• Part 3:
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• Copyright Law
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• Student Expectations
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• Conclusion
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Chapter 9

Copyright Issues in Online Courses:
A Moment in Time

Lori-Ann Claerhout
Athabasca University

Introduction

Copyright, in Canada and throughout the modern technological world, is now in a state of flux. Since its promulgation in 1924, the Canadian Copyright Act has survived many new technological advances: the photocopier, radio and television broadcasting, audio- and video-recording equipment, and the advent of mainframe and personal computers. Now, further technological advances in telecommunication, such as the Internet, are stressing the Act to its fullest capacity. As they embrace new electronic technologies, online educators are in a position to lead advances in copyright law. Through involvement in Canada's copyright consultation process, online educators are already setting the stage for this rights-balancing drama. By following proper copyright procedure in online course development, educators can sensitize their students to the traditional rights of creators and users, and the intellectual property ownership issues emerging in the electronic world.

Copyright Law

What Isn't Yours Doesn't Become Yours
When You Take It from a Web Site

Most pro-public-domain Web sites will argue that the true function of the Internet is to present freely available material to any viewer, who can then use that material for any purpose. Compare this view to that of pay-for-use Web sites, which see this medium as another cash-generating venue.

In Canada, copyright arises when original material is captured in a fixed form. Along with paper, audiotape or videotape, canvas, and photographic paper, Web or e-mail pages are fixed forms. Therefore, when original material is uploaded, written in an e-mail, or posted to a Web site, copyright arises. If no statement to the contrary is given, it can be considered a violation of copyright to use material presented on a Web site or contained in e-mail for any purpose other than direct viewing. There is no need for any statement asserting this right.

Jurisdiction and Fair Use

¹ For information on American copyright law, see the Library of Congress copyright site, retrieved May 3, 2004, from http://www.loc.gov/copyright/
² For more information on the DMCA, see Casey Lide's “What Colleges and Universities Need to Know about the Digital Millennium Copyright Act.” Retrieved May 3, 2004, from http://www.educause.edu/ir/
library/html/cem9913.html

In online and other forms of distance education, the law of the institution's country is the law considered. Nevertheless, copyright law in Canada is often confused with American law. The American doctrine of “fair use” is often cited as a reason to use material without permission.¹ Fair use is not a Canadian concept and does not apply in this country. Canadian law draws from larger frameworks.

As have most other nations, Canada has signed the Berne Convention (1976), which offers a common ground for copyright basics. The World Intellectual Property Organization (WIPO) offers best practice recommendations to treaty signatories (Canada is one) to promote international understanding on copyright issues. The United States has responded to the 1996 WIPO treaties by implementing their much-publicized and debated Digital Millennium Copyright Act (DMCA).² The government of Canada is in the process of considering changes to the Canadian Copyright Act.

Copyright Law in Canada—Changes

³ The full report is available online. Retrieved May 3, 2004, from http://strategis.ic.gc.ca/
epic/internet/incrp-prda.nsf/
vwGeneratedInterE/rp00863e
.html
⁴ The texts of the WIPO Copyright Treaty and related documents are available online. Retrieved May 14, 2004, from http://www.wipo
.int/

The Speech from the Throne of October 2002 promised work to bring the Canadian Copyright Act in line with current thinking on digital copyright issues. Industry Canada's report, titled Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act (2002) (hereafter referred to as 2002 Report on the Act), outlines areas of the Act to be examined.³ Issues that are not clearly addressed by the present (1924, revised) Act include Web-linking (or hotlinking) and Internet server liability. The 2002 Report on the Act also raised expanding the scope of “fair dealing” to include more exceptions—much like the U.S. fair use doctrine. Obligations to comply with 1997 amendments to the Canadian Copyright Act and to WIPO's copyright treaties⁴ have kept Canadian Copyright Act evaluation in step with developments in more than 150 other Internet-active countries.

Michael Geist argues that

digital copyright will take centre stage as the government identifies technical-measures protection (which uses encryption techniques to limit copyright of digital work) and ISP liability as key issues. Moreover, the copyright concerns of photographers and educational issues have catapulted to top priorities. (2002)

Other issues to be tackled in the Canadian debate include the term or lifespan of copyright protection, private copying, copyright attached to traditional knowledge, and database protection (Industry Canada, 2002).

The struggle within copyright law centres on a balance between rights of the creator and rights of the user of copyright-protected materials. As described in the 2002 Report on the Act:

Copyright is the right of the creator of an original work (and certain other subject matter) to authorize or prohibit certain uses of the work or to receive compensation for its use. It may be an exclusive right to control certain uses such as reproduction or a right to receive compensation such as the communication to the public or performance in public of a sound recording. Remuneration and control for rights holders, and the dissemination and access to their works, are the two fundamental principles underlying Canadian copyright policy. (Industry Canada, 2002).

The original Copyright Act of 1924 remained effective for more than 75 years. To be equally effective in a rapidly changing digital environment, revisions to the Act must be fair to both producers and consumers of copyright-protected material, and must address the capabilities of current technologies and not-yet-created technologies. Economic considerations must also be at the forefront of discussion about compensation to copyright creators and affordability to consumers. National economic interests are at stake:

In 2000, the gross domestic product (GDP) of the copyright-related sectors (publishing, film, music, software, visual arts, etc.) was estimated at $65.9 billion or 7.4 percent of Canadian GDP. Between 1992 and 2000, the value of these sectors increased by an annual average of 6.6 percent, compared with 3.3 percent for the rest of the Canadian economy. Together, these sectors formed the third most important contributor to the growth of Canada's economy. (Industry Canada, 2002)

Applications to Distance Education

Industry Canada recognizes “the importance of copyright reform to the management of knowledge” (Industry Canada, 2002), and recognizes that both users and consumers want clear rules for operating in the current electronically mediated world. Currently, there are no provisions in the Act for management of knowledge in distance education or for education outside classrooms or face-to-face settings.

At Athabasca University, where traditional distance education methods have been employed since the early 1980s, the body of practice from print copyright is often the default when dealing with new online issues. The bottom line is always due diligence. Each third party copyright item in a course has its own paper permissions files, and, since the mid-1990s, an electronic permissions file as well. The files are stored for historical reference (i.e., to provide information about a course) as well as for legal protection.⁵

Usage

The Linking Debate

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The use of hotlinks from course materials to Internet sites has transformed distance education learning materials. At the time of writing, there is no Canadian law to deal with issues of linking or deep-linking to another site. The controversy, however, is international, and outcomes could set boundaries for how material is accessed through online courses. Corey Murray, assistant editor of eSchool News, writes that “so-called deep-linking occurs whenever a teacher or some other person provides a Web link that bypasses another site's home page and goes directly to a specific article deep within that internet site” (2002; see also, Delio, 2002a). Murray acknowledges that although some online publishers have implied otherwise, U.S. law does not currently address the deep-linking issue. “Opponents of deep-linking argue that it costs sites in valuable advertising revenue if visitors are not required to visit the home page first” (Murray, 2002).

Murray interprets intellectual property lawyer Harvey Jacobs's predictions for lawsuits against deep-linking as follows:

he sees two possible strategies for those who would challenge the practice in court: first, that deep-linking is a form of trespassing [and second] that visitors who enter a site by way of a deep link cannot knowingly agree to the terms and conditions of that site, which are normally listed on the home page. (Murray, 2002)

Critics argue that the non-linear design of the Internet precludes the type of hierarchy implied by the term “deep-linking,” as Web pages are not stacked as such: each page stands alone, yet is connected to other pages.

In Kelly v. Arriba (2002), the Ninth Circuit Court of Appeals in San Francisco found that “a search engine that linked to copyrighted material by ‘framing’ it in a new Web browser window infringed on the copyright owner's rights” (Delio, 2002b). Framing, however, is technically quite different from linking. Framing imports the third-party Web page into the offender's Web page, instead of just leading to the third-party Web page, as is the case in linking.

A recent and defining case in linking practice is Danish Newspaper Publishers Association v. Newsbooster. The Danish Court ruled that Newsbooster violated copyright laws by deep linking to articles on Danish newspaper sites (Delio 2002a). The legal firm Hale and Dorr report five bases for the Danish Newspaper Publishers Association's injunction. Listed reasons include “repeated and systematic extraction” of portions of news headlines, avoiding advertising on the linked-to site, and financial gain.⁶

At Athabasca University, the course Web creator is advised to send a notice to the Web administrator of the linked-to site, informing them of our intent and purpose (see Figure 9-1). Responses have ranged from angry e-mails asking us to please stop wasting their time (as the Internet was developed to enable free information distribution), to requests not to link to the site, and even ecstatic notes because someone is interested in linking to their site. As well, some responses request Athabasca University to reroute through a more descriptive or main page. Sending these messages has also resulted in notifications of Web address changes.

Figure 9-1.
Hotlinking letter.

Policy

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It is important for any educational institution to have clear copyright policy that outlines who owns course material, and how the course material can be used by others.

Under Canadian law, copyright resides with the creator of original material captured in a fixed form. The major exception occurs when the creation is done under employment or using an employer's facilities or machinery. As the lines of what constitutes “under employment” are indistinct (particularly in the university environment, where work may be done on non-employer computers and hours of work can be erratic), internal policy and agreement are necessary. In most traditional universities in Canada and elsewhere, the university explicitly returns copyright for educational and academic materials to the employee-creators (normally the faculty members).

Athabasca University was created as a single-mode distance education institution in the early 1970s, and from its origin has had a much different policy in regard to ownership of instructional content. Contributors to Athabasca University courses often include visual designers, instructional designers, and editors, along with the content developers or faculty members. With each profession contributing to the whole course, rights are dispersed. In response, the University has developed and maintains policy stating that the University owns the copyright on all course materials created by any and all University staff. In the electronic environment, course production methods have changed and new technological positions have been added; however, Athabasca University's original rights ownership policy (created primarily for print-based courses) remains the same. Athabasca University's goodwill agreement with staff creators does allow material originally written for their courses to be used in other academic publications, provided that reference is made to the employer.

Simonson et al. describe a hybrid model of ownership as another possibility. In this model, the institution owns the course and the faculty member owns the content.

In this situation, if the faculty member accepts a position elsewhere, she or he can take the course content to the new campus and use it there. However, the course itself, including the content, also may be used by the former institution, with a new instructor assigned to teach the course. (2003, p. 137)

Simonson et al. (2003) also describe policies specifying royalty payouts to each party working on the course, including faculty and instructional technologists.

Student Expectations

⁷See (1) the “Electronic References” section of the American Psychological Association Style.org Web site. Retrieved May 4, 2004, from http://www.apastyle.org/

(2) the “Frequently Asked Questions about MLA Style” page. Retrieved May 4, 2004, from http://www.mla.org/style
_faq ⁸Retrieved May 4, 2004, from http://www.library.ualberta.ca/
guides/plagiarism

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Professors are eager to use new online options, and so are students. Student essays are no longer static documents written on paper—they now include audio and video material, and links to Web sites. Dynamic “papers” are being created and submitted, and with them, a new set of rules is emerging. New citation formats are developing and becoming established.⁷ The growth of full-text database and e-book accessibility enables students to use others' works more easily and accurately. With this accessibility, though, comes the risk of improper use of others' materials.

Plagiarism—the Risks Increase Online

Students are expected to submit original work. Plagiarism, however, has become technologically much easier. Online teachers must be more diligent about explaining plagiarism and intellectual honesty to students, and must be familiar with plagiarism search tools. The University of Alberta Web site “Guide to Plagiarism and Cyber-Plagiarism” is an excellent source for information on online plagiarism, examining subtopics such as “Why Students Plagiarize,” “Preventing Plagiarism,” “Detecting Plagiarism,” and “Paper Mills,” and including resources and links to other Web sites or software that can help identify plagiarized material.⁸

In “Why Students Plagiarize,” University of Alberta authors comment that

Plagiarism is a difficult concept to define because it encompasses a wide range of actions, from merely writing incorrect citations to the wholesale theft of someone else's work or ideas. Also, the type of plagiarism—deliberate or unintentional—have an impact upon the perception of the offence for both faculty and students. The exact causes of plagiarism are complex, but worth examining. (University of Alberta, 2002)

To encourage intellectual honesty, and to contribute to education on plagiarism, every Athabasca University course contains a notice like that shown in Figure 9-2, under the heading “Intellectual Indebtedness and Plagiarism” (Athabasca University, 2002).

Figure 9-2.
Intellectual indebtedness and plagiarism statement.

Practical Guidelines

Collective Licensing

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Collective licenses, such as those administered by Access Copyright in Canada and the Copyright Clearance Center in the U.S., have been helpful to post-secondary educational institutions. Collective licensing agencies work with creators to administer rights payments for reproduction of creators' work.⁹ Users of collective licensing agencies benefit from the “rights clearinghouse” effect of collective licenses. That is, where certain rights are allowed, users pay per-student and per-page fees to reproduce creators' works. The collective then distributes collected funds to the copyright holders. Collective licenses are only beginning to work for users wanting to reproduce materials electronically, and such licensing arrangements are not nearly as efficient as they have been for print reproduction. At Athabasca University, more than two-thirds of print-based reproduction occurs under a collective license, whereas nearly all electronic reproduction rights are negotiated directly with the copyright holder.

Timelines

Twenty years ago, the Athabasca University copyright office cleared rights to reprint third-party copyright holders' material by using the telephone, fax machine, and Canada Post. In a best-case scenario, rights would be granted in about two weeks. The worst case scenario occurred when the suspected copyright holder, who could only be reached by regular mail, turned out not to be the actual copyright holder, and other contacts had to be tried and negotiated with. This process could and often did take a year. Recently, for online courses and electronic reproduction, copyright clearance turnaround timelines are similar to the print-based ranges of the early 1980s (six months to a year), but current collective licensing arrangements can make rights permission for print-based reproduction instantaneous. With cooperating individual copyright holders, print and some electronic-based permissions have been hastened by the use of
e-mail and online forms. For examples, see the Web sites listed below.

•   Thomson Learning's site at http://www.thomsonrights.com/
permissions/action/begin

•   Pearson Education Canada's online form at http://www.pearsoned.ca/
highered/main_content/permissions_request.html

•   Public Works and Government Services Canada provides their preferred form online at http://cgp-egc.gc.ca/copyright/application-
e.pdf

•   Ivey School of Business forms can be found under “Permission/Order Forms” at http://www.ivey.uwo.ca/cases/cps.asp?pvar=Main

•   Prentice Hall (Pearson U.S.) forms are at http://www.prenhall.com/
mischtm/permissions.html

The (American) Copyright Clearance Center will grant electronic rights to Canadian requesters on behalf of affiliated copyright holders, and Canada's Access Copyright is also now trying this strategy as well.

Public Domain

With the lack of an efficient mechanism for collective licensing for electronic use of materials, the public domain becomes much more important to online course creation and delivery. Materials in the public domain are not subject to copyright restrictions. In Canada, textual material automatically enters the public domain on January 1 of the 51st year after the creator's death. The situation is different in the United States, which is currently debating the length of time required before materials enter the public domain. According to John Bloom (2002), the original term of copyright in the U.S. was 14 years, with an added 14 years if the author were still alive. Bloom goes on to note that

we have gradually lengthened that 14-year limit on copyrights. At one time it was as much as 99 years, then scaled back to 75 years, then—in one of the most anti-American acts of the last century—suspended entirely in 1998. The Sonny Bono Copyright Term Extension Act of that year says simply that there will be no copyright expirations for 20 years, meaning that everything published between 1923 and 1943 will not be released into the public domain. (2002)

The maximum term of copyright in the United Kingdom is currently life plus 70 years. Canadian federal and provincial documents are also protected by copyright, with the 50-year rule applying from the date of creation.

Some online creators now place their work in the public domain on creation. Using public domain material means that negotiating rights is not necessary—material can be used as-is and immediately, an attractive combination in online courses, where production time is minimized (no printing, binding, collating, and shipping) and the temptation is toward just-in-time creation. Note, however, that materials in the public domain still require appropriate citation; using them without acknowledgement constitutes plagiarism.

Scenarios: Online Course Production

Case A: Professor Rush is working on a course that she expects will be entirely online. Her course start date is in two months, and she has just decided to add some online readings. Best practice dictates that she check the online journal databases for these readings first. Most university libraries now register with many online journal database providers. Copyright on articles within the databases has already been licensed for the university user community. A link to the proper reading can be embedded in the course, and when students are ready for the reading, clicking the link will take them there directly. Course creators can also link to a search term, journal database search page, or library general search page. If Professor Rush's requested readings are not available through online journal databases, it may take several months for clearances. Professor Rush must then decide if she wants to wait to get permission to reproduce these readings or choose other applicable readings from those available in journal databases.

Case B: Professor Allbusiness has written a business administration course centering on several business cases. This professor is continually on the cutting edge of business practice and requires the most recent cases. Two of the largest creators of business cases, however, still do not allow certain of their materials (such as new cases) to be converted to electronic files and delivered to students, no matter what the format (e.g., password-protected site, CD-ROM, in pdf format on their own Web site). In this situation, it is simplest to get permission to reproduce these materials in print format, and mail them to the student in a printed reading file.

Case C: Professor Tacitus has worked in distance education for 30 years, and has several established and comprehensive humanities courses in print form, some with accompanying music cassette tapes. Professor Tacitus is interested in new technologies and now wants all of his material to be available online. In this case, much of the third-party material may already be in the public domain, and therefore can be used in the alternate format of online publication. Other materials, for which permissions have been obtained for print use, will require new permissions for electronic use. Clearing the rights for the music requires more research. Some tunes will be in the public domain, but their performances and the production of the songs will not be. In this case, performers' and producers' rights must be considered. It may take up to a year to secure permissions to reproduce all of this material for a Web site that may be technically ready in only days.

Processes

The Athabasca University Copyright Office uses a collection of form letters to initiate and maintain contact with copyright holders. An initial contact letter is shown in Figure 9-3. Prior to making any contact, searches are made to identify a copyright or permissions administrator to whom the letter should be addressed. Often, e-mail will be the easiest primary method of contact. A sample e-mail response to a standard faxed request is shown in Figure 9-4.

Figure 9-3.
Sample initial contact letter.

Figure 9-4.
Sample e-mail response.

Traditional Knowledge

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Although not directly related to issues of copyright for online materials in Canada or systems for negotiating copyright permissions, traditional knowledge is another issue that online course developers must be aware of. Before using stories, ideas, images, or sounds from an Indigenous group, consideration must be given to traditional forms of intellectual property transmission and credit. In practice, Canadian Indigenous Elders' knowledge has been held by the community. Who owns these rights within the community is not always clear.

Athabasca University's Centre for World Indigenous Knowledge and Research (CWIKR) works within a larger community of world Indigenous leaders. CWIKR consults with four decision-making groups. Three of them are CWIKR's consensus-based Nehiyiwak Caucus, an Internal Advisory Committee, and an External Advisory Committees, which primarily make planning decisions and identify key issues for the program. The fourth group is an Elder's Committee, which provides guidance on all issues, and sits on all other committees. These committees consider issues of appropriation, knowledge ownership, and usage; and must be consulted before traditional knowledges are used.¹⁰

Conclusion

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Everyone who can access a computer is a potential creator and user of copyright-protected material. The establishment of new technologies demands that new creators learn about copyright laws and best practices for use of materials presented electronically. To maintain the balance between creators' and users' rights, the governments of Canada and other countries must adapt their copyright laws. Until laws find a way both to protect creators' rights and to allow easy use of electronic materials, the potentials of new technologies in online education will not be realized.

References

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Athabasca University. (2002). Intellectual indebtedness and plagiarism. Master of Arts—Integrated Studies 656. Datascapes: Information aesthetics and network culture course guide. Athabasca, AB: Author.

Bloom, J. (2002, November 22). Right and wrong: The copy-right infringement. National Review Online. Retrieved May 4, 2004, from http://www.nationalreview.com/comment/comment-bloom112202.asp

Contreras, J., Breuer, C., & Penfold, L. (2002, October 3). The tangled web of global deep-linking rules. Retrieved May 14, 2004, from the Hale and Dorr LLP Web site: http://www.haledorr.com/publications/pub_detail
.aspx?ID=1838&Type=5543

Delio, M. (2002a, July 8). Deep link foes get another win. Wired.com. Retrieved May 4, 2004, from http://www.wired.com/news/politics/
0,1283,53697,00.html

Delio, M. (2002b, April 18). Deep links return to surface. Wired.com. Retrieved May 4, 2004, from http://www.wired.com/news/politics/ 0,1283,51887,00.html

Geist, M. (2002, October 17). Net copyright reform: It's deep in policy agenda. [Electronic version]. The Globe and Mail. Retrieved May 4, 2004, from http://www.globeandmail.com/servlet/ArticleNews/
printarticle/gam/20021017/TWGEIS

Industry Canada. (2002, October 3). Supporting culture and innovation:
Report on the provisions and operation of the Copyright Act. Retrieved May 4, 2004, from http://strategis.ic.gc.ca/epic/internet/incrp-prda.nsf/
vwGeneratedInterE/h_rp01106e.html

Ivey School of Business. (N.d.). Quick search. Retrieved May 4, 2004, from http://www.ivey.uwo.ca/cases/cps.asp?pvar=Main

Kelly v. Arriba, No.00-55521, D.C. No. CV-99-00560-GLT. (2001, 2002). Retrieved May 4, 2004, from http://www.ca9.uscourts.gov/ca9/new
opinions.nsf/C38AD9E9A70DB15188256B5700813AD7/$file/0055521
.pdf?openelement

Murray, C. (2002, June 11). “Deep-linking” flap could deep-six direct links to relevant content for students. eSchool News. Retrieved May 4, 2004, from http://www.eschoolnews.com/news/showStory.cfm?ArticleID=
3789

Pearson Education Canada. (2003). Copyright permission. Retrieved October 9, 2003, from http://www.pearsoned.ca/highered/main_
content/permissions_request.html

Prentice Hall. (2000). Permissions. Retrieved May 4, 2004, from http://
www.prenhall.com/mischtm/permissions.html

Public Works and Government Services Canada. (N.d.). Application for copyright clearance on Government of Canada works. Retrieved May 4, 2004, from http://cgp-egc.gc.ca/copyright/application-e.pdf

Simonson, M., Smaldino, S., Albright, M., & Zvacek, S. (2003). Teaching and learning at a distance: Foundations of distance education (2d ed.). Upper Saddle River, NJ: Pearson Education.

Thomson Learning. (2004). Permissions form. Retrieved May 4, 2004, from http://www.thomsonrights.com/permissions/action/begin

University of Alberta. (2002). Why students plagiarize. Retrieved May 4, 2004, from http://www.library.ualberta.ca/guides/plagiarism/why/
index.cfm

World Intellectual Property Organization. (2001). Home page. Retrieved May 4, 2004, from http://www.wipo.org

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