The goal of education is to provide a safe environment that encourages creativity and innovation. Students are both creators and users of intellectual property, therefore it is important to understand the ins and outs of copyright and fair use law. It is equally important that students understand how their personal rights and privacy are being protected. This toolkit provides an overview of copyright, fair use, and personal rights and privacy and resources to further enhance understanding of these concepts.
Intellectual property is a creative work expressed in tangible form. There are four types of intellectual property; copyright, patents, trademarks and trade secrets. Such as books, emails, graphics, essays, and even discussion threads are forms of expression which are protected by the United States Constitution (Spence, 2016). Copyright, patents and trademarks are sub-categories of intellectual property law (Spence, 2016). What’s not protected are names, ideas, methods, processes, concepts or common knowledge but can be protected in how these are expressed. The NCAA after a push from senators to pay college athletes to profit when used by third parties for the use of their name, image and likeness. The details are being determined. However, athletes can receive endorsements from third parties as long as the payments don’t come from the colleges they attend. This will change college sports endorsements and how student athletes can start earning money starting in the 2021-22 school year. (NPR, 2020). This will prevent digital game companies, uniform companies, universities and bobblehead companies to stop taking all the money off the backs of student athletes and start sharing the wealth three ways.
Intellectual property once created is protected under copyright law. these include such works as music, art or pictures, literary, movies, recordings, choreographic musicals, and books to name a few. (Copyright,1976).
The five fundamental areas that the bill gives copyright owners exclusive rights are: adaptation, reproduction, publication, performance and display are generally stated in the law, section 106. Owners have the exclusive rights to allow use of their works. (Copyright, 1976)
The Copyright Act of 1976 first legally established federal protection of copyrighted materials which was later extended to digital media with the Digital Millennium Copyright Act (DCMA) of 1998. The United States Copyright Office, the World Intellectual Property Organization, and the United States Patent and Trademark Office and Copyright Clearance Center oversee licensing and monitor the sharing of copyrighted materials, (Copyrights, 1976: DCMA, 1998)
Derivative works are any modifications or extensions of an original work such as language translation or motion picture production of an existing literary work and must receive permission for derivative work and display proper attribution. By using without permission, you could be fined hundreds of dollars. Copyright infringement can result in fines as small as $200 up to $150,000 with or without jail time Attribution is giving credit where credit is due, by providing proper citation, and or following all wishes of the copyright holder and outlined.
Some examples of copyright infringement include, using tables, direct phrases, text or web images without attribution or academic citation or copying a paper could be considered infringement.
To locate true copyright holders. Start with Copyright.gov: https://www.copyright.gov/. A great starting point. The Public Catalog is another. https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First
Do a search and you will find more sources. The key is that finding the source search tool. It can help you avoid infringement, finds and help you locate copyright holders and in some cases locate permission agreements.
The pandemic has forced many educational institutions to move quickly with online course offerings from lower school to higher learning. The moves are happening quickly that both schools and students can be subject to copyright infringement if policies are not spelled out accurately. Everything online is not public access for educational use for students and educators. If it is online, it has a creator and by using it, it is up for debate that if used, could be copyright infringement. Even modifying an original work, which is an example of a derivative work. This too could be copyright infringement which could result in fines.
We identify trademarks as images and brand names which they are usually marked with (TM) identifying their legal protection. If you want to create t-shirts for schools or fundraisers, you must be careful and understand trademark laws and try to avoid using brands or trademarked names and images to avoid infringement when violated could result in hundreds of thousands of dollars when violated by individuals, students, businesses or colleges.
Fair Use Doctrine
As Section 107 of the Copyright Act of 1976 covers the fair use of a copyrighted work, including use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. (Copyright Act, 1976)
Four Factors of Fair Use
Principle 1: Purpose and Character of the Use. Is the use commercial or nonprofit or educational? Commercial: seek permission; non-profit or educational: no permission needed. (Copyright Act, 1976)
Principle 2: Nature of the Copyrighted Work. What type of copyrighted work? (book, article, video, recording). Is the work protected by copyright or in the public domain? Copyright protection: seek permission; public domain: no permission needed. (Copyright Act,1976)
Principle 3: Amount and the Substantially of the portion used. How much of copyrighted work is used? (10% of text or up to 1,000 words; up to 250 words in a poem, individual or up to 5 illustrations used per artist or 15 images or 10% of a collective work; 10% of a musical composition, but no more than 30 seconds for each clip; and up to 10% of a film or movie with a limit of 3 minutes). How much does the copyrighted work contribute to the work as a whole? Amount over limits: seek permission; under limit: no permission needed. (Copyright Act, 1976)
Principle 4: Effect of potential market value of the work. Does such use diminish the need to purchase copies of such copyrighted material? (Example: distributing copies of a book to avoid students need for purchasing said book). If answer is yes: seek permission; if answer is no: no permission needed. (Copyright Act, 1976)
The public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. No one can ever own it. These works can be used by anyone without obtaining permission. There are no restrictions for use other than providing attribution.
The Creative Commons (http://creativecommons.org) allows creators to upload and distribute works with "flexible" restrictions of their choosing, such as attribution, no derivatives, or non-commercial use. Their copyrighted works such as images, graphics, articles, and blogs are a few of the many resources found in the Creative Commons domain. Each work is attributed with symbols signifying recommended copyright compliance for users of such works. Anyone in the world can use these original works as long as the follow the compliance as outlined by the original creators.
Personal Rights Violations and Privacy
There are many laws in place to protect your personal and privacy rights. Institutions follow laws that continue to take measures to protect the safety of students personal and privacy rights in order to create a safe learning environment for learning, innovating and creating in today’s data driven world. These are the three laws that govern and protect student’s personal rights and privacy are Family Educational Rights and Privacy act (FERPA), Children's Online Privacy Protection Act (COPPA), and Protection of Pupil Rights Amendment (PPRA).
I'll break each of these down: Family Education Rights and Privacy Act or (FERPA) became law in 1974, determines what, with whom, and under what circumstances student records may be released. All institutions primary, secondary, college, or university receiving funding from the federal government are subject to abide by FERPA, or risk loss of direct support from the U.S. Department of Education) (FERPA,1974). Students over the age of 18 and consenting parents of children under the age of 18 have the right to consent any release of educational records and the right to review their records, an amend inaccuracies (FERPA, 1974).
What FERPA does not protect are items considered public knowledge. Those are items are: name, address, phone number, e-mail address, field of study, grade level, date of attendance, degree earned, extracurricular activities, or awards and honors all of which may be found in the student directory (FERPA, 1974). The institution must adhere to the guidelines when sharing or releasing a student’s name publicly or provide a disclosure informing the student which gives the student the right to refuse or be included. A student provides educators and institutions in writing the ability to give references on their behalf unless stated by the student to an individual or institution.
Under FERPA, class schedules, course grades, and performance evaluations can be released for the following conditions: sharing between school officials with educational interest, complying with accrediting bodies, transferring credits between institutions, corresponding with financial aid lenders, and ensuring campus safety, student health and safety information may be released in cases with clearly established threat (FERPA, 1974).
In 1998, the Children's Online Privacy Protection Act (COPPA), was signed into law. This law is intended to regulate personal information collected online belonging to children under the age of 13. This includes: the name, home address, phone number, and family, guardian and friends close to the child. The school districts and individual schools may use this information for testing or instructional assessment (COPPA, 1998). To protect students, full disclosure of the district's intent for using such information must be clearly stated, as well as providing parents the option to either consent to share information or opt out of the research or testing (COPPA,1998).
In 1978, The Protection of Pupil Right's Amendment (PPRA) is also known as the Hatch Amendment. The law is designed to protect the rights of pupils and the parents of pupils in programs funded by the United States Department of Education (Ed (PPRA, 1978). The private information includes political affiliations or beliefs of the student or the student's family, student or student family history of known mental or psychological problems; sexual behavior or attitudes or illegal actions or antisocial or demeaning behavior; legally recognized privileged or relationships with the child such as those of lawyers, physicians, and ministers; religion or beliefs, and income (excluding those receiving federal assistance which requires disclosure of income (United States Department of Education, n.d.). The PPRA is designed for institutional use, assessing district demographics for federal funding of students with the consent from parents when the child is under 18.
Violation of Rights
The safety and security of student information privacy must be important at all times. Any violation of a student’s federal rights is subject to fines, legal fees and possible jail time. For more information about your student or parental rights or to answer questions, go to: the US Department of Education or visit http://www.ed.gov/ (US Department of Education, n.d).