For the most part, copyright laws have not changed. What has changed is the delivery of courses and definitions of the classroom. As faculty increase their use of the Internet to present and distribute information, they have to learn how to apply copyright laws to digital material. Making the leap from print to web also calls for the adoption of new compliance strategies. For example, downloading copyrighted works from the web and posting them on a course web site requires technological interventions that are not necessary when distributing printed versions of materials in a classroom.

Copyright issues are currently a hot topic nationally on campuses in part because of the recent litigation surrounding the illegal sharing of music, movies, and software. The risks of violating copyright laws are escalating not just for students who illegally download music, but also for faculty who post copyrighted works on course web sites without permission. (For more information on federal and UC policies, visit the new UC copyright education web site .)

The web is making it easier to violate copyright laws. It is also making it possible for copyright holders to quickly detect violations. In fact, the Recording Industry Association of America (RIAA) routinely uses software that identifies copyright infringements made online. The RIAA has issued thousands of notifications of copyright violations to college campuses (and hundreds to UC campuses) as well as served two subpoenas to UCLA and UC Berkeley to find out the names of violators. The University is spending a significant amount of time and money dealing with these issues. (See related TLtC article: File sharing & the University: Copyright education a high priority )

Fair Use & Public Domain

"Trying to apply 200-year-old copyright laws to modern technology is a bit of a challenge," says Jan Carmikle, an attorney in the UC Davis Business Contracts office. "But the theory is still the same. The assumption needs to be that everything is protected by copyright."

Fair use is a concept in US copyright law that permits the use of copyrighted materials for criticism, comment, news reporting, teaching, scholarship, or research without the authorization from the holder of the copyright. Determining if a use of a work falls under fair use depends on balancing the circumstances of the use with the presumptive rights of the holder of copyright. How the work will be used, how much of it will be used, and the effect of that use on the work's commercial viability are all factors in this determination. Of course, works in the public domain may be used without permission. The public domain includes all works whose copyright protection has expired as well as works of the US Government and other legal documents. Authors can choose to put their works in the public domain voluntarily at any time.

"There are many things that faculty would love to put on their course web sites because doing so would make life easier for their students," says Carmikle. "But by doing this they may be falling outside the limits of fair use. It's easy to think of it as making a copy when you take a journal to the copy machine, but most people don't think of downloading something as making a copy. It is."

Carmikle says that faculty are often not aware that posting these downloaded materials on a course web site may constitute a copyright violation. Some instructors do not know that content found on web sites is usually copyrighted, just as it would be in a book or journal. According to copyright experts on UC campuses, the misperception that everything on the web is up for grabs is widespread.

"You shouldn't have to be a lawyer to teach a class," says Carmikle. "The general rule of thumb is that if you could use a printed material for in-classroom teaching, you can use it on your course web site. But you have to password protect it so that only your students can access it and you have to take it down when the use or the course is over."

Other copyright-related issues that have surfaced only since the emergence of the web include "framing" and "deep linking." The term "framing" is used to describe hyperlinks to content that resides on other web sites, but "framed" so that it appears that the content is hosted on your own web site. This practice is most likely in violation of copyright laws, experts say. "Deep linking" describes bypassing a site's home page to link to an internal page. Although the verdict is out on whether deep linking constitutes a copyright infringement, some experts recommend obtaining prior permission for such a practice, especially when linking to advertising-rich commercial sites that count on home page hits to generate revenue.

Although the basic tenets of copyright law have not changed, a couple of specific laws have been passed in recent years to deal with the new issues that have arisen in the digital age: the 1998 Digital Millennium Copyright Act (DMCA) and the 2002 TEACH Act. Under the DMCA, the university, in its role as the online service providers for its "subscribers" (i.e., students, staff, and faculty), is given shelter from liability for illegally shared material on its networks as long as, among other requirements, it expeditiously removes or blocks access to infringing material of which it is made aware. However, the law makes the university more responsible for infringements by faculty than by students. The DMCA states that the university becomes the responsible party for faculty who receive more than two notifications within a three-year period.

The TEACH Act establishes new standards for copyright and distance education. It expands the categories of works that can be used in distance education to encompass reasonable portions of most works, including copyrighted recordings of dramatic literary and musical works. Prior to the TEACH Act the use of these types of performance-based works was restricted. While the TEACH Act offers many improvements, the law requires universities to meet numerous requirements to safeguard against inappropriate use of copyrighted materials. (More information can be found on the UC copyright education web site )

Ownership of Course Materials

On the flip side of the use of copyrighted works is the creation and ownership of them. The nature of how online courses and digital objects are created, as well as their potential to be used by others, sparks a new debate about who owns what.

"The conventional way of doing things is being challenged by information technology," says Gerald Barnett, Director of the Office for the Management of Intellectual Property at UC Santa Cruz. "Previously content would be published through books or other channels, and now it can be published on web servers at universities instead of by a private publisher."

A course may include a learning object, such as a physics simulation, or photographs, text, or webcasts of lectures. Determining ownership becomes complicated because all of this might be accomplished by one instructor on his free time at home, or it could be done collaboratively by a team of faculty, staff, and students using campus computers, networks, and servers. Figuring out who owns this published content, especially for courses that are offered online or include significant technological enhancements, is challenging long-standing University policies and practices.

"Broadly in my experience over the years, it appears that there is a lot of interest in trying to figure out what a course is as IT resources become part of it," says Barnett. "If it's primarily the lecture and syllabus created by an individual, that seems very much the individual's property. But when it's a planned activity that takes place on University servers and by creative efforts of employees, then it's a team and the academic freedom that you have to look at is the academic freedom of the team."

This debate over ownership of courses and materials has sparked the creation of a new UC policy, which was issued on September 25, 2003. The UC Policy on Ownership of Course Materials, which supplements the existing 1992 Policy on Copyright Ownership (which remains in effect), was drafted by the University Standing Committee on Copyright. It states that the University owns any "course approval documents" but that faculty own the course materials, except if the following situations apply: "exceptional university resources" were used in its production; the works were created jointly (in which case ownership is shared among the creators); or there is a prior written agreement specifying another arrangement.

The University prepared the policy "to provide useful guidance for faculty, staff, and administrators about intellectual property rights for teaching materials in digital form," wrote former UC President Richard Atkinson in a letter to the campuses. "Because the use of technology in instruction is a rapidly evolving area, the policy provides that the Standing Committee on Copyright will monitor its implementation and recommend revisions based on experience."

"There are differences between who owns course materials and who owns the course," says Gary Matkin, Dean of Continuing Education at UCI and a member of the Standing Committee on Copyright. "If the University doesn't exercise some ownership over the course itself, then it is giving up a huge amount of control and it will ultimately hurt students."

UCI has drafted agreements with the developers of the online criminology courses that explicitly state that the University owns the course materials as well as the course.

"The people who are producing the courses for us are mostly the tenured faculty who are going to teach them," says Matkin. "They've signed an agreement that says that the Regents own the course and all of its materials." In return for that agreement, says Matkin, the instructors will receive a portion of the income derived from teaching of non-matriculated students (including Extension students) and a percentage of the income that the University receives if it licenses the course. Faculty also have the right to use the course at another institution in which they teach without royalty or payment. In addition, they receive $10,000 or the equivalent of two courses release time to create the materials.

For anyone considering creating online courses or digital materials, UCSC's Barnett says it is important to think about how you want your intellectual property to be used in the future as well as to weigh the equity of those involved in creating it.

"The most important thing is that copyright is about the future and not the past," says Barnett. "You should ask what should happen with the product over the next 36 months. What is in the best interest of the project that has created these materials and the community that the project intends to serve with these materials? It boils down to six basic words: academic excellence, sound contracting, and public benefit. If you apply policies to allow ensembles to thrive, then I think you solve a lot of issues about who owns something."