Copyright Compliance and Fair Use

Copyright Compliance and Fair Use

Order Description

Scenario 1
Dr. Lucas is designing an asynchronous online undergraduate psychology course on the biology of behavior. She conducted an Internet search and came across an

interactive 10-minute multimedia segment on the brain that she would like to embed into her classroom as a learning resource for students. Dr. Lucas believes she does

not need to seek permission for use of the multimedia segment in this manner or cite its source because it will be used for educational purposes in her classroom, but

she is not sure.
With these thoughts in mind:
1. What factors should Dr. Lucas consider in determining if her use of the multimedia segment complies with or violates copyright law and fair use?
2. What advice would you offer Dr. Lucas to aid in making her decision?
In this discussion you are asked to: write a two-paragraph analysis that addresses the questions for scenario 1. Be specific and provide support from the Learning

Resources and scholarly literature.
I will upload these articles that are to be used:
? Ko, S., & Rossen, S. (2010). Copyright, intellectual property, and open educational resources. In Teaching online: A practical guide. (3rd ed., pp. 227?244). New

York, NY: Routledge.
Teaching online: A practical guide 3rd ed. by Ko, S., & Rossen, S. Copyright 2010 by Taylor & Francis Group LLC – BOOKS. Reprinted by permission of Taylor & Francis

Group LLC – BOOKS via the Copyright Clearance Center.
? Rodriguez, J. E. (2011). Social media use in higher education: Key areas to consider for educators .Journal of Online Learning & Teaching, 7(4). Retrieved

? Starr, L. (2010). The educator?s guide to copyright and fair use: A five-part series. Retrieved from

Social Media Use in Higher Education: Key Areas to Consider for Educators

Julia E. Rodriguez
Assistant Professor
Information Literacy and Educational Technology Librarian
Oakland University
Rochester, MI 48309 USA


The use of social media in higher education classrooms is on the rise as faculty employ a variety of software tools and free web applications to enhance learning,

communication, and engagement. Web 2.0 social software exists beyond traditional course management systems and potentially opens up the academic environment to a

public space. This article presents important issues for educators to consider as they use these new tools by investigating the ramifications of moving academic

activities to a public sphere and examining how laws that govern our academic freedoms and behaviors translate in this new environment. The discussion focuses on

concerns specific to incorporating the use of social media and user-generated content into the teaching and learning environment in higher education, touching on

compliance with disability and privacy law, intellectual property rights, copyright law, and the fair use exemption providing practical advice with each area of


Keywords: user-generated content, intellectual property rights, copyright, ADA, FERPA, privacy, fair use


With faculty using a variety of software tools and free web applications to enhance learning, communication, and engagement, the use of social media is on the rise in

higher education classrooms. Emerging Web 2.0 social software exists beyond traditional course management systems and potentially opens up the academic environment to

a public space. By using these tools, academic content, discussions, and other interactions no longer live in the safe, controlled world of academia but now become

public – living on public servers, retrievable by public search engines, where most, if not all, are owned by for-profit and public companies.

Rather than debating or discussing in any depth pedagogical reasons for using social software tools for teaching, three important questions will be addressed: 1) What

should educators know or consider as they employ these tools? 2) What are the ramifications of moving academic activities to the public sphere? 3) How do laws that

govern our academic freedoms and behaviors apply in the online environment? The discussion that follows focuses on issues specific to incorporating social media and

user-generated content into the teaching and learning environment in higher education, touching on compliance with the Americans with Disabilities Act (ADA) and the

Family Educational Rights and Privacy Act ( FERPA), intellectual property rights, copyright law, and the fair use exemption.

User-Generated Content (UGC), Social Media, and the Web 2.0 Revolution

The ubiquitous term “social media” has become inherently connected to the popular YouTube, Flickr, and Facebook websites. Describing media as “social” implies that it

exists in a social space and/or users interact in some way with the media. Kaplan and Haenlein (2010) defined social media as “a group of Internet-based applications

that build on the ideological and technological foundations of Web 2.0 and that allow the creation and exchange of user-generated content” (p.61).

User-generated content (UGC) is another term popularized by the possibilities of Web 2.0 applications, which no longer limit users to being passive consumers of

content but enable them to become active participants and even authors in a collaborative social environment. To be considered UGC, the creative content must be openly

published and accessible and developed outside the commercial sphere (Kaplan & Haenlein, 2010). In this wayusers are developing content for the sake of the creation

rather than as a consumable commodity (Halbert, 2009).

The term “Web 2.0” first appeared in 2004 to describe the transition of the World Wide Web from a broadcast to a participatory medium, recognizing the revolution

taking place by the unprecedented and ongoing collaboration between software developers and end-users (Kaplan & Haenlein, 2010). This development, brought on by new

and enhanced functionality, set the stage and created the infrastructure for social media to evolve (Kaplan & Haenlein, 2010). Web 2.0 structure and social networking

applications allow users to produce more easily and widely share UGC. Thus, social media is the arena where users can “engage in the creation and development of

content and gather online to share knowledge, information, and opinions using web-based applications and tools” (Grover & Stewart, 2010, p. 9).

Teaching with Social Media in Higher Education

The Web 2.0 revolution has certainly entered education, carrying with it the notion that users add value through their participation (Mason & Rennie, 2008). It has

changed the web browsing culture from passive to participatory with easily-created user-generated content. This call to users to become content creators radically

challenges the traditional authoritatively-driven teaching and learning model. When students actively participate in knowledge creation for themselves and their peers

by employing the tools they use every day, they are changing the flow of information from “unidirectional to multidirectional,” (Grover & Stewart, 2010, p. 10-11) and

defining a new Learning 2.0 paradigm . Lee and McLoughlin (2007) noted that this reality is one where teachers/educators relinquish some control to embrace the

informal leaner-centered pedagogies empowering twenty-first century learners; they went on to state, “these changes are inevitable and unavoidable, given the morphing

nature of higher education.”

Using technology to accommodate students’ different learning styles is not novel. The strength of social media applications is that they offer an assortment of tools

that learners can mix and match to best suit their individual learning styles and increase their academic success (Grover & Stewart, 2009). Further, such technologies

are typically freely accessible, easy to incorporate, and have a minimal learning curve to master. Learning environments can become personalized, and faculty can

enhance their pedagogical techniques by using tools to extend class engagement beyond designated class time and to increase the quality and quantity of participation

in online courses (Grover & Stewart, 2009).

Some faculty members are still reluctant to use their campus learning management systems, and others are frustrated with the limitations and proprietary nature of such

systems (Dalsgaard, 2006). The growth of courses, and even complete programs, being taught online has challenged educators to develop effective delivery methods that

move beyond ‘read and click’ while enhancing the learning of all students. Advocates feel that the wide acceptance of social media sites outside the higher education

arena establishes a congruity easily transferable to community building in e-learning, which has the potential to transform higher education as a whole (Hoffman,

2009). Hoffman (2009) also argued that case studies demonstrate “multiple benefits for using SNS [social networking software], including, retention, socialization,

collaborative learning, student engagement, sense of control and ownership” (p.3), along with a list of other perks for students and instructors.

Use of Social Media in Higher Education Literature

There have been many anecdotal articles published in the last eight to ten years on the use of social media and the incorporation of UGC in both K-12 and higher

education classrooms. More recently, in-depth theoretical discussions and research results from case studies and experimental studies have appeared.

Arguments and Examples Supporting Use

Alexander (2006) introduced a variety of social media tools and explains how they could be used in higher education classes. Yet, he also challenged the community to

look at how higher education faculty currently put forward “a complex, contradictory mix of openness and restriction, public engagement and cloistering” (p. 42). Duffy

and Bruns (2006) detailed the possibilities for using social software tools such as blogs, wikis, and RSS feeds in educational settings, stating that our new ‘social’

and ‘mobile’ reality of delivering educational content to students must match what they will encounter after graduation. They suggested that educational institutions

have an obligation to their students to best prepare them for the future by fostering their collaborative communication competencies (Duffy & Bruns, 2006).

Richardson (2006) examined teacher-specific implementations of web tools to inspire deep student learning and active participation in the knowledge that makes up the

web. His discussion connects these real examples to the pedagogy they support, emphasizing the shifts now happening in education toward mastering new competencies.

These examples include use of open educational content, meaningful knowledge constructions, and the 24/7 learning environment, among others. Mason and Rennie (2008)

advanced the idea that the core element of social networking sites, i.e the incorporation of UGC, has “potentially profound implications for education” (p. 4) because

it permits course design to add value and empower learners. Yet, they warn that new technologies should not lead the design of activities but only be utilized to

support educational outcomes.

Pedagogy and Usefulness

Enough experimentation has taken place in the classroom that studies have now been published investigating pedagogy and actual usefulness of Web 2.0 tools, including

some discussions of outcomes (Grover & Stewart, 2010; Mason & Rennie, 2008). For example, Wheeler, Yeomans, and Wheeler (2008) evaluated collaborative learning by

students who use a wiki to create user-generated content for their learning experience. Despite students’ hesitation to create work in a public setting, or to work as

a group and the limitations of evaluating individual contributions, they still felt the tool held great potential to transform education. They emphasized that the

primary benefit of using the tool is for collaboration or extending engagement outside the classroom and advised teachers to act only as facilitators or moderators in

this environment.

Aijan and Hartshorne (2008) examined faculty adoption of Web 2.0 applications by investigating faculty members’ knowledge and perceptions of the tools. They also

considered actual use factors that influence adoption. Their literature review presented a discussion of pedagogy while highlighting some of the tools’ advantages.

Results indicated that while a majority of faculty members were aware of the pedagogical benefits these tools can offer, a disconnect occurs when it comes to actual

adoption or future plans to incorporate them into their teaching. They determined that faculty attitudes strongly predicted whether or not they actually adopted a new

method. Their recommendations called on administrators to promote the use of new social software , emphasizing their gradual learning curve and congruity with current

practices. Further, they suggest that efforts should be made to build educators’ overall confidence and comfort with new technologies (Aijan & Hartshorne, 2008 ).

In search of actual empirical data from student and faculty use of social technology, Hemmi, Bayne, and Land (2009) conducted in-depth case studies of three different

classroom use occurrences, exploring from a pedagogical perspective how higher education has been implementing these technologies. They concluded that faculty and

students are approaching new tools and methods with some caution. They attributed this to the inherent slow-to-adopt-change nature of academia and its unwillingness to

stray from the traditional models. Despite this, the researchers were encouraged that higher education institutions have begun to recognize social media’s immense

possibilities (Hemmi et al., 2009).

Junco, Heiberger, and Loken (2010) conducted an experimental study to determine how the use of a specific tool, Twitter, has impacted student engagement and affected

student grades. Twitter was used to extend discussion beyond the classroom by having students participate in panel discussions, submit reactions to readings and their

service work observations. Along with their posts they were to react to other students’ tweets. The researchers used two student groups, a control group who didn’t use

Twitter and an experimental group that received training and had assignments that required them to use to tool. Their data demonstrate that students using Twitter “had

a significantly greater increase in engagement than the control group, as well as higher semester grade point averages” (p. 1). The researchers strongly feel these

results are evidence to support the educational usefulness of the tool and social media as a means to reach higher educational outcomes.

The many chapters of Cutting-Edge Social Media Approaches to Business Education (2010) are authored by various educators who detail their experiences with using

Facebook, Second Life, Twitter and other common social media sites in their teaching. Several authors investigate learning styles and the connection between pedagogy

and tool-specific advantages. Wankel (2010), the editor, argues the case in the first chapter that business students will be expected by future employers to be

proficient with new cutting edge technologies for business communication. Individuals displaying these proficiencies are certain to have advantages over students who

haven’t had opportunities to develop these skills. This echoes the findings of Duffy and Bruns (2006).

The European Commission, interested in promoting innovation in higher education, has funded a three year iCamp research project which “ investigated how Web 2.0

technologies can be implemented in higher education settings.” (n.d., p. 6). This has resulted in the free published handbook, How to Use Social Software in Higher

Education. The handbook is aimed at educators who are interested in incorporating social software into the learning process. It takes a constructivist pedagogical

approach offering information about teaching styles and different software tools connected to the learning activities they support. The iCamp Project foresees that use

of these tools can transform learning in higher education.

These studies are just a few from the burgeoning discussion taking place in academia, a discussion which has begun to examine this new paradigm with increased scrutiny

and formality. While most of this literature considers the use of social media in education from a theoretical or educational pedagogical view, the remainder of this

article will provide practical guidance for faculty interested in incorporating social media tools in general, and user-generated content more specifically, into their

teaching. This is a chance to pause and consider some of the implications that arise when moving academic activities to the public sphere.

Key Areas of Consideration for Educators
The numerous books and articles that have already been published by enthusiasts detailing how social media and UGC can be used in classrooms are primarily written by

education reform advocates and early adopters. These authors share realistic examples while trying to demonstrate how these new tools can transform teaching, learning

and education as a whole ( Duffy & Bruns, 2006; Alexander, 2006; Richardson, 2006; Junco, Heiberger & Loken, 2010) . Missing from this dialogue, however, is discussion

of how best to tackle some of the practical, less paradigm-shifting questions about ownership, privacy and security, access, accessibility and compliance, stability of

technology, intellectual property rights, and copyright law.

Ownership and Intellectual Property
A discussion of ownership in academia is synonymous with addressing intellectual property (IP), a term that has become increasing common in the popular media. The

question really is one of ownership and rights: who owns not only the tangible item that is created, but the intellectual concepts, ideas or processes behind the

creative work or property? Dictionary definitions refer to concepts of property rights that extend to ideas, inventions or processes–that is, creative works of the

mind that may not have any tangible physical form (OED, 2010).
The examination of IP rights in the “real” world, however, is rapidly becoming a challenging and active legal area. In higher education IP is usually handled with

specific policies, often negotiated and connected to bargaining contracts that determine who owns the work that gets created by faculty and staff and which detail

agreements regarding inventions that can be trademarked. Student ownership, on the other hand, occupies a gray area. There is no standard way of addressing the

intellectual property rights of student work. Many universities assume ownership of student-generated work, usually those research projects that are co-sponsored by

faculty and are primarily created using university resources.
Before there was the ability to digitally create and collaborate or share work over the Internet, the ownership and use of another’s copyrighted creation was pretty

straightforward. An example of the growing uncertainty is the controversy about the plagiarism detection software Turnitin , which has been challenged by many student

advocates as a breach of their copyrights. These objections escalated into a t least one lawsuit that has since sparked discussions across campuses about students’

rights and, in some cases, influenced institutions’ decisions to end the use of these services altogether (Foster, 2002; Parry, 2009). Increasingly, universities are

respecting students’ IP rights, mainly by recognizing them as copyright holders of the work they create. When using social media tools in the classroom, the strict

definition of original author or owner is blurred. For example, who owns the IP rights to a class-created wiki or blog, or the items developed for an island in Second

Life? As faculty members recognize the possibilities of using these Web 2.0 tools to engage students, they are becoming co-authors/creators alongside their students.

Students begin to see these creations as portfolio work, and desire some ownership of what they’ve created. Further complicating the ownership question is the fact

that these new creations are often hosted on servers and services owned by for-profit companies. Most users of these services are not aware that the providers of these

free tools may claim ownership of the work created and residing on their servers. What is perhaps the most well-known controversy of this nature arose in 2009 when

Facebook changed its terms of service agreement with its users, granting itself the rights to use photos, posts and content that users make available on the system in

any way it desires–even in cases where users have terminated their accounts. Facebook’s explanation was that this change was necessary to maintain cohesion and system

functionality, but the public perception was that Facebook was staking claim to users’ copyrighted materials. The outcry was so great that Facebook returned to their

original policy (Stone & Stelter, 2009; McCarthy, 2009).
The virtual world of Second Life (SL) presents an even more complicated IP rights conundrum. Users in SL are content creators, constructing everything from basic

avatars and clothing to buildings and even islands. The terms of service agreement states that Linden Lab, the owners of SL:

“retains ownership of the account and related data, regardless of intellectual property rights you may have in content you create or otherwise own. You agree that

even though you may retain certain copyright or other intellectual property rights with respect to Content you create while using the Service, you do not own the

account you use to access the Service, nor do you own any data Linden Lab stores on Linden Lab servers (including without limitation any data representing or embodying

any or all of your Content)” (Terms of Service,

While faculty members may understand that having access to another’s work does not make them owners or give them rights to freely use the content as they wish, this

concept may not be so clear for students. Recognizing the ease with which digital content can be copied, remixed, and reused, it is wise to facilitate discussions or

assign readings about ownership and attribution, addressing ethical and legal content use.
Groups of users employing services and tools that involve the development of public spaces or objects are propelling the discussion of ownership, or lack thereof, to

the creative content. Intellectual property rights and ownership questions are at the center of a complex web, overlapped by issues encompassing the use of copyrighted

materials. Stuck in this web are other important concerns that must be considered such as matters of privacy rights; the Family Educational Rights and Privacy Act

(FERPA); security; accessibility; access; compliance with the Americans with Disabilities Act (ADA); and the longevity and stability of these tools and services .
Privacy (FERPA) and Security
Institutions of higher education and teaching faculty have been dealing with FERPA since it was enacted in 1974. Many exceptions and amendments have been added over

the years to address a wide variety of situations where personal information or data can or cannot be released ( U.S. Department of Education, 2004 ). Traditionally,

faculty only considered their obligations under FERPA when dealing with disclosure of student grades and the handling of personal information. However, when digital

communication started to replace analog methods, clarification had to be made about how faculty could even transmit this information (much of this concern has been

handled by securing institutional records systems and prohibiting the transmission of grades via email). Most universities include summaries of FERPA in their student

and faculty handbooks and have data security policies that outline employee obligations and restrictions.
Even though social media tools being used do not collect enough personally identifiable data to threaten FERPA laws in most cases, the issue of student privacy in the

broader context is still one that should be strongly considered. There was once a time when events that happened in a classroom were ephemeral and intangible,

restricted to only the participants present and the extent that their memory would retain them. Using mediated tools that capture discussions and activities in an open

public space fixes these events for digital perpetuity and makes them potentially available to a world audience. Stories about students posting images and comments on

Facebook that have later come back to haunt them when looking for a job, or employees being let go because of comments made in what they thought was a private space,

have made media headlines in the past few years. Even if class-created content is later deleted by the faculty member or kept restricted to only the class

participants, content and comments created online can be stored and archived by anyone with access, which creates the potential for them to resurface later. Will this

public learning space inhibit risk-taking and instead foster a reluctance to share ideas with a broader audience for fear that these things will come back to haunt the

student later? Faculty should consider not only having a discussion about online privacy but also include a statement in their syllabus about proper conduct and

expectations for both students and faculty.
Another twist to the privacy concern is what the hosting sites do with the data they collect on their users. Should faculty ask or require students to use public

systems that gather preference data on users, which the sites then sell to other companies as valuable targeted marketing data? Facebook has repeatedly made news

headlines about privacy issues and access to user profiles. Lately, the concern has been third party applications misusing information without users even knowing that

their information is being made available (Young, 2008). But perhaps this new Google-infused culture renders the privacy issue moot, as Google appears to be the search

engine of choice and has long been mining user emails and search histories without widespread dissent. If nothing else, faculty can use these issues as teaching topics

that aim to enhance students’ media literacy.
Using social media in classroom activities moves discussions and interactions that were once private, happening in a secure classroom, into a public space where

potentially the entire connected world can bear witness. Common sense would dictate that even when an online space is restricted to a specific classroom, it is never

wise to publicly discuss student grades or put forth any critical review or feedback of an individual student’s performance.
Access, Accessibility and Compliance
In the area of access, faculty members need to consider a chosen medium’s ability to accommodate students’ diverse learning needs, which include accessibility as

defined by the Americans with Disabilities Act (ADA). The rights of students with disabilities at the university level are also protected under the Vocational

Rehabilitation Act of 1973 (United States Department of Education (2004) and the Americans with Disabilities Act of 1990 ( U . S . Department of Justice (2009 ).

University faculty members are most familiar with the reasonable accommodation requirement or “appropriate academic adjustment,” as stated in section 504 subpart E of

the Disabilities Act (Jarrow, 1997). It is notable that the law does not go into detail as to what is considered “reasonable,” leaving this up for interpretation.
Again, in an analog world addressing these concerns was much less complicated. Today, with the prevalence of electronic course management systems, library databases

and institutional data systems, ensuring that necessary materials are actually useable and available to every student has become more challenging. Fortunately, the

availability of assistive technology tools to enhance accessibility for a wide range of challenges and disabilities seems to have increased. For instance, screen

readers are no longer expensive software systems relegated to a few computers in the university library. What’s more, free applications that read screen text aloud are

now available.
Online social media sites create an even more challenging environment as they are rich in media, images, and links facilitating complex interactions that use scripting

languages not compatible with accessibility software, such as typical screen readers. In a survey of the five most popular social media sites (Facebook, MySpace,

YouTube, Yahoo, and Bebo), Ability Net, a UK disability charity, found “that, in contrast to their apparent universal appeal, they are effectively ‘locking out’

disabled visitors, the majority of whom can’t even register, let alone participate in the on-line communities they wish to join” (AbilityNet, 2008). Even just creating

an account was found to be nearly impossible as the widely used CAPTCHA image technology ( C ompletely A utomated P ublic T uring Test to Tell C omputers and H umans A

part) is inaccessible to visually impaired, dyslexic, and many others with learning disabilities. Most users have encountered it as the visual verification code of

slated and distorted letters that they must decipher before proceeding with a task. While newer versions of spam software are now employing audio in attempt to address

this dilemma, access issues remain.
The National Federation of the Blind recently filed a federal complaint against Pennsylvania State University on behalf of the blind and visually impaired citing

“pervasive and ongoing discrimination” (Parry, 2010), claiming that the omnipresent use of technology on campus creates a “misery for blind students trying to go about

basic academic business”. This complaint is the first of its kind in that it’s not targeting a specific technology as did the Arizona State University-Kindle case.

This grievance was filed in 2009 by the National Federation of the Blind and the American Council of the Blind against the university for distributing electronic

textbooks that were not accessible to visually impaired users (Beja, 2009) . The complaint against Pennsylvania State University is lodged at systems used by the

entire university: its department websites, course management system, and even the library.
Universities already go to great measures to be inclusive and equitable. Faculty and staff are typically the ones carrying out policies and communicating needs. So

far, fringe use of new social media tools may not have reached a level of saturation to be included in large scale lawsuits; however, faculty need to be diligent and

thoughtful about accessibility and compliance issues when looking to incorporate new and exciting teaching methods.
Stability of Technology
The stability of the technology and the systems professors use for teaching and research is often taken for granted. Unless there is an outage, accessing the network

from anywhere, using technology in the classroom, or teaching with a course management system (CMS) are usually effortless tasks that happen repeatedly throughout the

day without much thought. However, if the network goes down in the middle of a lecture or files that were uploaded to the CMS disappear or are somehow corrupted, the

reliability and stability of these systems quickly become an issue.
Campus systems need to establish support mechanisms: there should always be someone to call, be it the university technology services department or the technology help

desk. However, when faculty members use off-site, in-the-cloud software, the reliability and stability of these systems are all outside the traditional support

structure. New start-up companies (and even some well-established ones) can disappear overnight, can be bought by competitors, or change their use agreements without

notice, all of which jeopardize the users’ content.
The most common stability issue for technology is likely the removal of content by the software web host or system provider because of a Digital Millennium Copyright

Act (DMCA) take-down request wherein copyright holders can initiate removal of material they consider to be infringing upon their copyright. The web host has a limited

time to respond to the request, so typically it will remove the content without investigating the complaint and then send a notice to the user who posted the content,

notifying him/her of the removal. Users can challenge the removal, but it takes time and creates a lot of hassle for users who need to access their content for a

specific time period. The Recording Industry Association of America (RIAA) uses the DMCA take down provision regularly to control the use and remix of their

copyrighted works; most users just comply even if they feel their use of the music was fair, fearing the wrath of this industry Goliath. A growing backlash has been

getting more attention, fueled by the perceived abusive use of take down notices being exploited by those who want to control speech, protect their online

reputation–or worse, limit access to important research and information (Electronic Frontier Foundation, 2003). Over the past few years, the Electronic Frontier

Foundation (EFF) has begun challenging the blatant overuse and even misuse of the take down provision by filing lawsuits in support of affected users (EFF, 2007). With

social media exploding exponentially, these challenges to the thirteen-year-old DMCA law are certain to continue.
Technological stability may not be a large concern for faculty, since their use of systems is often limited to a fixed time period, such as specific semester.

Nonetheless, of the issues raised by DMCA take down provision, specifically intellectual property right and copyright ownership are often the most confusing for

Intellectual Property Rights (meets) Copyright law
Social media by its very nature uses other peoples’ content, as many of the new web software tools are based on the idea of mashups. Mashups utilize user-generated

content and available media or data to create derivative works or supply enriched digital content (, March 9, 2011) . An example of this would be the BBC

news website incorporating Google maps data to enhance their news coverage.
Digital technologies and new ways to use and reuse content are challenging society’s notion of intellectual property and what is a fair use of someone’s copyrighted

work. Probably the first blockbuster case involved the music site Napster, whose service was ultimately shut down (Green, 2001). But that case was only the beginning

of the revolution brought on by digital media and users’ desire to change the paradigm of control. Napster and other similar file sharing services’ weakness is that

they simply shared original, copyrighted files without adding, transforming, commenting upon, or in some way enriching them, as is the idea of mashups. These user

creations can exist, knowingly or not, because of the fair use exception found in the copyright act and because, at the moment, there is no legal precedent to stop

Understanding Copyright Law Limitations and Fair Use

Title 17 of the United States Copyright Act protects authors’ rights to their original expression by providing them an exclusive license, for a limited time (though

not so limited any more), to do the following: reproduce copies of the work, publicly distribute or transmit copies, publicly perform the work, publicly display the

work, and create derivative works based on the original work. Copyright protection cannot be applied to facts, ideas, processes or procedures, concepts, principles,

system or methods of operation, nor discoveries.

The intent of copyright law is twofold: to protect the rights of authors/creators for a limited time and to promote the public good by allowing for use of these

creations. Therefore, built into copyright law were some limitations: it does not control private uses, readings, and performances (section 110); it is limited by the

right of first sale (section 109), thereby allowing reselling of books; and it contains a fair use provision (section 107). Fair Use is a “ judicially created

equitable rule of reason” ( Oakley, 1990, section G, 1, para. 1), a provision of copyright law that permits individuals to use portions of copyrighted works without

obtaining permission. The doctrine includes an non-exhaustive list of uses that could qualify as fair, such as works that are transformative, derivative, works of

parody, commentary, and educational (which includes teaching, scholarship, and research). Rather than listing exact limits of fair use, copyright law provides four

factors for determining a fair use exemption: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit

educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the

effect of the use on the potential market for or value of the copyrighted work. The four factors are weighed against each other; no one factor is determinative in

every case.

Often universities, particularly their libraries, develop some version of a checklist or quota system for determining if a use of copyrighted material qualifies as

fair. These are attempts to assist faculty and librarians in their fair use decisions, but these checklists typically oversimplify the analysis and over-restrict use

by placing false quotas on amounts. Using one chapter of a thirty chapter book is not the same as one chapter of a four chapter book. Overuse of these quotas by

university libraries has contributed to the eroding of fair use along with a propensity to avoid any risk and accept the increasing demand to pay for every use for

fear of a lawsuit.

Educators are typically familiar with copyright law through the fair use exception that allows use of copyrighted materials in the classroom. Most higher education

faculty have some comfort level with interpreting fair use for their classroom activities but are challenged by how to translate this use into their online classrooms

and our new digital online society. Course management systems have placed the power in the hands of faculty to upload, link, and stream pretty much anything they wish

to include in their lessons. If being in a university-sponsored password protected online space that is limited to only the current class has created a fictitious

safety net for using copyrighted materials, taking this class out into the open web–a public space available for the world to view–should spark some serious


Digital technologies have challenged some very basic definitions that we considered axiomatic for a long time. For instance, the idea of ‘copies’ is difficult in the

digital age. When someone shared a copy of a book in the analog world, the original owner no longer had the book, or if she/he did, the copy that was shared was

greatly inferior. Today when a digital file of a book is shared, both people have perfect copies, and when one person forwards that item to a group of friends, now any

recipient of that transaction also has a perfect copy. So this simple act not only challenges the notion of copies (first exclusive protection) but also the concept of

distribution (second exclusive protection). Consider when a mother innocently posts a video of her child singing along to a famous pop singer’s song on YouTube. One

may interpret this as performing, transmitting, broadcasting or even displaying a copyrighted work (fourth and fifth exclusive protection) as argued by the Universal

Music Corp and the artist Prince against Stephanie Lenz (Citizen Media Law Project, 2007 ). Social media and remixing of creative expressions inherently challenges the

third exclusive right of creating derivative works based on the original. All of these activities can take place daily in a modern classroom that incorporates new

media tools.
Pushback and Guidelines
Many industry giants and big business are trying to secure their intellectual property; essentially, claiming that fair use does not apply to digital content or the

Internet-connected social Web 2.0 universe. A growing movement of user watchdog groups, educators, librarians, researcher, scholars, artists, and new technology

innovators are adamantly arguing to the contrary.
One such result of this pushback was the founding of the Creative Commons (CC) community, a 501(c)(3) tax-exempt charitable corporation founded in 2001 with support

from the Center for the Study of the Public Domain at Duke Law School. According to its mission, CC “develops, supports, and stewards legal and technical

infrastructure that maximizes digital creativity, sharing, and innovation” ( Its members work to achieve this through the development

of the Creative Commons licenses . These sets of licenses and tools supply a means for copyright owners to choose the type of use they would like to allow for their

work, while at the same time providing users with content free of copyright restrictions; thus, empowering all groups.
Guidelines for Use
In line with the Creative Commons movement has been the development of Best Practice Codes. These codes, developed by different factions of users, interpret fair use

and establish specific “best practices” for the use of copyrighted material for their discipline or communities. The Center for Social Media at American University’s

School of Communication, in partnership with Washington College of Law, has spearheaded the development of fair use educational tools and best practice codes for a

growing number of communities. These codes are now being recognized as ‘industry’ standards, such as the Code of Best Practices for Fair Use in OpenCourseWare, for

Media Literary Education, for Online Video, for Documentary Filmmakers, for Scholarly Research in Communication (Center for Social Media, 2011). These best practice

codes set precedent for exercising fair use as an “affirmative right that allows copying in specific circumstances versus merely a defense used in cases of copyright

infringement” (Davis, 2002, p. 5). Doing otherwise empowers IP rights’ holders and copyright owners and the restrictive technologies they employ to personally censor

creativity and removes fair use as an option altogether (Davis, 2002).
Fair use can still be applied in the digital world. In many cases the use or reference to another’s creative work by one author/creator can bring unexpected attention

and interest to work that otherwise may have remained forgotten or anonymous. New technologies and social media in some ways make it easier to provide attribution to

the original works that inspired the new creations. Students begrudgingly learn that they need to cite their sources when writing papers. Faculty need to extend

discussions of ethical information use in all forms of scholarly endeavors including media and creative compositions, stressing the concept that just because something

is legal, doesn’t make it ethical. Simple steps, such as always acknowledging sources of content, linking borrowed information and ideas, or creating credit pages can

be made part of the requirements for an assignment. If use is substantial enough, but still within the fair use exception, it is always good ethical practice to extend

courtesy to the original creator by seeking permission with a request that details how the work is being remixed. This is especially true if students plan to retain

the work for their portfolios and will be ‘publishing’ them in some way for potential employers to view. It’s important for students to remember that posting work to

the Internet or even a course management system can be considered publishing and distributing.
Many groups have joined together in challenging the evasive permission culture (Lessig, 2004) in defense of fair use and the ability to retain access to cultural

objects not just for educational purposes but continuing our tradition of “free culture– not free as in free beer but free as in free speech, free markets, free trade,

free enterprise, free will, free elections. A free culture supports and protects creators and innovators” (Lessig, 2004, preface xiv).
Faculty are embracing the use of new and innovative technologies, but this time the technological change isn’t arriving as carefully planned and sanctioned

institutional initiatives but more as a grassroots movement. Adventurous educators see how the new communication and networking tools used by the masses can be adapted

and utilized for teaching purposes. The free, easy-to-use social media that has now permeated so much of daily life brings with it the opportunity to enhance learning,

participation, communication, and engagement; to extend the classroom experience; and/or to enrich the online classroom. Professors incorporating these tools into

their instruction can build their confidence with employing technology. At the same time, students are encouraged to be active participants in teaching and in their

learning which creates a more engaging environment for all constitutes.

Choosing to use social media software and integrate UGC with the intention of enhancing engagement, interaction, and excitement is a very worthwhile effort but one

should ensure that the trade-offs are equitable and ethical. Some suggest that these tools have relevance for implementation at all levels of education; they argue

that such action “will better prepare students for a slew of new illiteracies and competencies in their post-education lives.” (Richardson, 2006, p 5).

Faculty can benefit from sharing experiences with colleagues and developing assignments that engage students in thoughtful discussions of new media’s challenges

relating to privacy, ownership of intellectual property, and use of copyrighted materials which are teaching topics that can enhance students’ media literacy.

Ultimately, the goal of teaching is learning and knowledge creation. If our society is at the point of what Thomas Friedman has described as “connecting all the

knowledge pools in the world together” (2005, p269), then is it imperative that not only our students but also our faculty are competent knowledge consumers

(Richardson, 2006).


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Dalsgaard, C. (2006). Social software: E-Learning beyond learning management systems. European Journal of Open, Distance and E-Learning, 07-12. Retrieved from

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EFF. (2007, July 24). Mom sues universal music for DMCA abuse . Retrieved from EFF webpage

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Foster, A. (2002, May 17). Plagiarism-detection tool creates legal quandary. The Chronicle of Higher Education, Information Technology, A37-A38.

Freedman, C. S. (2008). State of the eNation reports: Social networking sites lock out disabled users. (18 January 2008. Retrieved from AbilityNet website:

Friedman, T. (2005). The world is flat: A brief history of the twenty-first century. New York: Farr Strauss and Giroux.

Green, S. (2001). Reconciling Napster with the Sony decision and recent amendments to copyright law. American Business Law Journal, Fall 39(1), 57-98.

Grodecka, K., Wild, F., & Kieslinger, B. (2008). How to use social software in higher education: A handbook from the iCamp project. Retrieved from webpage

Grover, A., & Stewart, D. W. (2010). Defining interactive social media in an educational context. In C. Wankel & M. Marovich & J. Stanaityte (Eds.), Cutting edge

social media approaches to business education: Teaching with LinkedIN, Facebook, Twitter, Second Life, and Blogs (pp7-38). Charlotte, NC: Information Age Publishing.

Halbert, D. (2009). Mass culture and the culture of the masses: A manifesto for user-generated rights. Vanderbilt Journal of Entertainment and Technology Law, 11(4),


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Kaplan, A. & Haenlein, M. (2010). Users of the world, unite! The challenge and opportunities of social media. Business Horizons. 53, doi:10.1016/j.bushor.2009.09.003

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Instructional Technology & Distance Learning, 4 (10). Retrieved from

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Young, J. R. (2008, February 4). Study raises new privacy concerns about Facebook. The Chronicle of Higher Education, Technology.

Educational Resources
n the last chapter, we discussed the use of the Web as
resource and focus of online course assignments. Instruc­
use of the Web has been greatly enhanced in recent years
by the growth of open educational resources (OER). OERs by
their very nature permit instructors to freely use, adapt, or even
add to their content. However, many other potential materials
that you may want to include in your courses are those gov­
erned by copyright and fair use laws. Finally, instructors who
create their own content may be concerned with the issue of
intellectual property. This chapter deals with these three related
issues of import to the online instructor. Copyright and fair use
and intellectual property are but two sides of the same coin.
These three issues are treated here as follows;
1. Copyright and fair use. Do you have the right to use other
people’s materials in teaching your course?
2. Intellectual property. What happens to the intellectual mater­
ial that you create once you’ve posted it online? Do you still
own it? What can you do if an unauthorized person makes
use of it?
3. Open educational resources (known as OER) are generally
free materials that are available under terms of use that
encourage sharing, reproduction, and, in some cases, even
repurposing by educators. In most cases, while the materials
Teaching Online
are freely reusable, the user is required to attribute the
resource to its original creator.
While there exist international copyright regulations, specif­
ics in copyright law differ from country to country. Here we will
discuss copyright and fair use as well as intellectual property as
it relates to the United States, and touch on possible signifi­
cance for other countries. We are not legal experts on these
matters so our intention is merely to set out some guidelines
that faculty can reasonably follow in approaching these issues.
After discussing copyright, we will then discuss open educa­
tional resources, a truly international movement.
Copyright and fair Use in the United
No matter what country you are in, you need to be aware of the
copyright laws where the material originates. In using materials
you find on the Web, you need to know what material you can
use, under what circumstances you can use it, and when you
are breaking the law.
The simple answer to all of the above is that copyright law, as
it is written, states that if you’re using material that belongs to
others without their permission and the material you’re using
goes beyond “fair use” and is made openly accessible (either on
your public web site or via a DVD you’ve distributed to your
students), then you’re probably breaking the law and thus
vulnerable to a suit by the material’s rightful owner.
Ifyou are an educator, the powers that be [a consortium con­
sisting of representatives of industry, publishing, education,
and other areas in the United States convened to advise Con­
gress on the creation of a new or amended copyright law) have
made a few grudging exceptions. If you are teaching in a class­
room or online, you may make use of materials that you don’t
own, as long as you do not malce them freely available for distri­
bution and the amount you use does not exceed certain fixed
limits. These exceptions have been collected in a document
known as the Fair Use Guidelines for Educational Multimedia
Chapter 8 • Copyright, Intellectual Property, and OERs
which emerged in the mid-1990s. They are “guidelines” rather
than legal code because they did not constitute a formal
amendment to the basic copyright law. Nevertheless, an educa­
tor adhering to the Fair Use Guidelines is likely avoiding the risk
of liability to a suit.
Kimberly Bonner is an expert in intellectual property who
heads up the Center for Intellectual Prope1ty at University of
Maryland University College. We asked her about the most
common misconception that faculty have about fair use and
she replied, “I think many faculty really think that fair use is
automatic for educational purposes and it is not.”
So how do you determine ifwhat you’re using falls within the
fair use criteria? The copyright Jaw itself specifies four overall
determining factors:
1. What is the character of the use? Put simply, is it for commer­
cial or noncommercial purposes? Noncommercial use is
much more permissible. If you are a: teacher at an educa­
tional institution, you will have no problem satisfying this
criterion. But if you are assembling courseware for distribu­
tion-say, via a DVD-you may not qualify for the fair use
exemption because you have copied information that does
not belong to you and made it available outside the confines
ofyour classroom.
2. What is the nature of the work to be used? If the work is in the
public domain-that is, out of copyright or never copyrighted
(created for public use or older than the copyright Jaws)­
then, of course, you’re fine. If the work is copyrighted, the
“nature of the work” may include how original or creative it’s
considered to be. Original or creative work often requires the
permission of the owner. Strictly factual material is Jess likely
to require permission.
3.    How much of the work will you use? Large amounts and large
percentages of the original work do not qualify as fair use.
4.    What effect would the use have on the marlcetfor the original
work? Use that would significantly damage the work’s market
value does not qualify as fair use. This is the key provision for
online educators. If you are teaching using a password­
protected site, to which only students or other invited guests
Teaching Online
may gain access, you probably qualify under this part of the
fair use rules. In essence, your site may be deemed the equiv­
alent of a traditional classroom bounded by four walls. But if
your class is accessible by anyone on the Internet, you are, in
effect, making the work available for anyone who wants it,
and this presumably damages the work’s market value ..
To these four original factors, the consortium that developed
the Fair Use Guidelines for Educational Multimedia added the
following stipulations:
1.    Students may incorporate portions of others’ works into their
multimedia creations and perform and display those crea­
tions for academic assignments.
2.    Faculty may incorporate portions of others’ works into their
multimedia creations
a.    to create multimedia curriculum materials;
b. to teach remote classes where access and total number of
students are limited and where technology makes copying
impossible. (If materials can be copied, they may be made
available over the network for only fifteen days and then
must be placed on reserve for on-site use only.)
3.    Faculty may demonstrate their multimedia creations at pro­
fessional symposia and retain them in their own portfolios.
4.    Time limit on fair use by faculty: two years from first instruc­
tional use of the multimedia work.
5.    Copies limit: Generally only two copies are allowed, but joint
work creators may each have a copy. In an electronic sense, a
copy is a file you have saved on a disk.
6.    Pmiion limits:
a.    motion media (including video and animations): up to 10
percent of the original work or three minutes, whichever is
b. text: up to 10 percent of the original work or 1,000 words,
whichever is Jess;
c.    poems: up to 250 words, but further limited to:
i. three poems or pmiions of poems by one poet, or
Chapter 8 • Copyright, Intellectual Property, and OERs
ii. five poems or portions of poems by different poets from
a single anthology.
7.    Music (including lyrics and music videos): up to 10 percent
of the original work or thirty seconds, whichever is less.
8,    Photos and images: up to five works from one artist or pho­
tographer; up to lO percent or fifteen works, whichever is
less, from a collection.
9.    Database information: up to 10 percent or 2,500 fields or cell
entries, whichever is less.
The Technology, Education, and Copyright Harmonization
(TEACH) Act of 2002 is a copyright amendment that did serve to
broaden the conversation to explicitly include distance educa­
tion and digital creations. But the TEACH Act is complex and is
not something individual instructors can be expected to inter­
pret on their own. In some ways it has confused as much as elu­
cidated the rules for educators and it often addresses issues that
must be handled by institutions as a whole. However, if you are
seeking to use text, video, or audio without paying a fee, you are
probably on solid ground ifyou observe some of the same limits
we have already noted. To sum up:
1111 Limit amount-do not attempt to make available an entire
work (see fair use guidelines above).
1111 Limit time-do not make the work available for an entire
1111 Limit access-make available only to enrolled students in
your class; use a password-protected site such as your course
management system.
Is Anyone Really Watching?
Some readers may find the foregoing fair use guidelines some­
what excessive. After all, you might argue, with so much mater­
ial available on the Web, who could possibly monitor it all
Think of the matter this way: It is just as easy for those who
own material to find it on the Web as it was for you to secure it
Teaching Online
in the first place. Sophisticated search tools now exist, and are
continually being improved upon, for tracking down pirated
material. As the market for distance education grows, so do the
economic incentives for people to protect any material that
rightfully belongs to them.
Thus, you must be especially conscientious about materials
you post on the public Web. If you aren’t, the institution you
work for will no doubt encourage you to revise your behavior,
because it is usually the institution that bears the heaviest lia­
bility in a copyright suit. But you personally are not immune.
ll’nnclnng the l!’liglhltful Owner
Ascertaining the rightful owner of copyrighted material can
sometimes prove quite complex, particularly when ownership
may have changed hands several times since the work was first
There are a number of ways to track down authorship using
the Web. Services such as the Copyright Clearance Center
[ can help with searching out the owner­
ship status of a given piece of material and can often give you
price quotes as well.
Wlhlaft ftc ID«» Rf YciiJI Aren’t Sure Whether YcM
Need Permission
First, we recommend that you consult your institution’s library
to see if they are able to assist you with licensing or securing
permission. They will also be able to tell you what costs, if any,
are associated with licensing. Such costs are not easy to calcu­
late in advance-they can range from inexpensive electronic
rights to a short article or an exorbitant price for one poem.
Once you know what the costs incurred might be, you (and your
institution) can make a choice about whether or not to use par­
ticular material. Your institution may have a specific form that
they want you to use in applying for permission or to enable
them to make that determination for you. If you do not have
access to such a service and you think the work you are using
does not qualify for the fair use exemption you should write the
owner and ask for permission.
Chapter 8 • Copyright, Intellectual Property, and OERs
State who you are, what you plan to do with the material, and
how long you plan to use it/when you plan to remove it from
your course site. Some publishers have their own forms for per­
missions posted on their web sites. But in other cases, you may
A Sample Letter Requesting Permission
The following general template can be can adapted as necessary
when you need to secure permission to use someone else’s work.
In the paragraph where you explain your intentions, be sure to note
the key features of the proposed use, such as who will have
access to the site and how long the material will be made avail­
able. If the material is to be sold as part of a coursepack, you
should indicate that as well.
[Letterhead stationery or return address/email/phone or fax numbers]
[Name and address of addressee]
Dear [title, name]:
I am [describe your position] at [narne of institution]. I would like
your permission to [explain intended use in detail-e.g., reprint,
incorporate into lectures, post in online classroom, distribute via
DVD] the following [insert the full citation to the original work or
attach a copy of the image or graphics if needed]. The material will
be made available to # students as follows [e.g., through
password-protected web site, on DVD] for the expected period of
[time period intended].
Please indicate your approval of this permission by signing the
letter where indicated below and returning it to me as soon as pos­
sible, by mail, by fax, or [by scanned image] via email. Your
signing of this letter will also confirm that you own [or your
company owns] the copyright to the above-described material.
Thank you very much,
[Your name and signature]
[Type name of addressee below signature line]
Teaching Online
need to write the owner directly. (See the box “A Sample Letter
Requesting Permission.”) Keep a copy of all your correspond­
ence, whether by letter or by email. If no one responds to your
request, you can then probably use the material, relatively
secure that you have made a good-faith effort to contact the
author and secure his or her permission.
In most cases-probably about 95 percent of the time-you
will receive permission to use the material without havllig to
pay any fee or royalty. In those rare cases in which you are not
given permission free of charge, you can either pay the fee or
use other material instead.
Rffifli/)M:WRc!!Bi!§.’~ If you are not sure whether or not you
can use someone else’s content, the rule is-when in
doubt, ask.
What about i.ill’lks tatll’id !Embedded Resources?
Linking to someone else’s public web site, whether as part of a
course assignment or as an addition to a page of course notes,
does not contradict the copyright strictures. However, as a
matter of courtesy, it may be advisable to let the owner of a per­
sonal page know that you are linking to the site, particularly if it
is a personal site housed on a hosting service that might incur
additional costs if more than a prescribed number of visitors
“bit” the site. Vety often, when you notify the owner this way,
he or she may return the favor by letting you know when the
URL for the site has changed.
An increasing number of Web 2.0 sites like VoiceThread,
YouTube, and TeacherTube allow for the copying and embed­
ding of code within your course management system, blogs,
PowerPoint, or web page, permitting your students to play the
video or other multimedia from within your own course site. This
is particularly helpful for those whose institutions have blocked
access to the YouTube site or for those who do not want students
to wade through all the other potentially inappropriate or dis­
tracting links surrounding a video. On the other hand, the video
in question is still being hosted on the other source’s external
server, so the instmctor does not need to worry about possible
overload on a university or personal hosting server. Instructions
Chapter 8
Copyright, Intellectual Property, and OERs
for embedding a video and its player from YouTube are supplied
at When the embed code is auto­
matically generated by the external party as is the case with
YouTube, you, the instructor, do not need to write any of your
own code to embed the video, so it is a real boon to instmctors
who do not know how or do not have easy access to support to
create code. Embedding, when it is made freely available in this
manner, may be thought of as a sophisticated way oflinking.
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IJ Fscebcr:k
1~! myYe:.:uhock
~ u.,.·e.Journsl
~ Fre.:web~
-‘SO h:i2hi”‘ ?;:) ; ~tE’2″1’ ~’3″‘”‘”‘ ,.,,::-•;i,;:
hi!=-: .,,,::-i~l”‘-::.9::>.c<:ry c::·-:.;d:c==<:’;;’-S”-IS ~<: c:;·~.,:~”crsrr·
r:S”‘·,:= -,w,,::i’=- ·;,:<h.,,;= t’Z.I’1:;c:S-‘,;rt ~ o: ~<”3″1’~~:-::’1·:;-:,)
;-·c, ·rae··· v.:i~i.+>-,;2:; •:>: ‘1’ c: .:~:.u r c “o:’~B.: t S t,.c ~= 3 c c llt-2li: r ·:,.;;-. ::·Q.·,•;,:~.;;;-~::;~j;;-.:t·:-·i:;.ti>::
Figure 8.1 Auto-generated code for embedding a VoiceThread item
within your web page, blog, or course management system.
YouTube and many other Web 2.0 tools offer this option which allows
your sludents to access the application without leaving the classroom.
Reproduced by permission from VoiceThread.
Teaching Online
It’s one thing to borrow someone else’s work to help teach your
class-you know your intentions are good-but it’s quite
another thing if someone borrows your work. Among instruc­
tors who are leery of using the Web, one persistent fear is that
their intellectual property will be stolen by some enterprising
student, or worse still, by another educator.
This fear is not unfounded. Students do reproduce course
notes and even sell them, often supplementing them with notes
they have written themselves. This practice has been going on
since long before the advent of the Web (surely no one has for­
gotten the dreaded copying machine). But the practice is signif­
icantly easier when lectures and other course materials are
posted online, because all one needs to do is to copy the mater­
ials electronically and save them as a file.
A more sinister scenario involves other educators, or even
for-profit publishers of educational material, “borrowing” your
lectures and using them for their own purposes, either rework­
ing them or reformatting them to suit their own needs. In a
world in which tenured positions are becoming less common­
place and many instructors find themselves teaching for various
universities at one time or another, intellectual theft of this sort
may not be as rare as you suppose.
Let’s look first at your legal rights and then at some practical
steps you can take to protect your work.
The Legal Status of Your Work
Believe it or not, legal ownership of material you create is a very
gray area at most institutions. Most faculty members are under
the impression that the intellectual work they produce or
publish automatically belongs to them. Not so. It is simply the
accepted custom of most universities, particularly those
involved in research, to cede rights to such intellectual property
to their faculty members, because the administrators realize
that work thus produced will bring the institution revenue in
the form of grants. But institutions do not have to cede these
rights. They merely choose to.
Chapter 8
Copyright, Intellectual Property, and OERs
The same has been historically true for course content,
including syllabi, lecture notes, and course outlines. Depart­
ments, however, often retain copies of these materials to make
available to new instructors or TAs who are teaching the course
for the first time. Of course, in this situation the new instructors
may be expected to adapt rather than copy the original syllabus.
A departing instructor is also usually free to take his or her
courseware to a new institution.
Teaching online often means creating original material in the
form of electronic files or web pages enriched with multimedia
elements such as graphics, sound, video, and animations.
Instructors who create such material may assume it belongs to
them, but when a university or other institution is intent on
marketing its courses and programs online, ownership of these
materials may not be quite as clear-cut. From the institution’s
point of view, such material may not bring in revenue in the
form of grants, but it can help create revenue in the form of
increased tuition. Hence the institution may be less willing to
cede rights to the instructor. The institution may consider what
the instructor has created as work-made-for-hire, that is, work
that was done in the context of fulfilling job responsibilities. Or,
the institution may “unbundle” the rights, permitting them­
selves to continue to use the material while allowing the
instructor to use all or a portion of the material at another uni­
versity or in some other educational context.
As Kimberly Bonner notes, faculty,
need to understand the “works made for hire” doctrine in
copyright law that makes the employer the copyright owner
ofa work if the work was done within the scope ofemploy­
ment or pursuant to an independent contractor relation­
ship. And they need to know that course ownership policies
may not be enough to alter a “work made for hire”
It is a good idea, therefore, to find out-in Wliting-your
institution’s policy with respect to online materials you’ve
created to teach your course. If there is no established policy,
come to some agreement with the administrators about your
material. This is especially important if you’re a nontenured
Teaching Online
adjunct or lecturer and expect to use your.courseware at several
different institutions, either online or as part of a blended
course. As Bonner explains, “faculty should either have specific
language in their contracts that suppbrt them retaining owner­
ship in their works or incorporate copyright policies in their
teaching contracts (particularly if the policy permits faculty
retaining ownership rights in course materials).”
If you can’t secure clear ownership rights to your own mater­
ial, you can always copyright the material yourself before
making it available to your institution or class. Although most
faculty members aren’t aware of this, you automatically hold
the copyright of your intellectual property the moment you
commit it to paper or to any fixed medium. If it came to a court
case, however, you would have to prove the date you created
the material. One way to do this is to send yourself a registered
envelope or package with the material inside and then keep the
package unopened. A second way is to submit a claim for copy­
right to the Library of Congress.
As online instruction becomes more lucrative for universities
and private institutions alike, the question of who owns the
rights to material and who benefits from revenues derived from
it will become more and more important, especially since the
percentage of instructors in contingent rather than secure, full­
time permanent positions has also increased.
The field of copyright law and intellectual property is rife
with legal experts. We do not pretend to a special expertise.
What we do suggest is that you tal<e nothing for granted when it
comes to material you have created and that you ma!<e the
effort to learn in advance the specific policies of the institution
you are working for.
ll”ractical Steps for Protecting Your Work
A copyright notice prominently displayed is like a scarecrow in
a field. It will scare away some of the crows, but some will come
pecking all the same. So it pays ·to be both vigilant and
Various instructional materials are pilfered from ordinary
classrooms every day, and the Internet mal<es it even easier to
Chapter 8 • Copyright, Intellectual Property, and OERs
steal material and repurpose it. With a little care, however,
most instructors who post material online can avoid serious
Begin with common sense. Say you have an essay you’ve
been working on. It hasn’t yet been published, but you have
good reason to think it may be published. Meanwhile, you’d like
your class to read it. If you’re fearful that one of your students
may copy it or send it to someone else, then post an abstract or
description of it instead. Or, you may affix a notice that clearly
cautions students that the essay is not for distribution-this is a
milder approach, but surprisingly effective: most students will
be respectful of this and it suggests to all that you are con­
sciously setting up some controls on this content.
There are also some technological strategies you can use to
help ward off potential thieves.
Technological Methods The first, and probably the most
obvious, technological stratagem to reduce theft is to use a
password-protected web site. Most course management
systems possess encryption tools that prevent unwanted vis­
itors from viewing the course. If you aren’t using a course man­
agement system, tools exist that will permit your computer
support personnel to password-protect your web site with
various computer programs. Even if you’re essentially on your
own, with no support, a number of easily accessible programs
will allow you to password-protect your site (refer to the web
sites listed in the Guide to Resources).
There are also some technological methods for protecting
unlawful copying or downloading of your work. Some software
programs permit you to limit the way your work can be copied
by others online. Talce the case of a lecture you have created
using Microsoft Word. If you save this document as an HTML
file or post it to your web site as an attachment, your students
will be able to open it or download it exactly as if they had
copied it from your hard disk. Wbat you might do instead is to
use a program such as Adobe Acrobat. This is the program that
permits you to create the Acrobat file format that you see every­
where on the Web, and it provides options that can help limit
unauthorized use of your material.
Teaching Online
Using Adobe Acrobat
With Adobe Acrobat, you can use any program you normally
would to format your material: Microsoft Word, PowerPoint–­
any program that permits you to print. When your document is
ready, you “print” it in a format known as PDF (Portable Docu­
ment Format). You can then make this PDF file available via
your web site, permitting any student who possesses the ubiq­
uitous Adobe Acrobat Reader to read, download, and even
reprint your file exactly as you originally formatted it without
having to own the software program that created it.
However, if you do not want your students to reprint your
material or save it, Adobe Acrobat permits you to restrict how
the material is used. You can remove the ability to reprint text
and graphics or even to select and copy them once they reach a
student’s home computer. You can restrict printing out the
document so that no printing out is allowed or only in low reso­
lution. You can require a password to open. Similarly, assuming
you are operating according to the fair use guidelines, you can
copy articles or material culled from other sources and “print”
them as PDF files, then limit your students’ rights to repurpose
them by taking advantage of the features just mentioned. (Note:
Adobe Reader is a free program, but Adobe Acrobat is not. If it is
not available on your computer, check to see if your institution
can install it for you. Once Acrobat is installed, the PDF option
should appear as one. of the printing options available in your
print setup (dialog) box or in the “Save As” option.)
Another way to protect your intellectual property is to
convert it into streaming media format, particularly when it
involves the use of multimedia. Streaming media, such as nar­
rated slide shows and recorded audio files, are housed on the
server and streamer to the user. They exist in temporaty
memory on the user’s computer. A particularly clever student
hacker might figure out how to retrieve this material from the
temporary memory cache, but most users will neither want to
nor know how to. The same may be said for the PDF restriction
detailed above-a determined student may be able to evade the
restrictions, but sending out information in this format is like
building a fence around your fields. It will keep most, though
not all, intruders from pillaging your crops.
Chapter 8
Copyright, Intellectual Property, and OERs
©lilecking fll>W !IJinaWitlii~J>rizedl !Uise
Finally, if you are worried that your intellectual prope1ty is being
stolen, or even if you are just sensibly concerned, t1y conducting
an online search every six months or so. Choose a unique sen­
tence or phrase from one ofyour lectures and use a search engine
to search online. If the phrase pops up, and it looks as if it was
borrowed from your notes, drop the author of the offending page
a warning note or query, as the case may demand. Be gracious­
it may often be inadvertent on the part ofthe offender.
The term “open educational resources,” mentioned in Chapters
3 and 7, derives from a 2002 UNESCO forum on open course­
ware for developing countries. Since 2005, the OER community
has grown to encompass organizations and individuals world­
wide who are interested in sharing resources and creating new
digital resources that can be made available to all on the Inter­
net. The definition of OER not only includes the notion that the
content of OER is free for use but also that sharing of knowledge
is actively encouraged. A useful handbook for OER educators is
available at
version_one–the handbook and the Wikieducator site itself are
both examples of OER.
OER content ranges from small learning objects, images,
quizzes, lesson plans, syllabi, or discrete modules to larger col­
lections of modules and entire courses. OER can usually be
freely reused, adapted to new uses through mixing with other
content, and freely distributed in their new form. The terms of
use for OER can vary but most require attribution to the original
creator and are offered free for use by nonprofits and educa­
tional institutions. Look for terms of use on each OER site. For
example, the MIT Opencourseware site clearly sets forth its own
rules as (1) noncommercial, i.e., the content can only be used
by non-profit groups and educators; (2) attribution must be
made to MIT and the professor whose work you are using,
whether the content is used as is or mixed or repurposed; and
Teaching Online
(3) “share-alike”-anything created with their content must be
offered as an OER to others.
They also give explicit guidelines concerning how to affix an
You can find OER content through a number of different
ways. Obviously, you can search your library databases or the
Web for such resources, and while this may turn up articles on
OER rather than the materials themselves, there may be links to
the actual OER as well. There are some well-known sites that
provide collections of OER, such as the OER Commons (http: II, or that have more discipline-specific collec­
tions such as the previously mentioned Chemistry Collective
( (See the Guide to Resources for
more collections of OER.)
By making use of appropriate OER, you are often able to
enhance your course while avoiding the issues and costs associ­
ated with copyrighted material. Another approach to using OER
is to incorporate or adapt the OER with your own materials. For
example, you might add to your own lecture in introductory
physics by using some materials from a lecture by one of the
professors featured on the MIT Opencourseware site. By mixing
OER with your own materials in this way, you may find that you
are able to add diversity of perspectives and approaches to your
own content.
Creative Commons l!.ucense
Do consider whether or not a particular piece you have created is
something you want to protect for whatever reason-e.g., it
involves expected income or because you fear another educator
may reuse it and claim it for their own. If you simply want
acknowledgment and attribution of your work, then especially
for publicly available web sites, blogs, wilds, or other sites where
you may share your work, the Creative Commons license (http:// may be a good approach. When
you sign up for a free license with this organization, you can
decide what limitations you wish to put on what you publish
online-this can range from no restrictions to no modifications
Chapter 8 • Copyright, Intellectual Property, and OERs
License Conditions
Creators choose a set of cond~lons IIleY wish to apply to their work.
You let others copy,
distribute, display, and
perform your copyrighted
wolk- and defivatire
works based upon it-
but only if they give credit
the way you request.
@Share Alike
You allow others to
distribute derivative works
only under a license
identical to Ute license
that g!lVIlms your work
No Derivative
@ Noncommercial @ WorM
You Jet others copy,
distribute, display, and
pelform your woik- and
derivative works based
uptlll it- but for
noncommercial puiJloSes
You let olhers copy,
distribute, display, and
peffonn only verbatim
wpies of your work, nut
derivative works based
upon it.
Figure 8.2 Creative Commons Licensing Conditions, from http:// Image licensed by Creative
or use by commercial entities; the Creative Commons site has a
very helpful series of questions to take you step by step through
this decision. By affixing one of the six main Creative Commons
notices, you can let others know that you are encouraging the
propagation of your ideas, but that you do want credit for origi­
nating those ideas. Deliberately making some portion of your
work available as an OER can actually benefit you in many
ways-you may create a demand for your work that might not
have otherwise transpired, find potential collaborators among
the world of educators, and find yourself quoted, invited to
present at conferences, and other unexpected benefits.
If you want to mix the use of OER materials along with some
non-OER materials that are not covered under fair use, you will
want to request permission from the copyright bolder. The OER
handbook discusses how to handle this situation and provides
a sample letter requesting permission for clearance at OER_Handbook/ educator_version_one/
License/ Copyright_clearance.
Special Issues Related to Free Web 2.0 Sites
Many of the free Web 2.0 sites mentioned in this book and the
many others not explicitly mentioued here may invoice terms
of use that, while granting that what you blog, record, or
Teaching Online
otherwise create using their tools and hosting service remains
your intellectual property, may yet contain provisions that
entitle them to display and reveal your content as part of their
publicity, demonstrations, or other possible uses. ·This is espe­
cially true for any content that you choose to make public, but
may also potentially include your “private” areas. While you
should not overreact to this sort of use (which, in effect, is part
of the bargain, like advertisements, in exchange for free use
and seldom exercised), it is a reminder that you should hesit­
ate to post anything or create content-such as something
incorporating private contact info, personal details, photos,
etc.-that you would feel uncomfortable having revealed to
the world. It is a good idea to make your students aware of the
terms of use for the sites and encourage them to use similar
discretion outside your course management system. There is
also the fact that a Web 2.0 site may be hosted on a server in a
country that does not hold to the same privacy provisions as
those of your own country, so that is yet another reason to
carefully read the terms of use and privacy policy posted on a
() t) (.l () (!
Assuri1111g Academic H1111tegrity amc1111g Ycur
In Chapter 3 we discussed the need to devise assessments in
such a way as to make it more difficult for students to plagiarize
essays and papers. For instructors who suspect that the ele­
gantly worded phrases they suddenly encounter in their stu­
dents’ essays may have been borrowed from something the
students discovered online, a simple search on Google will often
result in the identification of the plagiarized portions.
But again, as students spend more and more time online and
students themselves increasingly engage in production on the
Web, assurance of academic integrity and guarding against pla­
giarism is something that should start well before the work is
produced. Here are some other tips for encouraging academic
integrity when developing an assignment:


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