Copyright in Distance Education

Copyright is a legal concept that gives the creator of original works exclusive rights to the work.  This is mostly for a limited time.  Copyright in the United States lasts for seventy years after the creator’s death for works that have been published starting in 1978.  In the United States, we have a doctrine that promotes the idea of fair use.  This permits some copying and distributions without permission from the original creator.  Intellectual property is defined by a set of exclusive rights but mostly over artistic and commercial creations of the mind.  The creator holds these rights so that they may be able to control any reproductions and adaptations of their work.

Lawrence Lessig refers to copyright as “Creativity and innovation always builds on the past.  The past always tries to control the creativity that builds on it.  Free societies enable the future by limiting the past.  Ours is less and less a free society.”  He means that we, as society, build on the past, while the past always tries to stop us, freedom means stopping the past, but we have lost that ideal.  We continue to allow lawyers to regulate a creators’ works that have built upon others works.  They are not allowed to take an idea from someone else unless they give that creator permission.  We have to learn from the past before we are able to create new ideas for future concepts and concerns.  A teacher is always studying the past to be able to make sense of the present.  Is it true for teachers at a university that they cannot share their knowledge?

A teacher in a classroom will require certain books to be obtained by the students.  This is not copying or reproducing any works by the author, this is just one way that the teachers are sharing their information of a subject.  Some teachers hand out excerpts from books for a class to take part in a discussion.  This brings copyrights laws into play.  Are the teachers allowed to continually make copies for their classrooms?  There is a specific number of pages a teacher is allowed to copy for students.  It is limited by the specific source of copying and by a specific author.  So the page amounts vary.  How does this differ from handing out a copy online?

“Title 17 Section 102(a) of the United States Code states that any original work in some tangible form that can be perceived, and/or reproduced may be copyrighted” (Brooks-Young, 140).  Downloading, replicating, and distributing all sorts of copyrights material is easy within today’s standards of technology.  When a student’s work is posted in an online classroom is of concern because the students don’t necessarily give permission for their own works to be reproduced in any way.  These uses are educational uses in which they are termed “fair use.”  As long as teachers are following the fair use act and they are not distributing the material for profit, they have rights for this material.   When teachers have to manage online education distance courses how are they able to share all these copies of other’s works and not be in violation of these copyright laws?

Four factors are to be taken into consideration when determining a work to be used: “the purpose and character use, the nature of the copyrights 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 the copyrighted works” (US Copyright Office).  These are the general guidelines that each situation should be assessed at.  Teachers can make educated decisions based on these policies about their own use of copyrighted materials.  These materials may include, but are not limited to, photocopying, music, multimedia, software, taping of television shows, and the libraries role in duplicating materials and electronic subscriptions.  When teachers provide copies of copyrighted works for their students that do not fall under the four factors of fair use, then they are committing copyright infringement.

“The Technology, Educations, and Copyright Harmonization Act of 2002 (the “TEACH Act”)…amended the Copyright Act to allow certain public performances and displays of works in the course of providing distance education” (McCord Hoffman, 150).  The Copyright Act had allowed usage of such works within the face-to-face classrooms, but distance education was extremely limited for use of the performances.  The TEACH Act replaced that limited section of the Copyright Act so the teachers are able to share just as much information online as they would be able to within their face-to-face classrooms.  Although proper academic documentation of sources should be modeled and taught, it doesn’t necessarily mean that they are considered as a factor in a legal finding of fair use.  This law does not refer to any activities that a student would use or create within a program that has to be purchased on their own.  It does, however, cover the material that a teacher would introduce into a live lecture that doesn’t cover materials covered by the class’ assigned texts.

The TEACH Act doesn’t include situations with electronic reserves used in some distance education courses.  Most Conference on Fair Use (CONFU) participants couldn’t agree on the scope of fair use for electronic reserves.  Most universities allow the materials owned on campus to be shared electronically, but most likely are password protected.  Just like our library’s website when accessing the e-reserves from off campus requires our username and password to verify that we are students at UWM.  Since the growth of distance education programs, some universities have seized of the courses, mass-produced them, and sold the rights to other institutions.  “Regardless of whether their work is classified as an invention or literature, academics throughout history have shared their work freely as a part of their responsibility to share knowledge” (Bobbitt, 67).  Universities should be sharing this knowledge with other universities to create a united teaching front, even though this kind of intellectual property falls within the area of patents and copyrights.  Universities seem to push the limits of infringement because distance learning courses don’t fit into the existing institutional policies for intellectual property.  The universities only seem concerned with the fate of the courses when the creator moves to another institution because they might take the course materials and outline with them.  There is minimal conflict when an institution and creator determine ownership issues before the distance learning class is created.

Some universities claim that “their interest in the copyrights of faculty-produced instructional materials is not as much because of the financial rewards, but to maintain control over the external distribution of the materials in order to protect the university’s image” (Bobbitt, 51).  This would mean that if they discovered something important that would indeed become a part of history and can advance the United States in any field of study, the university would want to be able to retain the gratification that the university itself is where it was discovered or created.  They want to have the prestige that the product was a university-based research finding.  Teachers will have to abide by university policies when setting up their distance learning courses; most of which will include that the university has partial or full rights to the course materials.  This interest from the universities seems to remove the responsibility of teachers having to share their knowledge.  Does this mean that students will be learning less?

Students that come to school to get a degree probably wouldn’t think so.  They come to class to get a good grade and they follow the ALA format on their papers that they have to write so they are not plagiarizing.  Students do all of this for about eight semesters to obtain their goal of a bachelors degree.  They miss the point that some teachers are silenced for sharing information because teachers can be charged with infringement.  Teachers cannot make handouts every class because the amount they are allowed to photocopy per book is limited.  Teacher’s choices or views in the way their class ought to be taught are limited because of copyright.  Their own intellectual property in the creation of their online classes is governed by the university.  They don’t even own the right to take their classes if they move to another university or college.  Copyright is limiting our teachers and our own expression of sharing knowledge.



Bobbitt, R.  (2006).  Universities, Faculty, and the Battle Over Intellectual Property:  who owns what’s inside the professor’s head. Lewiston, New York.  Edwin Mellen Press.

Brooks-Young, S. (2006). Critical technology issues for school leaders. Thousand Oaks, California: Corwin Press.

Crews, K. D. (2000). Copyright essentials for librarians and educators. Chicago, IL: American Library Association.

Huddleston, M. B. (2006). Case study copyright issues in distance education. College Station, Tex: Texas A&M University.

Hoffmann, G. M. (2005). Copyright in cyberspace 2: questions and answers for librarians. New York: Neal-Schuman.

Lessig, L. (2004). Free culture: how big media uses technology and the law to lock down culture and control creativity. New York: Penguin Press.

Nemire, Ruth E.  Intellectual Property Development and Use for Distance Education Courses:  A Review of Law, Organizations, and Resources for Faculty.  2007.

Spalter, Anne Morgan.  International Conference on Computer Graphics and interactive Techniques.  New York; ACM, 2002.

Talab, Rosemary. “Faculty Distance Courseware Ownership and the “Wal-Mart” Approach to Higher Education.” TechTrends: Linking Research and Practice to Improve Learning 51.4 (01 July 2007). <;.

Whitson, George.  Consortium for Computing Sciences in Colleges.  Missouri:  Consortium for Computing sciences in Colleges, 2001.

Vaidhyanathan, S. (2001). Copyrights and Copywrongs: the rise of intellectual property and how it threatens creativity. New York: New York University Press.

“Copyright Law Chapter 1.” US Copyright Office. <;

University of Wisconsin System.  Copyrightable Instructions Materials Ownership, Use and Control.  2007.  <;


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