learning technology is utilized. Rather, if material copyrighted by another party—with the exception in certain instances of nondramatic works—is used for transmission purposes, a license from the copyright holder or its agent is necessary for the transmission containing the material to be lawful. The method of transmission does, however, affect the license fee, since many factors must be taken into consideration—open versus closed circuit, satellite delivery, and size of the viewing audience, for instance.

That exception for nondramatic works is important to distance learning. If a transmission involves the performance or display of a nondramatic literary or musical work—something other than a play, opera, musical, or other work that is designed to be publicly performed—and if no reproduction is involved, the performance is lawful without a license. Such a performance would be a case in which a teacher, acting as a lecturer, reads from the work or displays it in the form of illustrations or charts on an overhead projector. To qualify for this exemption, the entity responsible for the transmission must be a nonprofit educational institution, and the transmission must be part of the regular instructional activities of the institution. Also, the transmission must be made primarily for reception in classrooms.

Fair Use

One of the most important exceptions to the right of a copyright owner is fair use. When the copyright law was enacted, groups of educators—particularly librarians, classroom teachers, and music educators—were able to agree on fair use guidelines for the photocopying of print materials and music for classroom purposes. In addition, after the law was enacted, Congress successfully convened interest groups to develop guidelines for off-air videotaping for classroom use, again under the fair-use umbrella.

One new technology in need of fair-use guidelines is multimedia, in which educators and students develop materials utilizing motion pictures in computer-based programs at schools and colleges. The user is able to view the combined product as part of an entire instructional program. This technology, especially with digital compression becoming more highly developed, puts additional pressures on the interests of copyright owners of the video material. As technology continues to improve the images that are retrieved, the need for legal access to copyrighted works will increase.

The term multimedia can mean several things, but the one element common to the concept is that it can bring together a variety of intellectual properties. For example, a program may utilize text, still pictures, sound, and video that can be called up on the computer by selecting the appropriate stored portions. The term applies not only to interactive video but also to other computer-based instructional materials.

Rather than seeking a revision in the law at this time to cover these new capabilities, one prominent educational organization, the Consortium of College and University Media Centers, is embarking upon a project to develop guidelines that would provide ground rules for access. These guidelines would further define the limits of fair use, beyond which permission from copyright owners would be required. The primary goal is to remove doubts about the legalities of the use of motion pictures or video in multimedia instructional materials, but the guidelines also will protect the interests of copyright owners.

Responsibility

In my professional life as counsel to media producers and as a representative of educational institutions, I have seen dramatic change over the years in both technology and the law. The technology has expanded from textbooks, films, and captioned filmstrips to computers, video-recorders, CD-ROM, and other sophisticated means of transmitting information.

One thing that hasn't changed is the fact that copyright is a property right, and those engaged in the business of buying and using copyrighted works must always remember that the acquisition of such works does not carry with it the right to infringe. Those who assume the mantle of administrator of educational institutions and those who assume the burden of teaching cannot abrogate their responsibility to perform those roles with a strong sense of ethics and morality. Respecting copyright is an important part of that responsibility.

Section 107 (17 U.S.C., Pub. I., No. 94553, 90 Stat. 2541) Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of Section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, 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 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.

For more information about the Consortium of College and University Media Centers, contact CCUMC Executive Office, Iowa State University, Instructional Technology Center, 1200 Communications Building, Ames, IA 50011-3243, 515-294-1811, www.ccumc.org. The Association for Information Media and Equipment may be contacted at: P.O. Box 9844, Cedar Rapids, IA 52409-9844, 319-654-0608, www.aime.org.

Illustration by Bill Dillon.

As an attorney in private practice in Chicago, Ivan R. Bender specialized in copyright law and the issues dealing with the educational and library use of video, film, and computer software. He often served as a consultant to educational institutions in their development of copyright policies. Bender represented many educational organizations and was general counsel to the Association for Information Media and Equipment.