As we move into diversifying modalities of instruction from purely face-to-face meetings with students to hybrid variations and fully online courses, we must begin to address the issues governing electronic use of copyrighted materials in electronic formats for teaching and learning. The information contained here seeks to inform faculty so that they can better make choices regarding legal use of digital materials for instruction. The copyright law (Title 17, United States Code) sets strict limits on making copies of copyrighted works. Fortunately, these limitations on use are softened somewhat by the "Fair Use" provisions under section 107 of the Copyright Act of 1976 and the Technology Education and Copyright Harmonization Act (TEACH) passed by Congress in 2002. Although use of copyrighted content by educators has greater flexibility under these provisions, willful infringement may subject the copier to damages up to $100,000 per work. Please contact Academic Computing, if in doubt about any aspect of these rules.

The fair use provisions and the TEACH Act broaden the rights of educators to perform and display works and to make digital copies of integral parts of the works for instructional purposes in a distance learning setting. Where there are limitations under the TEACH Act educators still have recourse to Fair Use to make copies, create derivative works, display and perform works publicly and distribute them to students where restrictions apply. For more information regarding the restrictions governing Fair Use refer to http://www.utsystem.edu/OGC/IntellectualProperty/faculty.htm#fu. Of particular interest when reading about Fair Use at the site above is the information that constitutes the "Four Factor Fair Use Test". The test serves as a valuable guide when evaluating the legality of your use of copyright materials where the TEACH Act does not apply.

Here are some suggestions to follow when preparing materials for asynchronous presentation over the web that do meet the "Fair Use Test" and TEACH Act provisions.

• Copyrighted material in any format is allowed as a regular part of systematic instructional activities.
• Password protection should always be used to restrict access to those enrolled in the course.
• Displayed works should be legitimate copies, not illegally acquired or recorded off-air, and include a copyright notice.
• Link to content found on the web whenever possible to avoid ownership disputes.
• Display or stream only "reasonable and limited" portions of Central Washington University owned copies of video tape and DVD media.

Georgia Harper, manager of the Intellectual Property Section of the Office of General Counsel for the University of Texas System and a specialist in copyright law summarizes the features of the TEACH Act in her article, "The Teach Act Finally Becomes Law". The article in its entirety can be found online at: http://www.utsystem.edu/ogc/IntellectualProperty/teachact.htm. In the article Harper devised the following checklist to determine whether your use falls under the guidelines set forth under the TEACH Act. Please use this checklist when considering the digitization of copyrighted content for use in instruction.

• My institution is a nonprofit accredited educational institution or a governmental agency
• It has a policy on use of copyrighted materials. Download CWU Policy
• It provides accurate information to faculty, students and staff about copyright
• Its systems will not interfere with technological controls within the materials I want to use
• The materials I want to use are specifically for students in my class
• Only those students will have access to the materials
• The materials will be provided at my direction during the relevant lesson
• My class is part of the regular offerings of my instituion
• I will include a notice that the materials are protected by copyright
• I will use technology that reasonably limits the students' ability to retain for further distribute the materials
• I will make the materials available to the students only for a period of time that is relevant to the context of a class session
• I will store the materials on a secure server and transmit them only as permitted by this law
• I will not make any copies other than the one I need to make the transmission
• The materials are of the proper type and amount the law authorizes:

• Entire performances of non-dramatic literary and musical works
• Reasonable and limited parts of a dramatic literary, musical, or audiovisual works
• Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching
  

The materials are not in an amount the law specifically excludes from its coverage:

• Materials specifically marketed for classroom use for digital distance education
• Copies I know or should know are illegal
• Textbooks, course-packs, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session
  

If I am using an analog original, I checked before digitizing it to be sure:

• I copied only the amount that I am authorized to transmit
• There is no digital copy of the work available except with technological protections that prevent my using it for the class in the way the statute authorizes

For additional information on copyright please consult the following links:

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