Copyright and the Web
 

Overview Fair Use on the Web Web Rules of Thumb Linking Distance Education (TEACH Act)

Overview

New media and the proliferation of electronic networks bring new challenges to the copyright equation. Creators and users of copyrighted works must extrapolate from general principles based on an understanding of the Copyright Law for print media and exercise their best judgment when making the transition to digital applications.

Copyrighted works are protected regardless of the medium in which they are created or reproduced. Thus, copyright extends to both digital works and works transformed into a digital format. The copyright protections that we normally associate with print media also govern the use of text, graphics, sound, and video on the Web. When you create original text, images, and other content for a Web site, you are most likely creating original works that are fixed in some tangible medium. A tangible medium in the online world may be a Web server, floppy disk, or CD-ROM.

Because copyright protection vests automatically to any original work that is fixed in a tangible medium, anything and everything on a posted Web site could potentially be under copyright protection. Copyright law protects not only the content of a Web site, but also the arrangement, the graphics, and the selection of links. The decision to post material on the Web and to give unrestricted access does not put it in the public domain. Likewise, the lack of a copyright notice on a Web page does not put it in the public domain. Therefore, you should assume that copyright protects almost everything that you find on the Web.

• Further readings on Copyright and the Web

Fair Use on the Web

Copyrighted material on the Web is also subject to fair use and other limitations on the rights of the copyright owner. Underlying copyright concepts that apply to traditional print media are also applicable to works found on the Web. The use of limited portions of Web material (printing, downloading, or communicating electronic information) without obtaining permission from the copyright owner may be allowable for nonprofit educational purposes. Remember, however, all academic uses of materials on the Web are not necessarily within fair use. The purpose of the use is only one of four factors, all of which need to be evaluated and balanced in making determinations about fair use (see Four factors of fair use ).

Web Rules of Thumb

1. Assume that copyright protects almost all works on the Web.
2. Limit access to your Web site. If access is limited through passwords or firewalls to only faculty and students, your fair use argument will be stronger.
3. Fair use generally favors nonfiction over fiction and other creative works. The use of scientific or other fact-based works is more likely to lean in favor of fair use than would the use of excerpts from artistic or creative works.
4. The shorter the excerpt the more likely it will be fair use. Be sure that you use only the amount that serves specific educational goals.
5. Always credit the sources of your information. Even though proper attribution does not make a use fair, attribution is important for intellectual honesty.
6. Find out if the author of a work (e.g., text, video, audio, or graphic) provides information on how to use his or her work. If explicit guidelines exist, be sure to follow them.
7. When in doubt, ask the owner of the copyright for permission. Keep a copy of your request for permission and the permission received.
8. When building your own web site, include a copyright notice in a prominent location and consider registering your work with the U.S. Copyright Office if your site content and design is unique.

• For information on how to register a copyright, see How do I register a copyright?
• For U.S. copyright notice requirements, see Circular 3, Copyright Notice?
• For UC copyright notice guidelines, see What is a copyright notice?

Linking

Most Web pages contain hypertext links. By clicking on a link, a Web user can access a particular file anywhere on the Web. Most users consider linking fundamental to the functioning of the Web and the equivalent of a cross reference in a bibliography or a card catalog.  Links do not contain information themselves but are merely an embedded electronic access that points to another Web location where information may be found.

There are several types of links, each with different copyright implications. In general, permission is not needed for a regular text link to other Web pages, providing the linked Web site does not contain unauthorized copying of a copyrighted work. Linking activity that contributes or encourages access to unauthorized copying is most likely a copyright infringement. To reduce the likelihood of any legal problems, you may want to consider including a disclaimer on your home page, stating that your site does not guarantee or endorse the information available at these linked sites.

A text link that bypasses a Web site's home page and instead goes to another page within that site is often called a "deep link." Many copyright experts believe that text-only deep linking is not a copyright infringement. There is no law prohibiting deep linking, and no U.S. court has prohibited the practice. Nevertheless, you should be cautious about using deep links that might interfere with advertising, especially deep linking to advertising-rich commercial sites. If a commercial Web site has a no linking policy or says that deep links are not allowed, it's wise to ask for permission before deep linking.

Other common types of linking activity involve importing content from one Web site into another Web site. "Framing" is the practice of importing information from another page for display into a special frame on a Web site. "Inlining" content pulls certain elements from a Web site, such as an image, from one Web site and incorporates them into another Web site. These two types of inline linking are more likely to violate copyright as they create a potential for creating a derivative work and could be viewed as modifying the appearance of the linked site and cause confusion as to the association between the two sites. While case law hasn't developed definitive rules on these types of internal links, you should ask for permission before framing and inlining content from another web site. Generally speaking, you should try to avoid using frames and inlining in a manner that might cause confusion to the viewer and avoid using deep links that might interfere with advertising.

Distance Education (TEACH Act)

On November 2nd, 2002, a new law called the "Technology, Education and Copyright Harmonization Act" (The TEACH Act), became effective which amends Section 110 (2) of the U.S. Copyright Act and establishes new standards for copyright and distance education. The TEACH Act redefines the terms and conditions on which accredited, nonprofit educational institutions in the U.S. may use copyprotected materials in distance education without permission from the copyright owner and without the payment of royalties. Prior to the new amendment, Section 110 (2) severly restricted the types of works that could be performed in the course of instructional transmissions in distance education. The new law expands the categories of works that can be performed in distance education to include "reasonable and limited" portions of most works, with the exception of works produced primarily for the education market.

• See more about the benefits and requirements of the TEACH Act

Additionally, the law also removes restrictions on the locations of receiving sites, permits the temporary storage of copyrighted materials for remote asynchronous performances and displays, and allows institiutions to digitize works to use in distance education under certain circumstances. For more information on applying the TEACH Act in higher education, see TEACH Guidelines.

While the TEACH Act expands the scope of educators' rights to perform and display works for distance education, the new law still contrasts markedly from the "classroom exemption" provision of Section 110 (1) that provides an absolute exemption to the exclusive rights of the copyright holder for perfomances and displays in face-to-face classroom instruction. In a classroom environment an educator may show or perform any work regardless of format with no permission required and without paying royalites. Under the new law, the same educator would have to scale back some of those materials to show them to distant students.

The TEACH Act offers many improvements over the previous version of Section 110 (2), but the law requires universities to meet numerous conditions to safeguard against unauthorized and inapproporiate use of copyright materials.

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