An Exploration of Copyright Law in

Distance Education
Jerry Roper
ABSTRACT - This paper serves as a brief overview of the laws designed to protect individuals
involved in the education process. In most situations, legislators are careful in attempting to
address present concerns or issues before conflict arises. Amendments to previously passed
laws are often necessary to keep up with dynamic fields such as information technology,
health care, and education. Under the influence of the constant changes in technology,
distance education administrators must remain compliant with copyright law; else they face
the potential of litigation inside the courtroom. It appears the problem many educators are
experiencing is related to unclear definitions of what is considered to be fair when reproducing someone elses work and distributing it throughout the Internet. As one may already be
aware, ignorance of the law is not a viable defense once action escalates into a formal lawsuit.
Clearer definitions for the dos and do nots are sorely needed to minimize copyright violations
and keep distance education faculty on the right legal path.
Keywords: Copyright Act of 1976, copyright infringement, Digital Millennium Copyright Act,
distance learning, fair use, intellectual property, open access, TEACH Act

Introduction
Most would probably agree that education has
not existed without many challenges. Educators
have witnessed a great deal of change over the
years, especially those who participate in higher
education. With more emphasis on teaching online, a new set of instructors tasks have commanded more planning and preparation, which can be
significantly disproportionate in comparison to the
time ordinarily spent preparing traditional, faceto-face courses. As Ncube (2011) observes, distance education students will require their instructors to provide necessary course materials
in electronic form, and because class sizes can
sometimes be large, instructors invariably may find
themselves in a precarious copyright situation. If
a learning institution wishes to avoid copyright
infringement, Ncube (2011) stresses the importance of continual and systematic review of materials (p. 270). Nevertheless, if the distance education faculty members are spending a great deal
of time in preparing the coursework, the question
this time spent begs is: Who is the rightful owner
and declares the copyright to the materials?

Copyright Act of 1976 and Fair Use

Since the early 18th century, lawmakers have
strived to protect the originators of personal property that potentially can become misused by others. Congress recognized that a balance needed
to exist between those who created the works and
the people who accessed the authors works. Lyons (2010) writes that Congress passed the first

copyright laws in the early 1700s; Congressional

members later improved and expanded them to
include a section that covers fair use when they
created the Copyright Act of 1976 (p. 58). The
original laws possessed no time constraints, but
the lawmakers eventually addressed this oversight
by adding a mandatory renewal process along with
implementing the copyright symbol currently in
use, the . Copyright initially began with a 14year duration with an option to renew for an additional 14 years: Presently, copyright lasts until
the authors death with an option to extend for an
additional 70 years, which is possible because of
the Copyright Term Extension Act of 1998or
Sonny Bono Copyright Term Extension Act of
1998 (Nelson, 2009). Additionally, corporations
qualify for an extension of 95 years.
Although policymakers have revised the laws
many times since their inception, the underlying
declarations have remained constant. Under
copyright, the law protects an author in the event
his or her work is reproduced, copied or closely
imitated, distributed to the public, and publicly
displayed without prior consent (Lyons, 2010).
However, in certain situations, such as online education, the copyright law may cover copying and
distribution within limits. Baughman (2012) informs that such fair circumstances are capable of
bypassing copyright restrictions; this fair use
clause originated from the British Parliaments
passing of the Statute of Anne in 1709 (p. 1). In
that declaration, Britain decided it would be bet-

VOLUME 2 NO. 4 (2012) Journal of APPLIED LEARNING TECHNOLOGY

16

ter for the government to handle copyright rules

and regulations versus allowing private parties to
handle the details. Subsequently, the U.S. Congress enacted the fair use clause to become law,
which became popularly know as common law
to cover fair use of copyrighted works for criticism,
commentary, news reporting, teaching, scholarship, and research (Baughman, 2012, p. 1). On
first inspection, it appears that teachers should
be completely absolved from copyright violations
under the fair use provision, but further investigations have revealed the contrary.

Copyright Controversy in Online

Learning
Despite the changes the government has made
with the copyright laws over the years, no one clearly has defined who owns the intellectual property
a teacher creates, whether or not it is the teachers property or the institution in which the teacher is employed. This dilemma is often magnified
for distance education faculty. From the legal perspective, Loggie et al. (as cited in De Gagne &
McGill, 2010) describe intellectual property as any
invention, creative work, or discovery from a person that contains value; in education, the intellectual property can be course syllabi, books,
scholarly publications, lecture notes, or presentation files. Petersen (as cited in De Gagne &
McGill, 2000) extends the definition to include
course reading materials, assignments, discussions, and even examinations. The problem of
ownership of the intellectual property appears to
be based primarily on perspective. Although some
instructors may invest a great deal of time and
effort in creating the property, if they used their
employers resources in creating the materials, one
could say that the school is entitled to take ownership of the property. Many institution administrators attempt to justify their claim to the property by creating work-for-hire agreements; faculty, upon hiring, would sign and consent to relinquishing rights to anything created during employment.
Exactly who should declare ownership of the
intellectual property becomes an even greater issue when distance learning is the method of lesson delivery. Fineberg (2009) makes an interesting point that until around the beginning of the
millennium, Congress made no updates to the
copyright laws since 1995, the time when the Internet began to grow in popularity. The author
also informs that the clause stating no reproduction of copyrighted materials by educators or librarians only covered physical photocopying, microform reproductions, videotaping, or any other
method of duplicating visually-perceptible mateVOLUME 2 NO. 4 (2012)

rial (Fineberg, 2009, p. 239). Because of the obviously vague interpretation of visually perceptible materials, and the growing threat of Internet
piracy, congressional members created an addendum in 1998 known as the Digital Millennium
Copyright Act, or DMCA. Concrete guidelines to
cover electronic use of copyrighted materials as
required in online or distance education were still
not addressed until 2002, when the government
passed the Technology, Education, and Copyright
Harmonization Act, or TEACH Act (Fineberg,
2009). The TEACH Act was aimed at decreasing
confusion online learning institutional officers often experience by outlining exactly what is considered to be fair use of digitized materials.
Even though early copyright laws contained a
great deal of uncertainty and ambiguity, DeVary
(2008) notes that before the government made its
first revisions in 1976, only two separate copyright infringement cases against teachers appeared
in the courts with rulings against them. The exceptions granted to distance education faculty
members with the TEACH Act neither completely
exempts nor exonerates them from copyright infringement. As Ncube (2011) advises, organizers
of distance education must always plan to ask
the originators permission before reproducing and
distributing copyrighted materials to the learners.
Otherwise, the unfortunate outcome to sidestepping this important task of requesting permission
in advance inevitably could lead to litigation. For
example, in 2010 an outside organization that
protects educational film and video producers
challenged the University of California-Los Angeles (UCLA). The Association for Information and
Media Equipment, or AIME members cited that
UCLA was in violation of using its members video
footage, of which PBS (Public Broadcast System)
is a major part, and illegally posting the videos in
the schools online courseware system without
advanced approval (Dames, 2010). Soon afterwards, AIME contested Cornell University representatives on the same grounds as UCLA.
In another legal battle that started in April 2008,
three scholarly publishers, Cambridge University
Press, Oxford University Press, and Sage Publications sued Georgia State University (GSU) officials
with charges of 99 counts of copyright infringement (Baughman, 2012). The publishers stated
that the officials clearly violated copyright laws with
systematic, widespread and unauthorized copying and distribution of vast amounts of copyrighted works via the schools website (Baughman,
2012, p. 2). The precipitating factor in this lawsuit was the method of distribution of student
course materials. Many school officials have been

Journal of APPLIED LEARNING TECHNOLOGY

17

using what some educators refer to as Course

Packs that oftentimes contain reading compilations for a particular course. Instructors distribute the packs electronically, and the school assesses the students a fee; this service has increased almost exponentially in cost because of
the associated licensing fees. To offset costs in
what they believed were still fair use, GSU officials opted to rely on using a combination of their
librarys e-reserves or electronic reserves and posting the reading materials directly onto the instructors websites (Baughman, 2012). Consequently,
the three publishers filed a formal complaint in
the Atlanta District Court. After four years of arbitration, on May 11, 2012, the judge ruled that
GSU officials only violated five of the 99 alleged
copyright infringements.

Strategies for Avoiding Copyright

Infringement
Most educators would probably agree that misinformed decisions could often lead to catastrophe. Problems become exacerbated only when no
one sets a clear delineation between what is considered fair use with copyrighted materials and
what is not, and thus distance education administrators sometimes find themselves in litigation.
Some experts believe that safeguards exist for
helping to prevent infringement. These experts
also observe that although more research is needed in this legal area, there are still suggestions for
improvement, especially when dictating thresholds
for permissible copying (Fineberg, 2009). One of
the safest approaches a university leader can take
is to become linked with the open access community for accessing online scholarly works. In this
community, no user fees exist and no prior permission requests are necessarythe users are,
however expected to give the authors control over
the integrity of their work and to give proper citations when using the authors materials (Lyons,
2010; Nelson, 2009). Many technologies already
exist in an open access type of platform, so therefore it should only be a matter of time before contributors add more materials to the open access
community.
Unquestionably, copyright is a big business that
continues to expand, and many university leaders may not be equipped to manage copyrighting,
much less provide satisfactory resolutions to problems that develop. Ryan (2011) acknowledges the
importance of strategic roles within the universities, such as directors of copyright offices and describes how, at the time in 2000, the newly ap-

pointed director for this position at Purdue University acquired a blank canvas to transform into
a working model (p. 111). For any new administrator in this type of position, success is first related to addressing necessary questions, such as
how has the school been handling copyright issues, does a plan or contingency plan exist for
dealing with the issues, and has a manual of policies and procedures been formally drafted? The
administrator, according to Ryan (2011) should
still probe further, especially if someone else has
already written a policy. Essentially, the official
would need to survey the policys coverage and
limitations in sufficient detail to ensure that it is
expansive enough to handle all types of potential
copyright problems the school could encounter.
The administrator would, among all the other details, need to designate the proper official within
the organization who will handle any copyright
questions that arise. This copyright office director should also decide the scope of jurisdiction:
Will the office only handle problems within the
university or will it also reach out to respond to
questions within the surrounding community?
To help ensure protection of original works,
Gales (as cited in Nelson, 2009) strongly urges
educators to register their revenue-generating
materials as soon as possible. This strategy holds
for both physical media as well as digital, Webbased items such as online courses. The registration process is not tedious and a teacher can
conveniently complete it online. The major benefit of registration is that it provides the instructor
with a better legal position in the unfortunate event
of a lawsuit. In addition to registration, as previously stated, many distance education instructors can help to avoid problems altogether by properly following through with requesting permission
to use a protected work. Nelson (2009) states that
oftentimes, authors will not expect to be paid royalties if the instructors plan to use the works strictly for educational purposes; the authors may simply request recognition. In 2006, the government
could hold copyright violators accountable for
$750 to $150,000 per infraction (Foster as cited
in Nelson, 2009); one can only imagine how much
this penalty has increased over the years.
A final possible plan for distance education professionals could involve creating explicit guidelines for media use, similar to Table 1. Because a
great deal of misinterpretation can easily create
problems, if a distance learning officer makes an
effort to create a simple chart outlining the thresholds, little room for error should exist.

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Table 1. Fair Use Guidelines for Media Use

Type of Media
1. Motion Media
2. Music
3. Text
4. Illustrations/Photographs

Suggested Acceptable Use

10 percent or 3 minutes, whichever is less.
10 percent, but no more than 30 seconds.
10 percent or 1,000 words, whichever is less.
Entire illustration/photograph, no more than
5 images by one artist. Collective work,
10 percent or 15 images.
10 percent or 2,500 fields or cell entries,
whichever is less.

5. Numeric Data Sets

Note. From Copyright and Distance Education: The Impact of the Technology, Education, and
Copyright Harmonization Act, by E. Nelson, 2009, Association for the Advancement of Computing in
Education, 17(2), p. 96. Copyright 2009 by Eric Nelson. Reprinted with permission.
As an example, if a music instructors director
delegated the task of creating a new online course,
the instructor could easily refer to this type of table to begin designing. If the instructor planned
to upload music clips from Beethoven Symphonies 7, 8, and 9, and the clips were approximately
eight minutes in duration, the educator could
quickly determine that each clip should be truncated to less than 3 0 seconds each to maintain
copyright compliance. Uploaded video content,
the instructor would find, cannot exceed three
minutes.

University Roles and Policies for

Copyright
It is clear that policies and procedures are an
important, vital part of an educational institutions
daily operations. Leadership within a school system could greatly suffer if departmental directors
and managers do not create concrete policies and
guidelines for routine departmental functions and
procedures; strategies for mitigating legal problems are also essential. In regard to copyright law,
some schools designate an outside legal organization to handle any problems a teacher may experience. For example, the University of Wisconsins Board of Regents relies on a copyright attorney who is a part of the Office of General Counsel
(University of Wisconsin, 2010). Additionally, as
a model for other schools to follow, the University
of Wisconsin also provides an FAQ, or frequently
asked question Web page for the staff to consult
in the event of a problem. Other schools may exercise the option to hire an attorney to serve as an
employee of the institution, possibly at the level of
director of legal affairs or chief legal officer (University of Maryland, 2012). Faculty members
should benefit more when the legal advisor has
an office on-site because of the increased accessibility.

VOLUME 2 NO. 4 (2012)

Conclusion
Teaching professionals have witnessed many
new shifts and trends develop in education over
the past years. Given the nature of technology,
these professionals undoubtedly will encounter
many additional changes. Because distance
learning tends to be a more convenient alternative to learning versus the traditional classroom
models, more instructors have to acclimate quickly
to this higher paced, and sometimes greater demanding method of lesson delivery. Without a
clear understanding of copyright laws as they apply to technology, a distance education instructor
could easily become an offender of copyright law
and elicit legal action for him- or herself or even
his or her employer. The legal system is not perfect, and many laws may be plagued with ambivalence, but school faculty members will still need
to become as familiar as possible with what is considered fair use in regard to using others copyrighted materials.

References
Baughman, S. (2012). The Georgia State University copyright case/ : Implications and incentive in higher education and publishing. Access
to Knowledge, 4(1), 17.
Dames, M. K. (2010). Educational use in the digital age. Information Today, 27(4), 18-19.
De Gagne, J., & McGill, B. (2010). Ethical and
legal issues in online education. Journal of
eLearning and Online Teaching, 1(7), 213 .
DeVary, S. (2008). National distance education and
trends. Distance Learning, 5(1), 55-60.
Fineberg, T. (2009). Copyright and management
system. Libri International Journal of Libraries
& Information Services, 59(4), 23 8-247.
Kranch, D. A. (2009). Who owns online course intellectual property? Quarterly Review of Distance Education, 9(4), 3 49-3 56.

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Lyons, M. G. (2010). Open access is almost here:

Navigating through copyright, fair use, and the
TEACH act. Journal of Continuing Education
in Nursing, 41(2), 57-64.
Ncube, C. (2011). Key copyright issues in African
distance education: A South African case study.
Distance Education, 32(2), 269-275.
Nelson, E. (2009). Copyright and distance education: The impact of the Technology, Education,
and Copyright Harmonization Act. AACE Journal, 17(2), 83 -101.
Ryan, M., & Ferullo, D. (2011). Managing copyright services at a university. Reference & User
Services Quarterly, 51(2), 111-114.
University of Maryland. (2012). Office of legal
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About the Author

Jerry Roper is a doctoral student in the
Computing Technology in Education program
of the Graduate School of Computer and Information Sciences at Nova Southeastern University in Fort Lauderdale, Florida. From an
early age, he was always very engaged in science and technology. Throughout grade school
as well as high school he was self-taught in
various computer-programming languages. He
earned three undergraduate degrees in biology, respiratory therapy, and computer science;
and one graduate degree in education. He
spent 12 years working in health care, and a
total of approximately five years in IT. As soon
as his interests shifted to education, he knew
he could better serve his community by blending as much of the skills he has acquired in
the workplace to help adult learners become
successful and productive in this constantly
evolving, technologically driven environment.
He currently resides in Los Angeles, California
and works full time as an Advanced Respiratory Therapy Instructor at Concorde Career
Colleges, Inc.
jroper@concorde.edu

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