Copyright Principles in Action

VII. Student Web Pages

The University does not own the copyrights to student-created web pages absent a voluntary assignment from the student. If a student places infringing material on his or her page, the University could be accused of being a contributory infringer (see discussion in Part VI supra. If the student is known to have infringing material on his or her page, the University can insist that it be removed promptly or that the student present university officials with proof that permission was obtained.

There should be no efforts (which would be quite infeasible in any case, given staff size) to systematically monitor student pages. Complaints of infringement should be referred to the UO Computing Services who will consult with the UO Office of General Counsel as necessary in investigating and resolving the matter.

Bootleg music ("mp3 sites") is sometimes found on student web pages. Having a copy on the site is one infringing act. When others download it, another infringing copy is made. And, since the copy was not legitimately acquired, playing the music probably constitutes an infringing performance. The music industry is understandably concerned about the transmission and availability of bootleg copies and is beginning to seek criminal prosecution of commercial "Internet music pirates". While most student offenders do not charge for access or downloads, the traffic to their sites can be incredibly heavy suggesting little chance of fair use and large actual (or large statutory) damages in a civil infringement action. If the student is financially benefiting from the site, (i.e. in some fashion selling the bootleg titles), he or she risks criminal prosecution for committing a federal felony.

Some students post bootleg software on their pages. Much the same analysis as in the preceding paragraph would apply. Unless the student were a CIS major doing a scholarly critique on aspects of the software’s architecture or performance, there is little chance the page containing the software would qualify for fair use even if the student had a license to use one copy of the software. Students who construct these "warez" sites rarely have purchased a license to use the software. Here again, complaints or suspicions should be reported to UO Computing Services.

For a description of new optional liability-avoiding procedures the University can take under the Digital Millennium Copyright Act of 1998, see Part VI above.

VIII. Distance Education Materials

As discussed in Part VI supra, an instructor’s web page could be used in a (contemporary) distance education program. This Part will concentrate on the use of copyrighted materials fixed in other mediums transmitted not on the Internet but via closed circuit or educational network telecasts or radio broadcasts. The controlling portion of the Copyright Act is Section 110(2) . This has been briefly discussed in Part III. B 2 supra. In essence, this section allows a distance education instructor to display a copyrighted map or a photograph or a piece of sculpture or a chart, or to read or quote from a book or article (but not a play), or to play or perform music (but not an opera) "over the air" when such performance or display is "directly related and of material assistance to the teaching content of the transmission." And, the transmission has to be received by official students in remote classrooms or by government employees undergoing training. Audio- visual works and movies must not be included (absent permission or license).

Some distance education classes are configured and supported to be interactive. To the extent that a videotape is made of the transmission, student recitations become "fixed" and thus those students have a copyright interest in their recitations and comments. While most students would be indifferent to this right, it is very prudent to obtain an explicit written permission from each student to be filmed and recorded for both archival and possible future educational uses.

IX. Multimedia Materials

The preparation of multimedia course materials and their use either on CD-ROMs or as posted to web sites presents many risks of infringement. A typical multi-media package will have text, audio, pictorials or graphics (including animations and schematics), digitized photos, audio-visuals or motion picture excerpts, a software "navigator", and possibly music. Of course, many of the works utilized may be within the fair use privilege or in the public domain (e.g. most clip art). It is also likely that the University author(s) may have themselves created some of the content elements. But the balance of the material combined in this medium will probably have multiple authors and possibly even several layers of copyright holders (e.g. pictorial art or music). Faculty, while scrupulous not to plagiarize actual text, may be quite indifferent to the possibility of violating rights in the supportive material and may well have an imperfect conception of what is "fair use." Moreover, in the excitement of the creative portion of such a project, obtaining necessary permissions (or discovering that they cannot be obtained at a feasible cost) may fall between the cracks. And, even when all the rights holders have been identified, there may be difficulties apportioning royalty rights among joint authors of the same element or among the different elements. Collaborative agreements should be established, where feasible, before embarking on such a project. Finally, if recognizable visages of real people will be incorporated, appropriational privacy concerns suggest getting written consents to the use of their likenesses from such persons.

Consider that scanning-digitizing a picture of a work of art for inclusion in a CD-ROM could entail getting permission from the original artist, the photographer who took the picture of the art object, and the publisher in whose art book the picture was found. Similarly, if background music (other than an original composition by the producer of the CD-ROM) is to be used, permission (or a license for synchronization rights) may well be needed from the composer, the arranger, and the recording company (Act, Secs. 106 and 114(b)). Or, if local musicians are to perform the music, "mechanical" rights will have to be obtained from the composer (or the sheet music publisher, whoever holds the copyright) for the recording.

Again, merely because a work was acquired off the Internet does not automatically mean it is in the public domain. While the uploader (assuming he/she is the author) may, by uploading, give implied consent to the bulletin board operator or web site host to "display" the work, it does not follow that rights to download (copy) and further distribute were given. Moreover, in many cases the person uploading is not the copyright holder and may herself be infringing by scanning/uploading. Determining who are the rights holders is no easy matter and can be further complicated when foreign copyright holders (under the Trade Related aspects of Intellectual Property Rights (TRIPS) treaty, many foreign copyrights are enforceable in the United States) or presently defunct authors/publishers are involved.

The multimedia producer using visual fine art must also be careful not to digitally "manipulate" the image so as to "distort ... or modify" the work in a way which would be "prejudicial" to the "honor or reputation" of the original artist (Act, sec. 106A(a)(3)(A) (the Visual Artists Rights Act)).. If scaling, recoloring, or cropping is necessary, waivers of rights from the artist probably should be obtained.

Once the necessary permissions/licenses have been obtained (or a good faith determination that the remaining uses are "fair" has been made) the fixation on the CD-ROM will confer copyright as a "collective" work if the instructional text itself is original, or as a "compilation" if no part used was original to the producer. And, if adaptations are made to existing copyrighted works used in the CD-ROM, it may become a "derivative" work. Upgraded versions (particularly common with software) will also be derivative works. The graphical user interface (GUI) may also be the subject of copyright as it may express a "look and feel" which is original and creative. See generally, Goldberg, Multimedia Technology and Fair Use, 44 Am.U.L.Rev. 919-962 (1995); Choe, Interactive Multimedia: A New Technology Tests the Limits of Copyright Law, 46 Rutgers L.Rev. 929-1001 (1994).

The Consortium of College and University Media Centers (CONCUMC) has developed "Fair Use Guidelines" which, if endorsed by publishers, museums, and composers' clearing houses, could give non-legislative, non-judicial "safe harbor" approval to educators and students in specified contexts. Under these Guidelines, students may use "portions of lawfully acquired copyrighted works" in their academic work and in portfolios for seeking jobs or entrance to graduate programs. Faculty may do the same as "teaching tools in support of an identified curriculum" (with no copying by students permitted and a fifteen-day limit on use if copying cannot be technologically restricted) in their own face-to-face teaching in classrooms and may also use such portions at peer conferences or workshops. Such multimedia products created by a faculty person may also be used in distance education so long as the recipient registered students are required to have pass-word access. Proper attribution, reference to U.S. copyright law, and an explicit restriction of further distribution, copying, or use must be displayed. Fairly generous portion limitations are included (usually 10%). Commercial reproduction/distribution is not within the Guidelines' "safe harbor".

The seemingly significant disadvantage under the Guidelines is the requirement that, even for educational purposes, permission must be obtained before more than one copy is made or when engaging in collaborative use beyond one institution or when using the multi-media over uncontrolled-access electronic networks, and -- for any use -- after two years. While this appears reasonable on its face, there should be no need to seek such permission if the use of all the non-original elements was "fair" (under the somewhat more restrictive Copyright Act factors) to begin with. That is, while the Guidelines are more generous initially, they could, in some situations, convert legal fair-use materials to permission-required materials after two years or in more extensive applications.

To read a hypothetical question (and the answer) involving creation of a multimedia product, click on Hypo No. 2.

... Continue to Part X