Instructional Materials
Copyright Issues: Acquisition or Creation of Instructional Materials
 |
Click on the following text link to view: One of the most important issues related to the acquisition or creation of instructional materials is copyright. The law spells out several specific exceptions to the exclusive rights of copyright owners (Newby, Stepich, Lehman, & Russell, 2006). |
Under copyright law:
- Computer software may be duplicated which such duplication is essential to the use of the software on a particular computer or to create an archival backup copy of the software.
- Educators have some latitude for displaying copyrighted works in face-to-face settings.
- Instructors within a distance education course now are allowed to transmit materials to students within the distance course. The TEACH Act of 2002 covers works an instructor can show or play during a distance class such as movie or music clips, images of artworks, speeches, etc. The TEACH Act does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of when the class meets. Crews (2003) summarized the duties of instructors covered by the TEACH Act in the areas of works explicitly allowed, works explicitly excluded, instructor oversight, mediated instructional activities, and in converting analog materials to digital formats. His summary can be read at http://www.copyright.iupui.edu/teach_summary.htm.
The new law now explicitly permits: performances of nondramatic literary works; performances of nondramatic musical works; performances of any other work, including dramatic works and audiovisual works, but only in “reasonable and limited portions”; and displays of any work “in an amount comparable to that which is typically displayed in the course of a live classroom session.”
The following materials may not be used: works that are marketed “primarily for performance or display as part of mediated instructional activities transmitted via digital networks”; and performances or displays given by means of copies “not lawfully made and acquired” under the U.S. Copyright Act, if the educational institution “knew or had reason to believe” that they were not lawfully made and acquired. The first of these limitations is clearly intended to protect the market for commercially available educational materials.
The statute mandates the instructor’s participation in the planning and conduct of the distance education program and the educational experience as transmitted. An instructor seeking to use materials under the protection of the new statute must adhere to the following requirements:
- The performance or display “is made by, at the direction of, or under the actual supervision of an instructor”;
- The materials are transmitted “as an integral part of a class session offered as a regular part of the systematic, mediated instructional activities” of the educational institution; and
- The copyrighted materials are “directly related and of material assistance to the teaching content of the transmission.”
- The requirements share a common objective: to assure that the instructor is ultimately in charge of the uses of copyrighted works and that the materials serve educational pursuits and are not for entertainment or any other purpose. A narrow reading of these requirements may also raise questions about the use of copyrighted works in distance-education programs aimed at community service or continuing education. While that reading of the statute might be rational, it would also be a serious hindrance on the social mission of educational institutions.
In perhaps the most convoluted language of the bill, the statute directs that performances and displays, involving a “digital transmission,” must be in the context of “mediated instructional activities.” This language means that the uses of materials in the program must be “an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting.” In the same provision, the statute specifies that “mediated instructional activities” do not encompass uses of textbooks and other materials “which are typically purchased or acquired by the students.” The point of this language is to prevent an instructor from including, in a digital transmission, copies of materials that are specifically marketed for and meant to be used by students outside of the classroom in the traditional teaching model. For example, the law is attempting to prevent an instructor from scanning and uploading chapters from a textbook in lieu of having the students purchase that material for their own use. The provision is clearly intended to protect the market for materials designed to serve the educational marketplace. Not entirely clear is the treatment of other materials that might ordinarily constitute handouts in class or reserves in the library. However, the general provision allowing displays of materials in a quantity similar to that which would be displayed in the live classroom setting (“mediated instructional activity”) would suggest that occasional, brief handouts—perhaps including entire short works—may be permitted in distance education, while reserves and other outside reading may not be proper materials to scan and display under the auspices of the new law.
Some copyright owners have held steadfast against permitting digitization in order to control uses of their copyrighted materials. The TEACH Act includes a prohibition against the conversion of materials from analog into digital formats, except under the following circumstances:
- The amount that may be converted is limited to the amount of appropriate works that may be performed or displayed, pursuant to the revised Section 110(2); and
- A digital version of the work is not “available to the institution,” or a digital version is available, but it is secured behind technological protection measures that prevent its availability for performing or displaying in the distance-education program consistent with Section 110(2).
- These requirements generally mean that educators must take two steps before digitizing an analog work. First, they need to confirm that the exact material converted to digital format is within the scope of materials and “portion” limitations permitted under the new law. Second, educators need to check for digital versions of the work available from alternative sources and assess the implications of access restrictions, if any.