Introduction
Copyright, Fair Use, and Personal Rights and Privacy Toolkit
Over the last two decades, online education has taken the forefront at both the high school and secondary levels. This new
emphasis on delivering content via the internet has brought with it new challenges and concerns pertaining to intellectual property
creation, ownership, and use. Therefore, educational institutions and teachers have been forced to familiarize themselves and comply
with laws pertaining to intellectual property (Talab, 2007).
Intellectual property is a unique product of cognitive and creative work documented and established in concrete form (Dennen,
2016). As online education has flourished, so have concerns with intellectual property ownership, especially in regard to courseware
and other digital media utilized in the teaching process (Kromrey, 2005).
DMCA and TEACH Act
The Digital Millennium Copyright Act (DMCA) was signed into law in 1998 by President Bill Clinton. With the enormous increase in
online education and learning environments came an increase in the illegal use of intellectual property protected under the U.S. and
international copyright laws. DMCA implemented two international intellectual property treaties and outlined specific copyright-related
issues. Basically, it was created to help alleviate illegal use and reproduction of copyrighted material in the online environment. It
inferred large fines and punishments for individual or industry copyright violations but provided wide-reaching protections and exclusions
for educational institutions (DeBlis, 2018).
Needless to say, the online learning environment continued to grow as did the need to delineate legal and illegal use of intellectual
property. In response, during the 2002 legislative session, the United States Congress passed the Technology, Education and
Copyright Harmonization Act (TEACH Act). It broadened the uses of copyrighted materials for non-profit educational institutions. It
allowed for the display of nearly all kinds of copyrighted works, the transfer of digital materials to distance learners, the storing of
copyrighted materials for brief periods of time, and the creation of a digital version of analog a print works. However, these rights were
only extended to accredited non-profit educational institutions and they came with very specific guidelines (University of Minnesota
Libraries, 2020).
Copyright
In order to truly understand the DMCA and TEACH Act and the reasoning behind them, one must have a basic understanding of
copyright law. The major mechanisms for protecting intellectual property in the United States include copyrights, patents, and
trademarks. In the educational field, however, copyright use and infringement are one of the major concerns when addressing
intellectual property. Copyrights protect the expressive arts (visual art, music, dance, drama, writing, etc.) by providing their creators
with the exclusive rights to produce, display, perform and revise or produce derivatives of their creations. Additionally, owners can
benefit economically from their work while prohibiting others from doing the same without their permission (“Intellectual property”, n.d.).
Copyrights have been in existence in the United States since James Madison and the founding fathers penned the US constitution
but have been amended to fit the needs of society. Unfortunately, copyright protection and infringement are still major areas of concern.
Many individuals utilize the works of others without proper permissions under the guise of “fair use”. Some faculty members feel that
anything done in the classroom can be justified under the “fair use” clause. However, faculty members and universities must apply the
four “fair use” guidelines when making decisions, especially since the majority of universities no longer carry coverage to protect faculty
from violations and legal entanglements which can be insurmountable (Magna Publications, 2011).
One area of particular concern in regard to intellectual property and copyright within the educational arena is an online teaching and
learning (“Defending the freedom to innovate: Faculty intellectual property rights after Stanford v. Roche”, 2014). Although the majority
of online classes are created by the faculty members who teach them, most universities deem them the intellectual property of the
university. In so doing the university then holds the copyright to the material and controls all use of the material (Kromrey, 2005).
Therefore, educators must understand copyright and the protections provided them under the law and utilize them for their benefit.
Derivative Works
Another area of copyright law that comes to the forefront in education is the creation of derivative works. The copyright laws of the
United States are very explicit in terms of the creation of derivative works. Section 106(2) of the Copyright Act reserves the right to
create derivatives for the holder of the copyrighted work. By definition, a derivative work is a work based upon one or more preexisting
creations. Derivatives may include translations, fictionalizations, abridgments, condensations, dramatizations, reproductions of art,
sound recordings, or motion pictures, or any other form in which one can transform, recast, or adapt a previous work. Regardless of the
type of derivative, the law makes it clear that the right to create derivative works belongs to the copyright holder. For another party to
legally create derivatives, the creator must grant them permission for this use (Lipton & Tehranian, 2015).
The subject of derivates is complicated by the fact that the “fair use” doctrine contained in Section 107 of the Copyright Act appears
to be ambiguous. While section 106 (2) of the copyright act seems to be explicit in giving derivative rights to the creator, section 107
seems to be contradictory and suggests that transformative works should be free from liability (Lipton & Tehranian, 2015) Fair use
permits individuals other than copyright holders to create and utilize derivative works in the classroom setting. The law provides a four-
point test that must be met in order for a transformative (derivative) work to be considered lawful under fair use. Court cases have
shown that the more transformative the work, the less likely the individual is to be held in violation of the copyright law. This principle
was upheld in Harper & Row v. Nation Enters and in Salinger v. Random House (Stanford University Libraries, 2020). Litigation has
shown that decision making rests upon the amount of recasting, transformation, or adaptation made to the original work in order to meet
the “minimal degree of creativity” standard. However, the landmark 1991 Supreme Court decision in Feist Publications Inc. v. Rural
Telephone Service demonstrated that the threshold for transformation in a derivative work is very low, uncertain, and difficult to
determine with any measure of precision (Shipley, 2018). Therefore, close adherence to the stated guidelines must be taken and the
help of an intellectual property and copyright attorney might be advisable for the protection of both the individual and the institution.
Patents
Although patents and trademarks sometimes come into play at the post-secondary level, they are not as prevalent as copyright
concerns. Patents were designed to protect a creator’s inventions from being made, sold, or used by others for a certain period of time.;
normally 20 years. In order to acquire a patent, one must apply for and be approved by the US Patent and Trademark Office. The
process is complex, expensive, and time-consuming and often requires the services of an intellectual property attorney (“Intellectual
property”, n.d.). Because of the complexity and expense of patents, universities most often become involved in this process on behalf of
a faculty invention or discovery instead of the individual. Regardless, patent procurement is a costly endeavor that requires months or
years to complete, but they do safeguard the economic value of the invention or discovery.
Trademarks
Trademarks are unique for they protect the names and identifying marks of products and companies. The purpose of
trademarks is to make it easy for consumers to recognize the company’s or creator’s product with Nike being a prime example.
(“Intellectual property”, n.d.). Although individuals and companies are not required to register their symbol or name with the United
States Patent and Trademark Office (USPTO), it provides many advantages and protections for one’s products and identity and helps to
assure others can not lawfully use it (Jennings, n.d.).
Privacy Rights
Protecting the personal rights and privacy of students is of primary concern in the educational world today, especially when dealing
with online technology and the rapid dispensation of information. To protect the rights of students under the age of 13, Congress
passed the “Children’s Online Privacy Protection Act” (COPPA)in 1998. It banned websites and online services from collecting personal
information on children 13 years of age and under. In 2012 the Federal Trade Commission amended the law, adding to the list of
personal information protected. If operators are found to consistently use a purpose not stipulated in COPPA, it is a violation that can
carry stiff financial penalties. Host sites are also responsible for assuring any third part sites operating upon their behalf are in
compliance as well (Freeman Jr. & O’Neill, 2013). In recent years both Google and YouTube have been fined millions of dollars for
violating the COPPA rules, but in comparison to their income, the fines have been minimal. Therefore, many believe that giants in the
field such as these companies will continue to violate the rules until penalties become obtrusive to them (eChalk, 2019).
The federal government takes a very firm stance on the school’s compliance with student privacy. Schools are not authorized to
grant third-party apps or websites permission to collect student data. The Family Education Rights and Privacy Act (FERPA) places the
responsibility for protecting student privacy and data privacy upon the schools and their districts; not the third-party vendors with whom
they contract. This means that the school and not the app creator are responsible for adhering to student data privacy laws stipulated in
both the FERPA and COPPA (eChalk, 2019). Needless to say, it is imperative that all schools have sound written policies regarding
copyright and personal privacy protection that are precisely implemented and monitored at all levels.
Personal property rights and personal privacy are two of the most pressing issues in school today because of society’s dependence
upon technology. Therefore, it is imperative that clear policies are written, implemented, and monitored to protect all involved; students,
teachers, and institutions. When situations arise that are filled with uncertainty as to the direction to choose; it is best to err on the side
of caution. Your future may depend upon it.
https://www.shutterstock.com/image-illustration/3d-illustration-folder-focus-on-tab-761198749
Task
Copyright, Fair Use, Intellectual Property, and Personal Rights and Privacy Resources
The Educator’s Guide to Copyright and Fair Use
https://www.spps.org/cms/lib/MN01910242/Centricity/Domain/11270/Overvie…
Intellectual Property Rights: What Creators Need to Know About Rights
https://podcasts.apple.com/us/podcast/022intellectual-property-rights-what-creators-need/id1473533953?i=1000464578380
Copyright on Campus
https://www.youtube.com/watch?v=2UWaQK5Wbvs&t+120s
Crash Course Intellectual Property #1: Introduction to Intellectual Property
Crash Course Intellectual Property #2: Copyright Basics
Crash Course Intellectual Property #3: Copyright, Exceptions, and Fair Use
Crash Course Intellectual Property # 4: Patents, Novelties, and Trolls.
Crash Course Intellectual Property #5: Trademarks and Avoiding Consumer Confusion:
Crash Course Intellectual Property #6: International IP Law:
Crash Course Intellectual Property #7: IP Problems, YouTube, and the Future:
Children’s Online Privacy Protection Rule (“COPPA”)
Copyright.gov: Copyright Law of the United States
https://www.copyright.gov/title17/
Copyright Basics
https://www.youtube.com/watch?v=Uiq42O6rhW4&t=33s
Everything You Ever Wanted to Know About COPPA
https://www.k12blueprint.com/sites/default/files/COPPA-101.pdf
Copyright and Fair Use Guidelines for Teachers
https://www.xavier.edu/library/about/documents/Copyright_9-23-08.pdf
Examples of Fair Use Copyright Laws in the Classroom
https://info.legalzoom.com/article/examples-fair-use-copyright-laws-classrooms
Fair Use for Teaching and Research
https://copyright.universityofcalifornia.edu/use/fair-use.html
Process
Creating the online toolkit required that I assess the items that were of the greatest benefit to me as I attempted to master the
concepts surrounding intellectual property and its protection. To make certain that I was rightly interpreting the law, I first sought out the
actual laws listed on the Federal Trade Commission website pertaining to copyright, creation of derivatives, COPPA, and FERPA.
Although they are written in legal terms, they provided me the foundation for understanding and evaluating the rest of my resources.
Next, I resourced many of the references I had used throughout the course to substantiate my opinions and submitted work. I
found that articles written by various attorneys and law firms provided great insight as well as research and case law so that I could gain
a thorough understanding of the concepts I had been studying.
I also chose an assortment of videos that provided real-life scenarios to explain the various applications of intellectual property law.
The Crash Course Intellectual Property series was chosen because it goes through all aspects of Copyright and Fair use in a structured
yet humorous fashion. I chose two additional videos because they give a different approach to the concepts so that I might get a
different perspective.
I also chose two diagrams that provide a clear concise overview of copyright law. I think visuals are great because they can provide
a quick reference when you need a refresher or a review without having to pour through pages of text. The podcast included is great
because you can listen while you are working, driving, or relaxing and gain new understanding or just refresh your knowledge. It gives
a good overview of intellectual property rights and if you don’t understand or miss something, you simply stop it and play it again.
Since people learn in all different modalities, it is important to include resources from all areas. In so doing, you ensure that all are
successful in their own area.
Evaluation
The Editor’s Guide to Copyright and Fair Use provides a thorough and understandable look at fair use. It is composed of five
separate writings that give the basics of copyright law and fair use. Additionally, it goes into detail to discuss fair use application to new
technologies as well as teacher and institutional responsibility in its application. It gives direction to the teacher in order to prevent
copyright infringement.
Overview of CIPA, COPPA, and FERPA is exactly what the name states. It explains each of the three laws and what is required of
each district. It also outlines the requirements of the school district and provides an additional set of resources that can aid in
understanding.
Intellectual Property Rights: What Creators Need to Know About Rights is a podcast that is written for those who wish to publish
their work. It gives advice on filing for copyright registration and the basics one needs to know. It also provides guidance on uploading
works to YouTube, Facebook, and Twitter. Lastly, it discusses fair use and how using things one thing are free could get you sued.
Copyright on Campus is an animated video that gives a down to earth explanation of the Copyright law as it pertains to the
instructor. It is factual yet presented in common terms that make it easy to understand. It is a great resource for the teacher at any
level, especially when teaching online.
Crash Course Intellectual Property is a seven-part video series that discusses intellectual property, copyright, fair use, trademarks,
international IP law, YouTube, IP problems, and the future of intellectual property law. The instructor is knowledgeable and entertaining
while framing the conversation is a language that is understandable by all.
Children’s Online Privacy Protection Rule (“COPPA”) is the text form of the COPPA law as posted on the Federal Trade
Commission website. It includes the law, federal register notices, press releases, public events, and related documents in
reference to the law. Although it is written in legal terminology, it is an original source and valuable for reference and review.
Copyright.gov: Copyright Law of the United States is the actual print version of the copyright law adopted by the United States
Congress. Although it is written in legal terms, it is always good to have original source documents if possible.
Copyright Basics is an animated video that gives a basic understanding of copyright and the copyright symbol and when it should
be used. It also explains fair use and the four rules that apply and gives practical examples of meeting those guidelines. It also covers
first sale, attribution, and public domain which are not covered in many of the others. The video elaborates on the enormity of
copyright infringement in this country and the detriment it can be to the creator. Although it is a short video, it does a thorough job of
explaining copyright basics.
Everything You Wanted to Know About COPPA is a great resource for those working directly in the field of education. It addresses
issues that schools must consider, COPPA updates, and obligations of the operator. It is short, but thorough and contains links to three
additional sources that go into further detail to explain the points outlined.
Copyright and Fair Use Guidelines for Teachers is a well-written concise graphic document that outlines the various types of media,
specifics of the medium used, what the user can legally do with the medium, and the fine print or details pertaining to the use of that
specific medium. It is a wonderful reference resource which can be downloaded or printed and posted for easy access because it
pertains specifically to educator
Examples of Fair Use Copyright Laws in the Classroom is a very short article that addresses copyright, fair use, and public domain
usage. However, the positive of this article is the related writings linked to this article including 5 Things You Can’t Copyright, and Top 5
Intellectual Property Disputes. These two articles add additional understanding to the information provided in this article.
Fair Use for Teaching and Research is an article by the University of California that addresses the four factors of fair use. It uses a
graphic to introduce the factors to consider and how these factors affect use. It is a concise application of the concept of fair use that is
well written and easily understood.
Conclusion
American education has been revolutionized by the innovations in technology leading to a system that is inundated by online and
blended learning environments. As education has changed so have the issues surrounding intellectual property. Although intellectual
property rights were established in the United States Constitution in the 1700s, they have been greatly revised to accommodate the
technological revolution (Magna Productions, 2011).
Although the definition of copyright has not changed, the types of intellectual property covered under copyright law have greatly
increased. The additional laws guiding intellectual property and privacy rights have also increased greatly including the adoption of
DMCA, the TEACH Act, the fair use principle, FERPA, and COPPA: all of which are intended to protect the creator or the person utilizing
the online platform.
It is imperative that educators and educational institutions institute guidelines and training for both students and staff that incorporate
a well-developed understanding and application of copyright and privacy laws. Non-compliance or copyright infringement can result in
large financial fines for both individuals and educational institutions (Talab, 2007).
Keeping abreast of copyright and privacy laws is essential for all educational institutions. Up-to-date knowledge coupled with proper
training and exact application can help to ensure that students, faculty, and institutions will not find themselves in the midst of legal
litigation (DeBlis, 2018).
The resources provided in this document outline all facets of copyright and personal privacy rights as they apply to educational
institutions, students, and instructors. Their use can bring clarity of understanding and provide a foundation upon which to base
decisions regarding intellectual property rights. Like all things in life, copyright and personal privacy issues are constantly changing.
Therefore, this document too, must be fluid in nature adding new and up-to-date information as it becomes available.
Credits
DeBlis, M. (2018). DMCA: A safe-harbor from liability for copyright infringement or the thunder from down under? Intellectual Property & Technology Law Journal, 30, 20–23. Retrieved from https://medium.com/@mjdeblis/dmca-a-safe-harbor-from-liability-for- copyright infringement-or-the-thunder-from-down-under-f8e116e0353e
Defending the freedom to innovate: Faculty intellectual property rights after Stanford v. Roche. (2014). American Association of University Professors, 1, 1–19. Retrieved from https://www.aaup.org/file/aaupBulletin_IntellectualPropJune5.pdf
Dennen, V. (2016). Ownership of digital course artifacts: Who can access and use your words, images, sounds, and clicks? Quarterly Review of Distance Education, 17(4), 5–19. Retrieved from https://www.infoagepub.com/qrde-issue.html?i=p5903d3dd71a60
eChalk. (2019). Are education apps putting student privacy at risk? Retrieved from https://www.echalk.com/blog/2019/10/11/are-
education-apps-putting-student-privacy-at-risk
Freeman Jr., R., & O’Neill, J. (2013). FTC Issues substantially revised COPPA rule, effective July 1, 2013: Review of changes and
compliance tips. Venulex Legal Summaries, 1, 1–8. Retrieved from http://search-ebscohost-com.proxy1.ncu.edu/login.aspx?
direct=true&db=bth&AN=87755113&site=eds-live
Goh, M. C. (2015). Academic entrepreneurs’ intellectual property strategies should include more than only patents. Retrieved from
https://theconversation.com/academic-entrepreneurs-intellectual-propert…
Harvard University. (2018). Freedom to teach: Claiming educational fair use. Retrieved from
https://cyber.harvard.edu/research/freedomtoteach
Intellectual property. (n.d.). Retrieved fromhttps://www.alllaw.com/topics/intellectual_property
Jennings, J. (n.d.). University trademark licensing: Creating value through a “Win-Win” agreement. Retrieved from
https://www.wipo.int/export/sites/www/sme/en/documents/pdf/uni_trademar…
Kromrey, J. (2005, June). Intellectual property and online courses: Policies at major research universities. Paper presented at the
National Educational Computing Conference, Philadelphia, PA.
Lipton, J., & Tehranian, J. (2015). Derivative works 2.0: Reconsidering transformative use in the age of crowdsourced creation.
Northwestern University Law Review, 109(2), 383–444. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2514250
Magna Publications. (2011). Copyright and fair use issues in online education. Retrieved from
https://www.facultyfocus.com/articles/online-education/copyright-and-fa…
Shipley, D. (2018). Derivative works and making sense of the maxim that ‘Others are free to copy the original. They are not free to copy
the copy.’ University of Georgia School of Law: Research Paper Series, 44, 231–272. Retrieved from
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3273463
Talab, R. (2007). Faculty distance courseware ownership and the “Wal-Mart” approach to higher education. TechTrends, 51, 9–12. http://dx.doi.org/10.1007/s11528-007-0047-3
The University of Minnesota Libraries. (2020). Copyright services: The TEACH Act. Retrieved from
https://www.lib.umn.edu/copyright/teach-act