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1. Copyright Law and Curriculum Development for Military Technical Training Instructors

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1. Copyright Law and Curriculum Development for Military Technical Training Instructors

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The ease and attraction of the availability of material in text and digitization can be an alluring option for the curriculum developer who is seeking to create or improve material within their assigned field. Ultimately, that developer will have to consider whether the material is covered by copyright, more specifically, federal law as dictated by the Copyright Act, 17 U.S.C. § 102 (1976).

Knowledge of this federal law, organizational policy and ethical practices are indeed important. However, the law is not all limiting and does not need to serve as an obstacle to development progress!

To expand upon this, let's first concisely define the law:

Copyright grants the creator/owner exclusive rights that protect against unwanted or unauthorized - Reproduction, Distribution, Derivative Work, Public Performance or Display.

These four topics can be much more intellectually involved, but will provide adequate meaning and detail for this audience in later elements of this presentation.

Copyright Act, 17 U.S.C. § 102 (1976).

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Federal Level:

At the federal level, copyright law is governed by the U.S. Constitution (Article I, Section 8, Clause 8) and the Copyright Act of 1976 (Title 17 of the U.S. Code). However, the U.S. Copyright Office is the agency that is responsible for its administration. In that capacity, it provides registry, records documents, provides information to the public and advises Congress. It sits as a primarily autonomous section of the Library of Congress.

In practical relation to education: The office is the official source for administrative interpretation of the Copyright Act to include Fair Use, the Technology, Education, and Copyright Harmonization Act of 2002 (TEACH Act), 17 U.S.C. § 110(2) & 112(f) (2002). They are the first and ultimate reference point for educators to understand copyright law from photocopying to streaming films.

The Department of Education is another key contributor at the federal level for governance. As its policies and directives to educational pretensioners are steeped in compliance and knowledge of the federal standards. Their application is not necessarily legal, but rather advocacy.

State Level:

State Departments of Education and State Education Agencies may not necessarily be involved in governance as much so as compliance, assistance and professional development in terms of copyright law. These functions provide training and guidance on open educational resources, copyright best practices and can serve in an advisory role for districts or educators seeking clarity on copyright issues.

Texas State Level:

As an additional point of learning during research based on author proximity, the Texas Education Agency (TEA) provides guidance to school districts on various legal matters which often include copyright topics once again centering around advice and training, fair use opportunities and TEACH Act training and licensing.

Higher Education:

In the interest of further exploration on the topic at the state level, higher education systems (universities) often layer legal departments and intellectual property offices within their systems. In these instances, it is as much to control the loss of copyrighted material as it is to ensure compliance.

U.S. Constitution (Article I, Section 8, Clause 8) and the Copyright Act of 1976 (Title 17 of the U.S. Code).

Technology, Education, and Copyright Harmonization Act of 2002 (TEACH Act), 17 U.S.C. § 110(2) & 112(f) (2002).

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Federal:

The copyright act in the United States is federal law. This is specifically stated in 17 U.S.C. § 301 - U.S. Copyright Act 1976. This section specifically implicates that all legal and equitable rights to intellectual property are within the scope of federal copyright law and states cannot grant equivalent rights.

Copyright law is a clause with the Intellectual Property Law

Source of Law - U.S. Constitution

Link to full text U.S. Constitution - Article I, Section 8

Sortable, searchable definitions, terms, sections, appendices, definitions etc. https://www.copyright.gov/title17/

State:

While copyright is overwhelmingly a federal domain due to the Intellectual Property Clause and the Supremacy Clause (U.S. Const. art. VI, cl. 2), state constitutions can align with copyright principles in more general ways, particularly through their provisions on free speech and property rights. State provisions do not create or directly govern copyright but influence the broader legal environment in which copyrighted works are created, disseminated, and enforced.

One may draw some parallels obviously to the protection of properties. In this instance, California state constitution provides its version of Property Rights - Cal. Const. art. I, § 1 (Inalienable Rights including acquiring, possessing, and protecting property); Cal. Const. art. I, § 7 (Due Process).

Source of Law: State Constitution

Link to full text: California Constitution - Article I, Section 1 and or California Constitution - Article I, Section 7

Relationship to federal copyright law: In this example, the state constitution protects the right of an individual to have ownership if their creations and possessions.

Crossover with federal copyright law: This clause of the California constitution reinforces the concept of protecting ownership of property (abstract or real) much the same as the foundation of copyright law's premise of rewarding creation by protecting its ownership after the fact.

17 U.S.C. § 301 - U.S. Copyright Act 1976.

Intellectual Property Clause and the Supremacy Clause (U.S. Const. art. VI, cl. 2).

Cal. Const. art. I, § 1 (Inalienable Rights including acquiring, possessing, and protecting property); Cal. Const. art. I, § 7 (Due Process).

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Statute: One very relatable statute for educators of several disciplines is the Digital Millennium Copyright Act (DMCA). This statute within the U.S. legal structure emanated from the World Intellectual Properties Treaty in 1996 and sought to protect digital providers from liability if they met prescribed legal standards that in turn protected the original copyright owner/creator from property infringement, 17 U.S.C. § 512 and 17 U.S.C. § 1201 et seq. Obviously necessary with the dawn of the internet and continues to modify today in the advent of Artificial Intelligence and large language models. While, somewhat detailed in totality, below is a quick reference guide:

Source of Law: Digital Millennium Copyright Act of 1998

Link to Full Text of Law: 17 U.S. Code Chapter 5 - Copyright Infringement and Remedies

and 17 U.S. Code Chapter 12 - Copyright Protection and Management Systems (specifically § 1201 and § 1202)

Administrative Law:

Multiple Administrative Laws populate the copyright legal canvas. This continues with emerging technologies. One recent addition in the area of Administrative Law is the Copyright in Small-Claims Enforcement (CASE) Act of 2020.

In June, 2022, the requirement to pursue copyright infringement in federal courts was officially delegated to an administrative tribunal within the U.S. Copyright Office called the Copyright Claims Board. This administrative law specifically targeted smaller claims (30k or less) and afforded the tribunal legal authority to settle disputes without the more timely and costly requirement of federal court. This includes all works and includes DCMA cases as well.

Source of Law: Title 17, U.S. Code: The CASE Act primarily amends Title 17, Chapter 15.

Link to Full Text of Law: https://www.congress.gov/bill/116th-congress/house-bill/133/text/pl

**navigate to Division Q of PDF

17 U.S.C. § 512 and 17 U.S.C. § 1201 et seq.

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1. Basic Books Inc. V Kinko's Graphics: This particular case is well documented and is easily researched in the archives of the Copyright Office itself. This particular case is of great use in the educational realm as it specifically deals with "fair use", "profit", and "educational purpose".

Facts: In 1991 Kinko's Graphics Corp. acquired a multitude of course reading lists from college professors and created de facto "Cliff Notes" without permission or license, and sought to sell the materials as photocopied binders to students. Publishers of the materials who owned copyrights sued in the U.S. District Court of Southern NY. Kinko's primary defense was that of fair use. Fair Use is defined in detail on slide 8. Ultimately, the court ruled that Kinko's was in violation of a founding pillar of the Copyright Act of 1976 which prohibits the use of non classroom material and/or for profit materials rendered from copyright material without permission or license. More specific and detailed reading on this subject can be found via Basic Books Inc V. Kinko's Graphic Corp. 758 F. Supp. 1522 (S.D.N.Y. 1991).

2. Princeton University Press v. Michigan Document Services: To continue the fair use and "for education purposes" training journey, this case is similar to the Kinko's case in 1991 and once again involved a commercial, for profit printing company and a university. In 1996, Michigan Document Services (MDS) reproduced excerpts of copyrighted works, sold (and specifically marketed) them to university students. In this instance, MDS argued that their specific marketing achieved an element of fair use because of the educational aspect. However, the judges of the 6th Circuit U.S. Court of Appeals unanimously agreed that MDS was in violation of the Copyright Act as the final intent of the reproduction was NOT specifically for in classroom use and WAS for profit. Both of which radiate as immediate obstacles to the somewhat generous (subjective opinion) parameters of educational fair use. More so in this case, MDS had photocopied and offered for sale significant amounts of the material and bypassed any opportunities at license, although the publishers had offered license mechanisms on the Copyright Clearance Center. For further detailed reading, this case is also available at: https://www.copyright.gov/fair-use/summaries/princeton-michdocument-6thcir1996.pdf

and offers a more legal version at Princeton University Press v. Michigan Document Services, Inc. 99 F.3d 1381 (6th Cir. 1996) (en banc).

Basic Books Inc V. Kinko's Graphic Corp. 758 F. Supp. 1522 (S.D.N.Y. 1991).

Princeton University Press v. Michigan Document Services, Inc. 99 F.3d 1381 (6th Cir. 1996) (en banc).

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6. Copyright Laws and Federal Regulations or Mandates

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6. Copyright Laws and Federal Regulations or Mandates

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Federal Regulations:

A very significant element of the Copyright structure in the U.S. is the Code of Federal Regulations (CFR), Title 37, Chapter II (U.S. Copyright Office, Library of Congress). This CFR established the detailed rules for interaction with the Library of Congress Copyright Office, established the definitions, requirements, and proceedings for all media (works), 37 C.F.R. § 201 et seq., that are eligible for protections afforded by the Copyright Act.

Source of Law: Code of Federal Regulations (CFR), Title 37, Chapter II (U.S. Copyright Office, Library of Congress)

Link to Full Text of Law: eCFR: Title 37, Chapter II—U.S. Copyright Office, Library of Congress

37 C.F.R. § 201, et seq.

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7. Local Policy/Rule - Air Force Instruction 51-303 Intellectual Property

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7. Local Policy/Rule - Air Force Instruction 51-303 Intellectual Property

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Air Force Curriculum Developers Instructors and all personnel are locally bound to Intellectual Property protections as well.

This is documented specifically in AFI 51-303. This instruction provides guidance and procedures on intellectual property, to include handling inventions, filing for patents, and various other matters pertaining to patents, copyrights, trademarks, and proprietary information (U.S. Air Force [AFI], 2018). It implements DoD Instruction 2000.03, International Interchange of Patent Rights and Technical Information, dated 17 January 2006, and Air Force Policy Directive 51-3, Civil Litigation, dated 21 May 1993.

Taken from page 2 of AFI 51-303:

The Acquisition Law Division:

Advises governmental agencies and branches of the Government on all legal issues concerning intellectual property and technology transfer;

Provides related guidance, advice, and assistance to all Secretariat Offices, program executive offices, the major command legal offices, and the servicing legal offices;

Provides written determinations regarding rights in inventions;

Performs other intellectual property related duties as

Link to full text:

https://static.e-publishing.af.mil/production/1/saf_gc/publication/afi51-303/afi51-303.pdf

(U.S. Air Force [AFI], 2018).

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Risk management for copyright infringement where educators is concerned does not need to center on avoidance as the only option!

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An educated body could easily do a quick search and find some very routine "answers" for copyright infringement risk management. Those risk management factors would include some very prudent advice that would include:

Implement Robust Copyright Due Diligence Protocols

Establish Inclusive Internal Policies and Employee Trainings

Systematically Monitor new works for oversight and compliance

Somethings to offer in regards to risk management and carry over to best practices that would supplement these fine strategies, specifically for those who teach/instruct in a classroom environment at the public level:

Ensure that employee trainings include clear definition and examples of:

Fair Use

Purpose and Character of Use

Benefit

Amount and Portions Used

Classroom Performance/Display: Section 110(1) of the Copyright Act specifically permits the performance or display of copyrighted works in the course of face-to-face teaching activities in a classroom or similar place devoted to instruction. This is a powerful, specific exemption

TEACH Act

Creative Commons

Pre-Cleared Permissions

Four Main Elements - Attribution, Non-Commercial, Share Alike, No Derivatives

"For Profit"

** In this section, it is easy to relate these strategies and the training content back to the case law reviews section 5.

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Educators hold the act of gaining an advantage dishonestly or unfairly in some degree of disdain. This is commonly considered in terms of the ethical standards applied to students and their work towards the end goal of the course.

However, the educator's personal and professional code of ethics as well as that of a federal employee hold them to the same standard.

According to the 7th Bomber Wing's Collective Bargaining Agreement (2024), page 2, Code of Ethics, Federal Employees will:

"Uphold the Constitution, laws and regulations of the United States and of all governments therein and never be a party to their evasion."

"Give a full day’s labor for a full day’s pay; giving earnest effort and best thought to the performance of duties, with honesty and integrity."

The two excerpts could apply to any ethics agreement for any employee. In this instance, both segments give credence to the avoidance of circumventing any law - in this study, copyright law.

(7th Bomber Wing, 2024, p. 2)

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10. Legal and Ethical Standards Personal Connection

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10. Legal and Ethical Standards Personal Connection

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I seldom publicly announce or display my somewhat "Gallahadian" stance on ethical and legal turpitude. While it certainly is/was not a product of nurture, nor evident in my propensity to entertain (class clown), it has seemingly always been woven somewhat deeply. Given that, the purpose, reason and application of legal and ethical standards in professional and personal spaces has been quite normal. Challenging of course, when the more convenient route involves temporarily forgetting those legal and ethical principles.

As a military leader (enlisted/civilian) for over 30 years I found myself long attempting to model ethical standards to not only those who I "led" but sometimes, for those WITH whom I led as well. It is rewarding, when far down the line, a select few offer thanks for those actions and that carriage.

As I watch my own spouse pursue her own career, and communicate with her about her ethical and legal issues as a classroom teacher and campus principal, I am pleased, and sometimes in awe at the deliberation, and prudence that public educators MUST apply for the welfare and success of our next generation(s).

In this course, as I perused feedback about given situational topics, I witnessed the detail and thought that several classmates applied to their responses to each other. I was pleased and encouraged at the moral depth (legal and ethical) of which my colleagues are capable, informed of, and practicing.

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To conclude my own educational journey, for now, in the topic of legal and ethical principles, I offer the following best practices:

Generality

1. Know (and always attempt to understand) the "why" behind a given law, act, mandate, or principle.

2. Share your understanding of the "rules" to grow the people around you versus using the rule as a fear tactic, obstacle, or defensive mechanism.

3. Promote compliance and virtue in act and deed, not just word.

Copyright Law

1. Research the specifics of the law and ascertain the details that specifically aid (or prohibit) your desired course of action for development or re-use in an educational setting.

2. Encourage fellow educators, ICs, and curriculum developers to explore and use repositories of content that MAY provide a huge, legally clear pool of images, videos, audio, text, and full courses that educators can readily incorporate without licensing concerns (Wikimedia Commons, Flickr, YouTube, Unsplash, Google Images, OER Commons, LibreTexts, Khan Academy)

3. Offer training that caters towards progressive knowledge that includes information about creative commons, fair use, and licensing process rather than case law and legal ramifications exclusively.