Copyright and Fair Use: An Issue of Ethics in a Changing Learning Environment
Introduction
At the core of copyright and fair use is ethics:
"I walked into my classroom the first day of class and one of my students had a photocopy of the textbook on her desk — The unbelievable part is that I was the author of the book!"
As the copyright infringed author, this faculty member's first desire was to strive to have his student dismissed from the university, but a few questions came to mind: Did the student know better? Was the student ignorant of copyright infringement? Did the student really care what anyone thought? Did it matter the student was a doctoral student at a research university?
The teacher did approach this student, in a questioning manner, and the student was not concerned about the issue of copying the teacher's book or about the general issue of copyright ownership. The teacher let the matter drop after their brief conversation, however, the teacher still has difficulty understanding the student's unethical behavior — the illegal copying of his materials and the nonchalant attitude toward ownership of copyright protected materials.
Legal discussion and testing of copyright issues began in England in the 1700's with the 1709 Statute of Anne (Spigelman, 1998). By the early 1900's, copyright laws were enacted in the U.S. to protect the intellectual rights of creators/authors/publishers. Obviously, federal leadership could not have foreseen the changes in technology that would affect copyright laws. Consequently, the laws have been consistently reviewed and tested for validity and applicability over the past 100 years. Congress and the courts have addressed issues such as the types of works protected and the length of time pieces of work are protected as well as established standards for those situations that fall outside of the original scope of the law. In 1980, Congress passed the Computer Software Copyright Act though software was accepted for copyright purposes as early as 1964 (Bowyer, 2000). In 1989, Community for Creative Nonviolence v. Reid established "work-for-hire" standards to distinguish between works produced individually or as part of an organization (Costello, 1994). The most recent amendment to Title 17, the codification of the United States Copyright Code, is found in the Digital Millennium Copyright Act which became effective January 2001. As it stands now copyright law protects personal expressions of ideas presented in a "fixed" tangible form for the life of the author plus 50 years (Bowyer, 2000). Excepting the "first sale" rule, the copyright owner retains all rights to the expression including making direct copies, disseminating copies, creating other works that are derived from the original expression, and publicly displaying or performing the work. Unfortunately, most educators, when asked, are under the impression that they are allowed to utilize copyright protected work if it's for "educational purposes". While the idea of "fair use" addresses the use of portions of copyrighted materials in the classroom, let us begin by dismissing this myth: "Educational purposes" is not an allowance for copyright infringement.
Distance/distributed learning environments are more susceptible to copyright infringement than traditional face-to-face classrooms. The copy and paste commands are becoming the most used means of circumventing copyright protection (Gajadhar, 1998). This practice has replaced the copy machine of earlier decades. While the ease of access to and the relative accessibility of information on the Internet affect both environments, distance education more severely limits the ability of the instructor to rely on nonverbal communication to model appropriate behavior and to assess performance thus making it more difficult to identify and correct unethical behavior.
This article discusses the topic of copyright infringement from a different aspect than many other research articles. Copyright articles, typically, discusses this issue from a legal perspective, but it is our opinion that teacher/trainers and performance technologists must also be concerned with the practical application of these laws to ethical dilemmas encountered in the learning environment. Many educators are also authors and therefore have both a professional and ethical responsibility to accept the role of educating other teacher/trainers and students about the legal and ethical practices associated with copyright and fair use.
Copyright infringement is one of the most talked about, yet most misunderstood topics in the curriculum and instructional development areas. Many educators and trainers will claim to have a general idea of the limitation of copyright and fair use, yet cannot provide solid definitions and examples of when it is acceptable, or more importantly, ethical to use another author's work. More importantly, the field of copyright protected material utilization is fraught with gray areas that undermine an individual's honest ability to discern what might or might not be lawful uses of copyrighted materials. This article began with a brief history of copyright law in the U.S. and provides examples, references, and discussion of "fair use." Additionally, issues related to the Internet are addressed, including: Web Linking, Framing, Plagiarism, Web-based Referencing, and finally considerations and suggestions for teaching and using ethical practices in the industrial and educational classroom.