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Technology, Education, and Copyright Harmonization Act Toolkit designed to help understand copyright law in the realm of online courses, including an explanation and background of TEACH, checklists, guides, vocabulary, and frequently asked questions.

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Welcome to the new home of the original "TEACH Act Toolkit" created in 2003 to facilitate understanding and application of the then new "Technology, Education, and Copyright Harmonization Act (TEACH Act)", passed in 2002. TEACH was intended to update the section of the copyright act (specifically, Section 110(2)) most applicable to online digital course. Thus, TEACH is not a separate or additional copyright law; it simply replaces an already existing section. TEACH, or more accurately, Section 110(2), is triggered whenever the performance or display of a copyrighted work is transmitted. Nowhere in TEACH will you find the phrase "distance education" or "online courses". Nevertheless, it can apply to what we refer to as distance education or online courses because transmission of works is exactly what is occurring. Additionally, referring to 110(2) as "TEACH", even though the act is many years old, is an easy shorthand, similar to using "fair use" for Section 107 and "First Sale" for Section 109.

Thus, any time a performance (music, movies, etc.) or display (image, text, etc.) is transmitted (cable television, over the web), the TEACH exception might be an option for our faculty. The many requirements of TEACH may prevent its use but other solutions may be available, such as fair use or getting permission. To understand the TEACH Act and its requirements, this site is populated with a wealth of resources, including TEACH background and explanations, checklists, guides, vocabulary, and commonly asked questions.

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The LSU Libraries supports the academic mission of the university by fostering teaching, learning, and research. Through its commitment to excellence in collections, services, and spaces, the Libraries serves as an indispensable intellectual resource for the state of Louisiana, and indeed to communities worldwide.

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Provides information on what fair use is and how it applies in the context of distance education.

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What is Fair Use? What Isn't? Read on.

Dawn Thomsen from the Lamp reached out recently to share some resources that can help teachers and students understand Fair Use. We were just discussing this in the Emerging Information Technology course I teach at The College of Westchester, so it really struck a chord.

Here's how Wikipedia introduces Fair Use:

Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. It is one type of limitation and exception to the exclusive rights copyright law grants to the author of a creative work. Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship...

Fair Use and Content Creation

Fair Use can be rather complicated when it comes to creating content that includes excerpts of content created by others. It is by no means a simple black and white concept. The article on the Lamp web site, "is a great introduction and overview of the topic and can help anyone using or referencing others' work.

This video offers another perspective on the vagaries of Fair Use, specific to video content:

Fair Use and Teaching and Learning

This PDF is a great 2 page summary of what you can and cannot do with content you are using for instructional purposes under the terms of Fair Use: http://www.halldavidson.net/copyright_chart.pdf

The Flow Chart below from Lisa Marie Jorgensen is a good tool to assess whether your intended use, or a student's, is valid under the provisions of Fair Use:

Of course, we love it when readers share good resources, so if you know of others that you think help clarify this issue, drop a comment and spread the wealth (of knowledge, that is)!

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Understanding the Complexities of Fair Use, Creatively and In the Classroom

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Dawn Thomsen from the Lamp reached out recently to share some resources that can help teachers and students understand Fair Use. We were just discussing this in the Emerging Information Technology course I teach at The College of Westchester, so it really struck a chord.

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Who owns your lessons if you create them while working for a university?

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Conference on College Composition and Communication

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By Billie J. Jones, Assistant Professor
The School of Writing, Rhetoric, and Technical Communication
James Madison University

At issue
Universities have long known the value of their faculty’s intellectual property, and as a result most outline in detail contractual claim(s) to that intellectual property under the concept of “work made for hire,” particularly that which has been created with substantial use of university resources. Now, as K-12 teachers are beginning to sell their lesson plans and other teaching materials, their districts are coming to realize the value of those materials, and some districts are going to court to lay claim to the proceeds. While the discussion about teachers selling their “lesson plans,” prompted most recently by a November 2009 New York Times article, has been spirited, many of the points made are only tangentially related to the core legal issue, which is whether lesson plans belong to the teachers who created them or the school districts for whom those teachers work.

“The Article” and the subsequent discussion
The New York Times, November 15, 2009, widely reprinted article, “Selling Lessons Online Raises Cash and Questions,” by Winnie Hu, brought widespread public attention to the issue of teachers selling lesson plans (and other teaching materials.) According to the article, sales at online “stores” like We Are Teachers and Teachers Pay Teachers are big business, claiming over 200,000 registered users and nearly one half million dollars in sales during 2008 for Teachers Pay Teachers (TPT) alone. The article goes on to mention individual teachers’ earnings, including TPT’s “top seller, a high school English teacher in California, [who] has made $36,000 in sales” (Hu 2). While this gets at the heart of how much is at stake, in terms of both money and teachers selling rather than sharing their work, it has little to do with the legal question of intellectual property.

Although citing both “legal” and “philosophical” questions, the New York Times article casts the issue as primarily a financial one—one in which teachers are presumably making lots of money—rather than presenting it as an issue dealing with the intricacies of copyright law. At several points the article returns to not only how much money some teachers have made but also how these entrepreneurial teachers spend their proceeds: including in addition to purchasing ”book and  classroom supplies, . . . dinners out, mortgage payments, credit card bills, vacation travel, and even home renovations” (Hu). Blogger Lindsay Robertson likens this focus to the way that convicted financial swindler Bernard Madoff’s extravagances have been detailed by the media (“The Times Asks”). If selling lesson plans represents a copyright violation, then the use of proceeds shouldn’t matter—illegal is illegal. However, neither should it matter if lesson plans are the intellectual property of the teachers because the proceeds, like the lesson plans, belong to the teacher to do with as he or she pleases.

In some cases, the courts have ruled in favor of school districts. The 2004 ruling from a federal appellate court in New York held that “‘tests, quizzes, homework problems, and other teaching materials’ were works made for hire owned by the district and that the ‘academic tradition’ of granting authors ownership of their own scholarly work cannot be applied to materials not explicitly intended for publication” (Walker). Consequently with this case in mind, in response to The New York Times article, the National Education Association (NEA), citing legal counsel from their office of General Counsel, wisely warns, “So if you want to sell your lesson plans online, make sure you actually own them” (Walker).

Bloggers Speak
While the question is a legal one: whether lesson plans are the intellectual property of the teacher who created them or they belong to the district as part of “work made for hire,” some of the article reprints and many of the resulting blog discussions ask the question, “Should teachers sell their lesson plans.” The reasons for using other teachers’ lesson plans are readily apparent: these are “class-tested lessons” (Hu), which prevent teachers from having to reinvent the wheel (Jacobs); and at times can serve to fill in knowledge gaps. Some educators will argue for creating one’s own lesson plans as an important intellectual enterprise; however, for many online discussion participants, both in and outside education, it seems only fair that teachers, who are frequently presumed to be underpaid, be able to sell what is believed to be their own intellectual property.

Other seemingly sensible considerations, while not necessarily germane to the legal question, are competing claims that selling lesson plans either serves to further professionalize teaching by placing monetary value on teachers’ lesson plans, or that it serves to cheapen the profession, and put at risk a “culture of sharing” (Wojcecki) among teachers. Citing New York University professor, Joseph McDonald, the New York Times article seems to side with the “cheapening” position by writing “online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans” (Hu). McDonald continues, “‘Teachers swapping ideas with one another, that’s a great thing, . . . [b]ut somebody asking 75 minutes for a word puzzle reduces the power of the learning community and is ultimately destructive to the profession’” (Hu). In an interesting twist, one blogger, Mike Masnick, implies that by teachers seeing value in “selling” lesson plans they might see more value in sharing them freely online. Masnick writes, “In doing that, you can get better feedback and open a nice discussion among other teachers to share what they all have learned and create a better overall lesson plan that helps everyone out (especially the students).”

In short, while bloggers are quite opinionated on the ethics of selling lesson plans, few really deal with the legal question at the crux of this issue.

Possible Solutions
“NEA believes that staff should own the copyright to the materials they created for use in the classroom and supports amending the Copyright Act of 1976 to recognize a ‘teachers exemption’ to the ‘works made for hire’ doctrine” (Walker). While working to revise the Copyright Act of 1976 is a good idea, a more immediate solution would be to work through the K-12 districts’ collective bargaining agents to know the districts’ position: if the teacher’s district has an articulated IP agreement, whether it seems “fair” or not, that is the “law.” If the district does not have an IP agreement, according to the Copyright Law of 1976, a teacher selling lesson plans might be met with legal action. Here is probably the best advice, which comes from a blogging teacher, “Work within the system and work to revise the Copyright Law of 1976.”

Conclusions
As with so many other product/processes fostered by, or flourishing, in the digital age, some districts (and teachers) have been caught off guard by the opportunity for sharing—and selling—teaching materials. Teachers have likely presumed that their lesson plans were theirs, and districts likely have not bothered to prove otherwise—until money became involved. However, as teachers have begun to demonstrate that there is monetary value in their lesson plans, some districts have suddenly become more interested in the potential proceeds. Quoting deputy director of the New York State Council of School Superintendents, Robert N. Lowry, the New York Times article claims that it is a resource issue for school districts: “‘To the extent that school district resources are used, then I think it’s fair to ask whether the district should share in the proceeds’” (Hu). Because school districts are interested, teachers need to become proactive in pushing to establish clear intellectual property agreements based on the academic tradition enjoyed by many college and university faculty. And for those of us who may not work in K-12 districts but have ties to them through English Education programs, National Writing Project site work, and other cooperative relationships between K-12 and post-secondary faculty we should support them in their efforts.

Works Cited

Hu, Winnie. “Selling Lessons Online Raises Cash and Questions.” New York Times 15  Nov. 2009. Web. 10 Mar. 2010

Jacobs, Joanne. “Teachers Sell Lesson Plans.” Free Thinking and Linking on Education by Joanne Jacobs. 15 Nov. 2009. Web. 10 Mar. 2010.

Masnick, Mike. “Another Battle: Can Teachers Sell Lesson Plans.” TechDirt. 15 Dec. 2009. Web. 10 Mar. 2010.

“The Times Asks: Should Teachers Sell Lesson Plans?” NYmag.com. 14 Nov. 2009. Web. 10 Mar. 2010.

The United States Copyright Office. “Copyright Basics.” Web. 10 Mar. 2010.

Walker, Tim. “Who Owns Your Work? Probably Not You.” NEA National Education
Association. Web. 10 Mar. 2010.

Wojcicki, Esther. “Should Teachers Be Selling Lesson Plans?” Huffington Post, 19 Nov. 2009. Web. 10 Mar. 2010.

Intellectual Property Reports Main Page

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“Stake Your Claim: What’s at Stake in the Ownership of Lesson Plans?” - Conference on College Composition and Communication

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By Billie J. Jones, Assistant Professor The School of Writing, Rhetoric, and Technical Communication James Madison University At issueUniversities have long known the value of their faculty’s intellectual property, and as a result most outline in detail contractual claim(s) to that intellectual pr…

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Frequently asked questions on web etiquette, including freely sharing links.

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© Copyright 1996 to the present, Oppedahl Patent Law Firm LLC.
Disclaimer: This is not legal advice. Click for information on the purpose of this page.

Here are some frequently asked questions relating to the World Wide Web. We welcome suggestions as to topics which should be added to this FAQ; send them to the Webmaster. You can also see information on how to contact Oppedahl Patent Law Firm LLC.

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Last revised July 19, 2000.

The Internet is the sort of place where it is extraordinarily easy to copy things, although it must not be forgotten that ease of copying did not start with the Internet. The cassette recorder made it easy to copy record albums. The photocopier made it easy to copy printed works. The videocassette recorder made it easy to copy movies. Floppy disks made it easy to copy computer software. In any of these media, the fact that something is physically easy to copy something does not mean that it is legal to copy it, or morally acceptable to copy it.

Absence of a copyright notice does not mean it is okay to copy something. Under US copyright law, for example, any original work fixed in a tangible medium is automatically protected by copyright regardless of whether any copyright formalities are done. Under the Berne Convention the absence of a copyright notice does not mean that a work is not protected by copyright.

Clearly one way to solve the problem is the simple step of obtaining the permission of the copyright owner. Yet another way is to confine one's copying to items that are in the public domain, for example because they were created hundreds of years ago.

Obtaining permission is a more difficult task than one might think. Suppose you see a web site that contains something you wish to copy, and suppose you obtain permission from the webmaster of that site to copy it. Does this mean you may post it on your web site without fear of liability? The answer is no, unless it happens that the webmaster is in fact the owner of all rights in the work you wish to copy. Can you be sure the work was not copied (in an unauthorized manner) from someplace else? If not, then permission from the webmaster does not put you in the clear.

The legal system does, however, permit some kinds of copying if it is done without the permission of the copyright owner. Under US law, for example, even if the copyright owner has not given permission, it is still okay to copy something so long as the copying falls within what is called "fair use". Regrettably for those who are eager to copy things, it is not easy to say for sure what is or is not fair use. Legal factors that are taken into account include: the portion of a work being copied (copying a small portion is more likely to be fair use than copying a large portion); the effect of the copying on the market for the item being copied (if the copying activity makes people less likely to buy the item, then the copying is unlikely to be fair use); and the use to which the copied matter is put (quoting for use in literary criticism or for educational purposes is more likely to be fair use than some other uses).

If you see something on the Web and are tempted to copy it, why not just put in a link to it? For example, Internic has a policy according to which domain names are registered, and the policies are posted on Internic's web site. If I am tempted to copy the policy into my web site, why not just put in a link to the place where the policy may be found?

It is clear that the law will evolve in this area. Perhaps after some years of experience with the Web, courts will decide some cases that will provide guidance as to what is fair use and what is not.

No discussion of copyright and the Web would be complete without at least a mention of the notion of "implied license". For example, when I use my web browser to view a site, I am necessarily copying information from that site to the screen of my computer. Many web browsers have "cache" capabilities, in which case I am also necessarily copying the information into the cache as well. Most browsers have the capability to print what is on the screen, so if I print it I am automatically making a copy of it on paper.

As years go on the courts will develop the notion of implied license in connection with the Web, but it is clear that there is some sort of implied license that is automatically granted by anyone who sets up a web site and makes it open to the public. The implied license surely includes those things we think of as "normal" web activity -- viewing web pages, clicking on links, seeing the web text on the computer screen. What must not be forgotten, though, is that such an implied license is by no means a grant that permits members of the public to do whatever they may please with the material found on a web site. To draw analogies, the person who publishes a book is not granting to the public the right (via implied license) to photocopy the entirety of the book and to sell the copies. The musician who releases a compact disk is not granting an implied license to set up a facility for copying the CD's and selling the copies.

Common sense suggests that if a webmaster has placed a copyright notice so that it is seen by visitors to a web site, then the webmaster probably is trying to communicate to the public that the contents of the site are not to be freely copied in all ways. Of course, as mentioned above, the absence of a copyright notice does not mean a site is not protected by copyright.

As will be appreciated from the above discussion it is impossible, of course, to answer the "may I copy this?" question in general. If you care about copying some particular item you should consult competent counsel for advice.

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The short answer is "no". While it is physically and technically easy to scan images out of books and magazines, and to place computer-readable (GIF and JPG) copies in one's web site, the fact that it is physically and technically easy does not make it legal or moral. See the discussion above regarding copying works of others into one's web site.

The safest course of action is to obtain permission from the copyright owner before posting a scanned image into your web site.

Suppose you take a photograph yourself -- can you freely scan it and put it on your web site? Even this sort of photograph can cause trouble. If it is a photograph of someone else, it is safest if you obtain a "model release" from that person releasing you from liability for use of the photograph.

From the above discussion it should be clear that if you really care about this you should seek advice of competent counsel.

Return to the Oppedahl Patent Law Firm LLC Patent Law home page.

Before the Web came along, the only way a publisher could make use of images from others was by physically copying the images into the work being published. The above discussions regarding the copying of text or images address such copying. But the Web allows a new and quite interesting way of using the images of others, namely the "IMG" hypertext reference. It is physically and technically easy to include an IMG reference in your web site, giving a URL (address) located on somebody else's web site.

The use of an IMG reference to somebody else's web site is intriguing. Suppose your web site is on a machine in which you are charged "per megabyte" for its use by visitors. Then when a visitor to your web site views one of your pages, and if the image on your page is an IMG reference pointing to somebody else's web site, the visitor's browser will obtain the image from that web site. It won't run up your bill.

Or suppose your web site is on a machine that has only a slow (narrow bandwidth) link to the Internet. Then if a visitor to your web site views a page of yours that contains an IMG reference to some other web site, the visitor's retrieval of the image won't slow down your link. It will slow down the link of that other web site instead.

There are practical reasons why you might not wish to use IMG links to images on the web sites of others. The image might be changed without your knowing it, leading to an unpredictable result for visitors to your web site. The image might be deleted from its web site, leaving a gaping hole in your web page.

But in addition to practical reasons why you might not wish to use IMG links to the web sites of others, there are legal reasons, and that is the purpose of this discussion.

Consider one case that really happened. A fellow noticed that two of his favorite cartoon comic strips were posted daily on a web site hosted by the distributor of the strips. He looked closely at the distributor's web page and determined the IMG URL addresses containing the actual strips. He then made up his own web page saying something like "here are my two favorite comic strips" in a header, followed by the two IMG references. A visitor to his web page would see the header and the two strips.

The next thing that happened was, of course, that lawyers got into the picture. This fellow got a letter saying that he was violating the distributor's copyrights by his placement of the comic strips onto his page. He posted an article in a usenet group asking for comments about the letter.

One commenter said that the distributor's conduct in making its strips available as image files on the Internet amounted to placing them in the public domain, so that anybody who wished could do anything they please with the images. Common sense suggests that this cannot be so; the publisher of a book, in a world in which there are photocopiers, is not giving permission to the world to make copies of the book.

One commenter pointed out that it is technologically possible to reduce unauthorized IMG references, for example by programming the server so that it will provide the requested image file only if the previously accessed page was the distributor's page that might normally contain the image. Such an approach has several drawbacks, chief among them that it only works if the browsing client being used by the visitor happens to provide what is called a "referer" header; not all do this. Another drawback of this approach is that it makes every image request take longer.

The way this particular story ended was that the fellow chose to delete the IMG references entirely, and to use instead more commonplace HREF references so that a visitor to his site could click on the HREF references and reach the distributor's web pages. As a result, we will never know what would have happened if the case had been decided in court.

Clearly the safest course is to avoid the use of IMG references except in the special case where permission has been obtained from the owner of the site having the image file.

Return to the Oppedahl Patent Law Firm LLC Patent Law home page.

This is a question that has led to heated discussion in various Internet discussion groups in recent months. As will become clear, however, most of the disputes turn out to be semantic; once the definitions of certain terms are agreed upon most of the disputes disappear.

The question seems easy enough to state: is there any legal or ethical impediment to setting up a link to someone else's web site?

A first difficulty comes if one succumbs to the temptation to rephrase the question as "is a URL copyrightable?" The person who phrases the question this way triumphantly states that the answer is "no" and thus that anyone who wishes may place any URL into any web site without having to answer to anyone else. A URL is rather like a telephone number or a street address. Arguably it is no more protectable by copyright than a telephone number, due to its primarily functional quality. So indeed the answer to the question "is a URL copyrightable?" is "no". But the world is filled with legal constraints on behavior in addition to those that come from the copyright laws. If you post a sign saying "call this telephone number to reach a chronic liar", then unless the person at that telephone number is indeed a chronic liar, you will be subject to legal liability for libel. And it will be no defense at all that the telephone number was uncopyrightable.

Having discerned that the question "is a URL copyrightable?" is irrelevant, how can we arrive at an answer to the original question? An important step is to figure out what kind of link we are talking about. The previous section discusses a somewhat esoteric kind of link, the so-called IMG link. For the reasons discussed in that section, it seems prudent never to make an IMG link to someone's web site without getting permission first.

But the fact is that if you were to study several hundreds web sites, you would find that the links from one web site to another are virtually all so-called HREF links, and that virtually none of them are IMG links. An HREF link is the kind we are all accustomed to. It is a region on the screen which, when selected by the visitor, causes the present screen to be erased and causes an entirely new screen to be loaded. The words "previous section" in the previous paragraph are an HREF link -- they cause the screen to be loaded anew with the text of the previous section.

So now for clarity let us redefine the question as "may I freely set up HREF links in my web site, to the web sites of others?" As will be clear in a moment, the short answer to that question is "yes". (Except in the case of framing, discussed below.)

The general rule proposed and set forth here, that one may freely set up non-framed HREF links to the web sites of others, is a rather reassuring rule since it happens to comport well with common practice and with common sense. The designers of the World Wide Web intended that it would be precisely that -- a web. One of the hopes and goals of the designers was that after the passage of some years, a meaningful fraction of the sum total of human knowledge would be on the Web, and that it would be fully cross-linked. The idea was that while you might not find the answer to your question on the first web page you encountered, after a few rodent movements you would find the answer, as one web page led you to another, and another, eventually finding your answer.

Such a result -- a web of knowledge -- is only possible if people feel free to set up any and all HREF links that might come to mind. A person who steadfastly objects to any and all HREF links to his or her web site is missing the point of the World Wide Web.

Having said this, it is important to acknowledge that the proposed rule cannot be taken as a justification for setting up all imaginable links. A few fact patterns will illustrate.

A couple of months after our firm opened this web site to the public, we happened upon a web site in Massachusetts that had a link to the place in our web site where the most recent article of our firm newsletter appeared. The Massachusetts web site explained that its purpose was to provide web capability to those who could not afford it. As an example, the site invited readers to look at our newsletter. The clear message was that our law firm could not afford its own web site, and that this Massachusetts site was kindly providing a way for our firm newsletter to be seen by the public. We asked the site operator to delete any mention of anything in our web site, and he complied.

Suppose someone were to set up a link to our web site, saying "click here to reach a web site of chronic liars". Assuming that our firm is not a bunch of chronic liars, then the link libels our firm. A court would not hesitate to order the party setting up the link to delete it.

Suppose someone were to set up a link to our web site, saying "See how prolific we are? We wrote all this!" The result would be someone taking credit for the work of others; stating it differently, they would be passing off our work as theirs. In the US, this would probably give rise to liability under the Lanham Act.

Framing. More recently a change in the capabilities of commonly used browsers has given rise to a way in which HREF links can lead to disputes. The new capability is that of "frames". A web author can cause a page to be divided into "frames", each of which can receive an HTML-constructed window of information. On most web sites that use "frames", the web designer provides all the content in each of the frames. Typically a small frame to the left is used as a menu, and a large frame in the center and right of the screen contains the main body of text, all of which originates from the same web site.

The controversial sites using "frames" are the sites that place advertising or editorial content in small frames around the edge of the screen, and that set up the main frame, in the middle of the screen, to contain HTML text from some other web site. In one site that recently drew controversy, the main screen contained content from MSN and from other news sources, while a frame across the bottom contained a banner advertisement.

This sort of frame-linking can lead and has led to disputes. The content provider whose content is in a middle frame might find itself juxtaposed with advertisements for products or services which it opposes. A conservative content provider might find itself juxtaposed with a liberal advertisement, or vice versa. There is also the danger that a web visitor might be misled as to the origin of the content in the middle frame, thus possibly giving rise to a claim under the Lanham Act (part of the US federal trademark law). It might appear that the web operator is passing off someone else's content as their own. And in any event the web operator could be deriving advertising revenue from the effort of others.

This article suggests that one should do "frame" links to the web sites of others only after obtaining permission to do so.

But again let us try to keep reality in view. The vast majority of HREF links on the Web are not libelous and do not pass off one's work as another's. Most HREF links are quite clear to the visitor, who has no difficulty perceiving that by clicking on a colored line of text, she is going to a different web site. Such a user is also aware that by clicking the "back" button she can return whence she came. Most of these links give rise to no legal liability at all.

Even if there is no legal requirement that the person setting up an HREF link (at least, a non-libelous, non-misleading, non-framed link) obtain permission from the owner of the site linked to, is there at least a moral requirement? Isn't it somehow "good form" to contact a webmaster to say that an HREF link is proposed or has been set up? To this the answer we offer is this: If you are quite confident that you are not doing anything wrong in setting up a non-framed HREF link, then you probably are not doing anything wrong. Millions of HREF links have been set up in the World Wide Web, and the sky has not fallen and common sense has prevailed. Nonetheless, if you have any misgiving or doubt about a particular link, then the ethical thing to do is to write to the webmaster and ask if there is any objection. This will give the webmaster an opportunity to view the page containing the link, and to consider whether there is any reason to object to it.

A couple of additional examples may help to illustrate the common-sense aspects of this proposed rule.

Suppose that someone has set up a web site, and has not publicized it in any way. Suppose further that there is no choice but to make the site public, so as to permit testing of the site by means of visits from other countries. Then the person who stumbles on the URL for this site should, as a courtesy, ask if there is any reason not to link to the site. Setting up a link to the site might interfere with the testing, for example.

One Internet discussion group about a year ago contained a posting from a fellow who operated a web site for a nonprofit organization relating to some particular educational needs. On his site, he had laboriously compiled federal laws relating to the subject of the web site; the laws were contained in a series of sub-pages. What prompted his posting was that another site (operated, if I recall correctly, by a competing non-profit organization) had set up HREF links to the sub-pages in such a way that this fellow's effort would go unrecognized. The inattentive visitor might not even notice having passed from one web site to the next.

This fellow wondered what his options were? Could he compel them to drop their links to his sub-pages?

The thing is, it wasn't exactly traditional passing off. The site never exactly said they had compiled these laws, for example, but merely had a link to the laws as provided on these sub-pages.

Quite a few participants in this Internet discussion group had no difficulty figuring out the right answer. This fellow should simply plaster the name of his non-profit organization all over the sub-pages. And at the end of each of his sub-pages, he should put in a link to his own main page. The result is that now the competing organization is directing its visitors to his own web site.

Linking to something other than a home page. There are some webmasters who say that they don't want people linking to anything but their home page. Webmasters who say this might be motivated by any of several concerns:

the webmaster might want to be able to change around the internal structure of the web site at will, thus perhaps denying responsibility for the trouble that is caused to others when the change causes links to break

the webmaster may feel strongly that a visitor to a sub-page ought to be forced to read the contents of the home page first.

The view suggested here is that a webmaster should be prepared for the possibility that members of the public may set up bookmarks to subpages, and that other HTML authors may set up links to subpages. Since this sort of bookmarking and linking can and will happen, the webmaster should be courteous to those visitors and HTML authors. The webmaster, upon moving a page, should have the courtesy to supply a "forwarding" page that lets the visitor know the new page URL. The webmaster should lay out each page with the expectation that bookmarks and links will be made to any and all possible locations within each page and sub-page. (On our Oppedahl Patent Law Firm LLC site we provide our copyright notice and disclaimer on each page and sub-page for this reason, and each page and sub-page has a link that returns to the top of the page or to the home page, again for this reason.)

In general, of course, it is desirable for one's site to be the subject of links from other sites. Most people who create web sites hope that lots of people will visit, and links from other sites promote this goal. Our web site, for example, is the subject of well over a hundred links, as shown in our page entitled Sites that Cite our Site. And our site is on the reading list for over a dozen college and university courses.

See also Brad Templeton's thoughtful essay Linking Rights.

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The first question would be, why do you care? Does the link cast you or your site or your organization in a bad light? Does it lead to a situation where someone else is taking credit for your work? For these or other reasons, as discussed in the previous section, you may have a legitimate gripe. Before you spend money on lawyers, though, it is suggested that you try resolving the problem by direct communciation. Send an email or a paper letter explaining what you want done. Then if you must, consider retaining counsel, preferably counsel who are familiar with the Internet as well as with intellectual property.

If the link is an IMG (image) reference, consider changing the URL of your image, and put some nuisance image in the place of the original URL for the image. That should discourage people from using your image without your permission.

But generally unless there is some special reason to the contrary, you should be pleased if someone sets up a regular (non-framed HREF) link to your web site.

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There are a number of steps which the operator of a web site may take to attempt to minimize the extent to which others take things from it. The simplest is not to post on the web site. Another is to use the access controls built into the web server to limit the range of IP addresses that are permitted to enter the site. Still another is to set up password protection, so that only certain persons are permitted access to your site.

As will be appreciated, however, such suggestions would be of no help to most web site operators. Most web site operators want their web sites to be available and open to the world at large. Thus we can recommend some other steps that may dissuade others from taking things from you. These steps include: filing copyright registrations, placing copyright notices and related notices on your web site, obtaining trademark registrations, placing trademark notices on your web site, and seeking patent protection for whatever there may be in your web site that is patentable.

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In general terms, you obtain a domain name by making application to a domain name registration authority. For example, to obtain a domain name that ends in .com or .org or .edu, you make application to an ICANN-approved registrar. ICANN by no means handles all domain names, however; domain names that end with two-letter country codes are administered by other authorities.

Prior to making application to the registration authority, you must find someone who operates a domain name server (DNS), who will agree to provide domain name service for your domain name. In addition, assuming you plan to use your domain name for email, you need to find someone who operates a mail exchanger (MX), who will agree to provide email service for your domain name. Finally, assuming you plan to use your domain name for a web site, you need to find someone who offers an HTTP server, who will agree to provide equipment hosting your web site. Often it is convenient to purchase all three services from the same internet service provider, but nothing about how the internet works requires that you do so. At Oppedahl Patent Law Firm LLC, for example, we operate our own DNS and email and web servers.

Having obtained at least your DNS service and having tested it (see a description of this process in an article in the New York Law Journal) then you may submit an application to the registration authority. Once the domain name is granted to you, then you should make careful note of the due dates (if any) for payment of maintenance fees (see a discussion of this in another article in the New York Law Journal).

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The protective steps to take to keep from losing your domain name differ depending on which organization administers your domain name. If your domain name ends, for example, in .com or .org or .edu, then what matters to you are the policies of ICANN. You should study them carefully. Among other things, it is wise to obtain a trademark registration for the domain name immediately if one has not already done so. You should check your Whois record to be sure that your registration authority has correctly listed who owns your domain name (on rare occasions an unscrupulous internet service provider will list itself as the owner). You should also check the record to be sure it lists up-to-date postal, email, and telephone contact information for you. You may wish to subscribe to a monitoring service such as http://DomainSiren.com. Finally, if your registration authority charges maintenance fees, then you should make note of when your maintenance fees are due, and make inquiries if for some reason you do not receive reminders from your registration authority. See also our discussion of Considerations for Domain Name Owners.

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An indispensable resource on the Web are the search engines such as Google, Altavista, Lycos, Yahoo, and Infoseek. These engines search the World Wide Web, reading one web page after another and constructing concordances permitting later retrieval of the URLs of web sites containing words of interest. It has been suggested by some that this concordance construction, which necessarily involves copying information found in the web sites, might violate the copyright rights of the web site owners.

It is not possible, of course, to state as a general rule whether such sites engage in activity that gives rise to copyright liability, since each engine is programmed differently and the retrieved information is stored differently in each site. And in any event there have been no court decisions on this topic. But it is quite easy to imagine a court concluding that mere concordance extraction, without more, would be "fair use" or would fall within the implied license that any web site operator grants to its visitors.

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MIDI, WAV and MP3 files are files which, when played back through appropriate software and hardware, reproduce sounds, music, or voices. It is commonplace for the designer of a web page to include not only image (IMG) files to provide images, but also to include MIDI or WAV files to provide audio accompaniment for the page. A WAV or MP3 file can reproduce any audio information (e.g. Homer Simpson saying "Doh", or the entirety of a popular song as heard on the radio or on a compact disk), while MIDI files only reproduce that which can be played on a keyboard. A WAV file that is ten seconds long when played back may take ten times longer to download, while a MIDI file that plays for five minutes may require only ten seconds to download. For this reason MIDI files are increasingly popular on web sites, since they don't take very long to load. An MP3 file that corresponds to a WAV file will take less time to download than the WAV file, but when played back will offer sound quality comparable to that of the WAV file. For this reason MP3 files are starting to be popular.

A MIDI file is created by playing music on a keyboard that generates MIDI data indicative of the keys that were pressed (or would be pressed; some MIDI files are created by means of editors rather than keyboards). The keyboardist may be playing music that he or she composed, or may be playing music that was composed by someone else, or may be playing music that is in the public domain (e.g. music that was composed and performed hundreds of years ago). A WAV or MP3 file is generally created by playing back some other audio sound source, such as a tape recording, into a sound card that transforms the audio input into a digitally stored file.

The question naturally arises whether any of the following violate the copyright laws: (a) creating a MIDI , WAV or MP3 file; (b) making a MIDI, WAV or MP3 file available on a web site; or (c) replaying a MIDI, WAV or MP3 file by using a browser to view a web page, or by using an MP3 player.

The answers turn on (1) what is in the MIDI, WAV or MP3 file; and (2) what country you are in. This discussion focuses on the law in the United States, and while many other countries have similar laws, there are differences from country to country.

Consider a MIDI file containing a Chopin Nocturne. Someone played the nocturne on a MIDI keyboard so that it could be recorded into a MIDI file. Let's call that person Albert (A). Albert places the file on Albert's web page. This is not a copyright violation because the nocturne, dating from a century ago, saw its copyright term expire many years ago. Let's suppose Paul, a member of the public, visits Albert's site and thereby plays the MIDI file. This is not a copyright violation because Albert implicitly gave Paul permission to do so by placing the file on the web site.

Now suppose Brad visits Albert's page, plays the MIDI file, and likes it. Brad makes a copy of the MIDI file and places it on Brad's web site so that visitors can hear it when they visit Brad's web site. This is likely to be a copyright violation (at least in the US), violating rights of Albert since Albert has rights in the performance recording.

Consider a MIDI file which is a rendition of a best-selling popular song (e.g. a song by Billy Joel). The file, if prepared without permission of Mr. Joel, is likely to be an unauthorized derivative work, giving rise to liability under the copyright laws.

Consider a WAV or MP3 file containing the entirety of a best-selling musical compact disk. If this file is placed on a web site without the permission of the owner of the rights in the compact disk, then the web site operator is likely to be liable under the copyright laws. A visitor to the site who retains a copy of the file is also likely to be liable under the copyright laws. The same would apply to a WAV or MP3 file that is a copy of a movie or television sound track.

It is possible to spend enormous amounts of time and energy developing other fact patterns. What if the MP3 file contains only a few seconds from a song that is five minutes long? What if the WAV file contains only a few seconds from a television theme song rather than the entirety of the theme song? What if the MIDI file contains only a few bars of a long composition? What if the performer is performing purely for educational purposes, or non-profit purposes? What if the only visitors to the web sites are students? What if the purpose of the MIDI, WAV or MP3 file is for use in parody or satire? Will a website visitor who merely played the MIDI, WAV or MP3 file but did not retain a copy, nonetheless be liable? What if I claim to have had no idea that it was illegal? Each question will have a different answer, depending on its particular facts.

One must also bear in mind that activities on web sites, including activities involving WAV, MIDI or MP3 files, can give rise to liability under laws other than copyright laws. A WAV file that suggests an origin for goods or services (e.g. the theme song of a popular television show) might possibly give rise to trademark liability.

What will happen to you if you are found liable for copyright infringment? In the US, if the copyright owner previously registered the copyright with the Copyright Office, then you may have to pay amounts of money set forth in the copyright statute, anywhere from $500 to $20,000. You may also have to pay the attorneys' fees of the copyright owner.

In the US, regardless of whether or not the copyright owner previously registered the copyright, you may have to pay actual damages. In addition, the court may order impoundment and destruction of the instrumentalities that made the copying possible. This may include your computer, your hard disk, your backup media, your MIDI keyboard, your modem, and other hardware and software.

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Any original work which you fix in a tangible medium is protected by copyright. The copyright laws of most countries reserve to the copyright owner the exclusive right to make copies of such a work or to distribute it. Upon hearing this, the reader might wonder how usenet news groups (which involve copying one's writings to thousands of news servers around the world) could possibly be legal. The answer is that when one posts to a usenet group, one is giving permission to those who operate news servers to propagate the posting in the way that news servers propagate postings. Similarly if one sends email to an email discussion group, one is giving permission to the computer that remails the items to remail the items. And of course one who posts material on a web site is impliedly giving visitors permission to view the site on their web browsers.

It would be a mistake, however, for someone to think that because it is easy to copy things from the internet, it is always legal to do so. Similarly it would be a mistake to assume that because a person who posted news or opened a web site granted permission to the public to do certain things, that the permission extends to all kinds of copying. This writer has heard of CD-ROMs being offered for sale that contain the entirety of the news postings in particular usenet groups, and it is difficult to see how this could be legal in the absence of permission from those who published the articles.

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This page is http://www.oppedahl.com/weblaw/

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© Copyright 1996 to the present, Oppedahl Patent Law Firm LLC. Disclaimer: This is not legal advice. Click for information on the purpose of this page. Here are some frequently asked questions relating to the World Wide Web. We welcome suggestions as to topics which should be added to this FAQ; send them to the Webmaster.

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Curated online learning resources platform with a collection of content creation tools and support materials

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Curated online learning resources platform with a collection of content creation tools and support materials

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The MERLOT system provides access to curated online learning and support materials and content creation tools, led by an international community of educators, learners and researchers.

MERLOT is an international community of educators, learners, and researchers.

Add a Material

Submit an online learning material you've found or created to the MERLOT Collection.

Create your own materials, add materials to the MERLOT collection, and be a part of the community. All for free!

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The MERLOT system provides access to curated online learning and support materials and content creation tools, led by an international community of educators, learners and researchers. MERLOT is an international community of educators, learners, and researchers. Submit an online learning material you've found or created to the MERLOT Collection.

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Free to use educational content, including images, videos, and books

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Free to use educational content, including images, videos, and books

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Wikimedia is a global movement whose mission is to bring free educational content to the world.

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Flickr | The best place to be a photographer online.

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The nicest place on the internet is here for you: inspiration, community, creativity, art, passion, and a heaping scoop of weirdness await you. Join for free.

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A guide to copyright and fair use for teachers - knowing when you can use copyrighted materials

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A guide to copyright and fair use for teachers - knowing when you can use copyrighted materials

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There are rules when it comes to using copyrighted material in the classroom-and easy ways to make sure you're always in the clear.

Michael Morgenstern / The iSpot

While some school districts have resources and policies to help teachers navigate the tricky waters of copyright and fair use, many teachers are under the impression that because they're educators, they have blanket protections.

But copyright and fair use laws are nuanced, and just because you're a teacher doesn't mean you're always in the safe zone. They're also not a nicety: In rare cases, school districts have been fined for violating copyright, so paying attention to the details of fair use and copyright can protect you and the school district. Educating yourself on the substance of the issue is also important because as a teacher you model proper use for your students so that they can protect themselves, too.

Copyright and fair use law has become a topic of concern as technology has increasingly lowered the barriers to sharing, copying, and creating at any time, making us all potential publishers and distributors of content. It's become a lot easier to break the rules. Particularly in the digital age, copyright is about collective responsibility and protection-and digital citizenship.

WHAT'S PROTECTED AND WHAT'S NOT

American copyright law originates in the U.S. Constitution and automatically protects all original, creative work in a fixed form; the moment a work is created, it is protected. Generally speaking, works created after January 1, 1978, are covered by copyright for a term equaling the life of the author plus 70 years after their death. The original works by Shakespeare, Dickens, Frederick Douglass, and just recently F. Scott Fitzgerald's The Great Gatsby and Alain LeRoy Locke's The New Negro: An Interpretation, for example, are in the public domain and are no longer protected by copyright. In addition, copyright doesn't apply to facts and public information, print maps, or government documents or pictures, so images and text from sources like NASA, the Smithsonian, and the National Archives can be used without permission.

The copyright for works that are not part of these exceptions is invisible and active at all times, of course, so it can be helpful to think about it like this: In most contexts, works created by others have a "No trespassing" sign on them. If you simply ignored a "No trespassing" sign on land, you'd be in violation of the law, right? Same thing with creative works, whether it's a doodle or the selfies you took with a friend's phone.

Within the context of educational and classroom settings (including online classes), copyright is a little more nuanced. There, even copyrighted material can be used if it's for face-to-face, instructional purposes and the educational institution is a nonprofit.

Teachers and most schools are therefore protected fairly broadly, allowing them to make use of films and articles from sources like the New York Times or Scientific American, as long as they do so in the context of instruction. Sharing a link to a recent Washington Post article in your learning management system, or to a video from PBS or CNN, is permissible if it's for the purposes of instruction and the educational institution is a nonprofit. Copying and distributing works created by others, however-for example, printing out whole articles and distributing them to your class-is generally riskier. In such cases, copyright law is more lenient when the copied material is not copied in whole or is not distributed to the whole class.

Be careful, as well, with any so-called creative works that you use in the classroom, like books, poems, movies, or songs. Generally speaking, even if you're using them for instructional purposes, these types of creative work are protected. In most cases, school systems purchase copies of those assets-or the students themselves are asked to purchase them-which gives everyone rights to consume them. Meanwhile, if you're using anything in this category for purposes that are not instructional, like showing a Pixar movie as a reward or during recess on a rainy day-without any instruction-then you're clearly infringing on copyright.

MAKING SENSE OF FAIR USE

To add to the confusion, there's the fair use doctrine, which is designed to promote freedom of expression (which is critical in educational settings) by permitting "the unlicensed use of copyright-protected works under certain circumstances"-a sort of legal counterbalance to copyright that allows for creativity. If there is a dispute about copyright, then judges use four factors to determine if something is protected by fair use.

Generally speaking, courts factor in the purpose of the use (did you use it for instructional purposes, for example); the nature of the original (was it fiction or more factual, for example); the amount of the work used (using all of the work, or especially important parts of the work is risky); and the value of the work (if your actions materially impact the ability of the artist to make a living, that infringes on copyright).

An important caveat: Use of content in the service of satire is OK, so if you're using or creating memes as part of your lesson plan, you're in the clear.

QUICK TIPS TO PROTECT YOURSELF

Given how nuanced copyright and fair use are and the complexities of digital use and sharing, these tips can help keep you in the safe zone.

Limit your exposure: Use a password-protected space like Google Classroom or any learning management system (LMS) to share published materials with your students, instead of using your class webpage. That way, you're sharing to the students in your class only.

Use Google's Tools setting: After a search for an image has produced results, click Tools/Usage Rights/Creative Commons license to filter images.

Use Project Gutenberg: It's a library of over 60,000 free e-books (and counting) for which copyright has expired. You can read them in a browser or on Kindle, or opt to download them. All of Shakespeare's work is there, for example, in addition to Narrative of the Life of Frederick Douglass, an American Slave, and works of many other authors.

Bookmark Creative Commons sites: The emergence of the internet spawned an innovation in copyright management called Creative Commons, which allows the creators of photos, videos, and text to apply transparent copyright rules and make the content available broadly. The Creative Commons search tool is invaluable for finding content you can use legally. Also bookmark sites that collect images, videos, or text that is shared under liberal Creative Commons rules-like Flickr, Pixabay (images, videos, and music), and Unsplash (photos); Noun Project (icons and photos); and Bensound, which has a library of free audio files-in addition to higher-quality files you need to purchase. Share the bookmarks with your students.

Don't forget Wikipedia: It's the grandfather of Creative Commons sites. You can copy or alter the text of this comprehensive resource, updated by volunteers who are often experts, if you include the backlink. Students should be warned, of course, that Wikipedia is subject to hacks (both malicious and comical), and the information should be verified with other sources.

Make use of free audiobooks: Multiple sites like Librivox and Spotify share free audiobooks. Titles on Spotify range from George Orwell's Animal Farm to Hans Christian Anderson's The Fir Tree.

Know that there isn't an urgency exemption: No matter how desperate the situation or noble your intentions, don't make and distribute copies of entire books, workbooks, study guides, practice books, or even an entire page from a textbook. Purchase enough copies for each student, or obtain permission from the owner to make copies.

Avoid copying and distributing "creative material": Novels, plays, movies, and poems are far more likely to be exempt from fair use.

Use published sources: Never copy and distribute unpublished material.

When in doubt, reach out: If a publication or resource you need is out of print and you cannot buy it (e.g., an out-of-print book), reach out to the publishing company and ask permission to make copies.

Plan ahead: Don't wait until the last minute and use something in haste.

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A Teacher's Guide to Copyright and Fair Use

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There are rules when it comes to using copyrighted material in the classroom-and easy ways to make sure you're always in the clear.

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The fair use doctrine- unlicensed use of copyright-protected materials, including for teaching purposes. 

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The fair use doctrine- unlicensed use of copyright-protected materials, including for teaching purposes. 

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Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses-such as criticism, comment, news reporting, teaching, scholarship, and research-as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, "transformative" uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright's purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part-or the "heart"-of the work.

Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner's original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work-or specific number of words, lines, pages, copies-may be used without permission.

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use. See 37 C.F.R. 201.2(a)(3).

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Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses-such as criticism, comment, news reporting, teaching, scholarship, and research-as examples of activities that may qualify as fair use.