Using Copyrighted Works
Nearly every activity on a university campus, especially teaching, research, and publication functions, is affected by copyright law. Universities, through their faculty and staff, are enormous consumers and producers of intellectual property. Every original work created here is automatically copyrighted as soon as it is fixed in a tangible medium of expression. And someone or something is the copyright holder. The question is who?
Conversely, every course taught at NC State, without exception, uses copyrighted material, whether the material belongs to the faculty member, NC State, or, most significantly, to an outside third party. It is the use of someone else's copyrighted material, in both face-to-face settings, as well as that transmitted over the web or cable, that poses the greatest risk of copyright infringement for the University. Because of that, it is imperative that every member of NC State involved in teaching, research, and extension activities, possess a functional knowledge of copyright law or, at the least, be able to recognize when there may be a problem. This educational necessity has been incorporated as a requirement in nearly every piece of federal copyright legislation that has passed in the last ten years. In addition to the federal government's mandate for copyright education on university campuses, the University of North Carolina Copyright Ownership and Use Policy, as well as NC State's Copyright Implementation REG 01.25.03, mandates campus copyright education and places that responsibility squarely within the Office of the Provost.
Unfortunately, many faculty and administrators base their current practices of using as much of someone else's copyrighted material as they want, without permission, on their past experiences in the traditional face-to-face classroom setting. Copyright law, which gives the holder the exclusive rights to reproduce, modify, transmit, perform, or display works, has a special exception built in for uses in the traditional face-to-face classroom [§110(1)] that is far different from and much more forgiving than transmitting exactly the same material over the web or via streaming video [§110(2)]. Combine copyright's inherent greater tolerance for activities in traditional classrooms with the difficulty in monitoring or enforcing what happens in a traditional classroom, and you have a generation of educators who believe that any educational uses via any technology are also permitted, since they never faced any repercussions in the past.
Nothing could be further than the truth. Technology has changed our lives in countless ways and one of those is how faculty can use third party copyrighted material within their online courses or online portions of courses. Not only is copyright law much different and, in many ways, more restrictive, there is an accompanying loss of anonymity. Infringing acts are more visible and simply hiding the infringing uses behind access controls does not change their infringing nature or protect them from litigation discovery processes.
Ignoring the law and relying on the false sense of security provided by decades of teaching in the more tolerant and relatively anonymous cocoon of traditional classrooms by supporting infringing activities, (even unintentionally) is, for lack of a better term, indefensible. One only has to notice the increase in litigation and pre-litigation actions brought against universities to realize the central position copyright has assumed in relationship to core missions of the university.
Essential Nature of Copyright Educational Activities
As ever, the best defense is a good offense - especially in this setting. Not only do copyright educational activites allow universities to take advantage of certain shelters within copyright law, it allows them to access the most important defense of all - the reasonable good-faith fair use defense set forth in §504[c].
If you have a copyright question, please contact William Cross at firstname.lastname@example.org.