Today's educators face a dilemma brought on by a new age of technology. They possess the ability to transfer, duplicate, and digitize instructional materials faster and easier than at any time in history. However, they must discipline themselves with a moral obligation and civic responsibility to respect the rights of the copyright holders who have produced these materials. As educators, they must provide the modeling behavior that demonstrates integrity and trust to their students (Chase, 1989).
Many educators lack a basic understanding of the copyright law and the actual latitudes it provides for educators. This lack of understanding is often the cause for the inappropriate use or retention of materials. To combat this behavior and provide protection for the institution's financial interests, administrators have adopted conservative copyright policies often composed by program producers. These policies often lead to exceedingly conservative guidelines being recommended to the faculty, thereby restricting their ability to take full advantage of the copyright law.
The application of the copyright law to education is ambiguous, confusing, and misunderstood (Sinofsky, 1982). A number of factors have contributed to this situation. First, the law itself is unclear. The 1976 General Revision of the Copyright Law attempted to fill the gaps in old legislation created by newer technologies like video recording, mimeographing, and microcomputers. Additional statutes have attempted to clarify specific situations, especially in regards to education. Yet the myth of "educational use" still dominates academia. A general understanding of the law and its boundaries is lacking even in media administration (Wertz, 1984).
During the past decade a limited number of studies have been done on copyright issues in education. These studies have examined educators' attitudes (James, 1981), policy formation (Bell, 1980; Clark, 1984; Crews, 1990), knowledge of the law (Wertz, 1984), and fair-use interpretation (Sinofsky, 1983; Chase, 1989). The concentration of this research occurred shortly
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after the 1976 revision and the creation of the 1981 off-air taping guidelines.
The lack of publicity surrounding the enforcement of copyright law has lured educators into a false sense of security by incorrectly assuming that producers are not interested in enforcing copyright law in education. While a few cases, like Encyclopedia Britannica Educational Corporation v. Crooks (1978) - more commonly known as the BOCES case - make headlines, instructors are unaware of more common actions consisting of cease and desist letters with invoices for payment for illegally accrued materials. Recently administrators of educational institutions are becoming more active in institutional policy formation and enforcement, especially since the loophole of sovereign immunity closed with the Copyright Remedy Certification Act of 1991. These institutions now realize that they have a financial stake in the issue of copyright.
While copyright law dates back to the middle ages in Europe, educators are most affected by the law enacted in 1976. Congress passed the first Copyright Act in 1790 and subsequently revised it in 1831, 1870, 1909, and finally in 1976. The 1909 revision was prompted by the development of audio recording techniques, and like the 1909 revision, the 1976 revision was a result of technological advancements (Patterson & Lindberg, 1991). During that decade, educators for the first time could record and play back off-air television programs. They could duplicate printed materials easily and more quickly, and they had access to audio formats that were easier to use and manipulate.
Along with the technological advancement, some theoretical constructs were also the stimulus for revision of the Copyright Act of 1976. The first outlining of the concept of fair-use occurred in the 1976 revision (Sinofsky, 1982). Fair-use is the understanding that copyright holders need to balance their claim of compensation for materials used with the professional public's right to access information. While the Act attempted to define
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limits for fair-use, it lacked specific criteria, and the basic result has been confusion. For instance, the one area the act did not specifically address was the off-air taping by educators (Sinofsky, 1982). Did the recording of a television program to be shown in class later violate the copyright law?
In 1979 the Supreme Court ruled in the case of Universal City Studios, Inc. v. Sony Corporation of America. The determination was that the recording of programming from the air waves at home for time shift playback did not violate the copyright law. This case specifically dealt with tapes recorded and played back in the privacy of ones home. Educators still were without answers to their off-air questions.
In 1979 Congressman Robert Kastenmeier appointed a negotiating committee representing several interests to address the off-air copyright issue. The result of the committee's work was "The Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes" that were read into the Congressional Record in 1981. These guidelines reflected the committee's interpretation of the fair-use doctrine on the educational use of off-air recorded material and specifically defined how educators could use off-air recorded materials. The majority of producers and educators have fully endorsed these guidelines. Institutional practices that deviated from these guidelines would undoubtedly be found in violation of copyright laws. (Becker, 1992).
In the late 1980's, the plea of sovereign immunity became a cloak used by state funded schools being sued for copyright violation. In the case of BV Engineering v. UCLA, adept lawyers representing UCLA claimed that as a tax-supported agency UCLA was immune from prosecution for copyright infringements. The courts upheld their position but noted that individuals within the institutions were liable. However, the Copyright Remedy Clarification Act in 1990 closed the sovereign immunity loophole.
Educators of the 1990's are unique compared to any other prior instructional generation. They are a technologically sophisticated group who are incorporating interactive video,
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computer based instruction, digitized images, and on-line services to accomplish their instructional goals. With this empowerment comes responsibility, and the majority of educators are uninformed when it comes to understanding the copyright laws applicable to the technologies. Too often they fall back on the myth of "educational use" as an excuse to justify their actions. More prevalent is the attitude that enforcement is nonexistent and their risk is minimal (Chase, 1989).
Studies have been done to examine the extent to which educators have been exposed to the copyright laws. A 1981 survey study by James used a variety of levels of educators in Arkansas as subjects. The analysis revealed that most had some exposure to the copyright law, but the majority felt limited in their understanding of copyright litigation, history, and development of the law. In addition, educators surveyed said they needed assistance in interpreting and applying the copyright law. Overall, James concluded from the study that a lack of understanding concerning copyright exists in the educational community.
A later study (Clark, 1984) examined the knowledge levels of media directors from across the country on the general revisions of the 1976 copyright law. A survey instrument was sent to over 200 media directors who were members of the Association for Educational Communications and Technology. With a proficiency level of only 75%, a mere 15% of the 144 media directors who responded were able to demonstrate competency in understanding the copyright law and its application. Considering that a media director should be one of the most informed members on campus about copyright law, this does not speak favorably of the institution's overall knowledge of copyright. A follow-up study replicating the research of 1984 is planned, and Wertz has already expressed doubt that media directors will score much higher ten years later. (Sandra L. Wertz, telephone interview, November 17, 1992) Initial results on the replication are showing about 8% of the 1993 media directors being able to pass the same proficiency (Chase, 1993).
More current study and discussion reveal that the passage of time has not significantly improved the dissemination of
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information on copyright law. A 1989 study conducted interviews with the media directors of the 16 Pennsylvania State System of Higher Education and state related schools. Participants were asked questions about their department policy and their handling of specific situations. Their responses were then evaluated and weighed based upon their permissiveness or restrictive nature. It indicated that nearly half of the schools held copyright policies that could be construed as permissive (Chase, 1989).
Opinions held by educators and copyright holders have often conflicted over the proper use and manipulation of copyrighted materials (Bell, 1980). While copyright holders naturally want to garner all deserved revenues for their work, educators, researchers, and scholars are entitled to exclusive privileges (fair-use) normally only associated with copyright holders. The understanding of the limits of these privileges has been the focus of much study (Bell, 1980; James, 1981; Clark,1984; Chase, 1989; Crews, 1990).
During the late 1970's, a historical study examined the events that led to the development of off-air guidelines for educators and interpretation of fair use (Bell, 1980). Between 1976 (when the Copyright Act was passed) and 1981 (when the off-air guidelines were developed by congressional subcommittee), there was controversy over the fair-use interpretation of videotape in the classroom. This was a period when 3/4" U-matic videotape equipment was available in the schools, and educators were beginning to learn how to use off-air materials in their classrooms. While some factions called for specific interpretations, others saw no need for the development of a concrete policy (Bell, 1980). By 1981 a congressional committee developed specific guidelines for off-air recording. The majority of producers and educators endorsed these guidelines, and they have become a template for institutional copyright policy (Sinofsky, 1982).
Institutional policy developed during the 1980's reflected an attitude of "legal compliance" and was more concerned about
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avoiding liability than exercising the full potential of fair-use (Crews, 1990). Administrators modeled policies after guidelines developed by congressional reports or by copyright holders themselves. It became easier to duplicate these policies than to understand fully the law and develop their own (Crews, 1990).
Even the professional education media organizations have been guilty of excessive conservatism in their fair-use interpretation. The 1987 brochure "Using Software: A Guide to the Ethical and Legal Use of Software for Members of the Academic Community" published by EDUCOM, a non-profit consortium of 450 colleges and universities committed to the use and management of informational technology in higher education, failed to note a fair-use application for the use of computer software. They expressly recommended that materials could not, and should not, be duplicated under any circumstances.
In the September 1992 issue of Tech Times, the newsletter of the Pennsylvania Association of Educational Communications and Technology, appears an article by Ivan Bender. Bender, the legal counsel for the Association for Information Media & Equipment (a program producer), contends that the repurposing of a videodisc is a violation of copyright, since it would be a derivative work. (Bender 1992, 9)
Gary Becker, a copyright consultant, notes that CAV (constant angular velocity) laserdiscs are designed to be used in a non-linear fashion. These discs are made to be accessed randomly and often only one frame at a time. Therefore, writing a software program to access the disc in a non-linear fashion would not constitute a derivative work. Bender later acknowledged that his lack of understanding of the technology resulted in the misinterpretation. (Ivan Bender, discussion at AECT copyright session, January 15, 1993)
Some media professionals claim that even Becker's stance on fair-use is too conservative. (Edward G. Conway, personal Internet communication, November 24, 1992) Becker advocates a 10/10 policy when interpreting fair-use. 10/10 states that no more than 10% of the original work can appear as more than 10% of
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the final production (Becker, 1992). However, section 107 of the 1976 Copyright Act simply states that "the amount and substantiality of the portion used in relationship to the copyrighted work as a whole" has to be examined. There are no specific quantitative requirements.
Over 15 years ago, Congress passed a major revision of the Copyright Act. The five years following the passage consisted of confusion and debate over the application of those laws to education. The statutes added in 1981 helped alleviate some of the problem, but issues are still being raised. Interpretations of the statutes have not been fully tested by case law, and new technologies continually change the questions being asked.
The educating of academia still needs to be continued. While many educators and media professionals claim to be well acquainted with copyright law, in truth they are still in need of clarification of the more difficult areas (Wertz, 1984). Until they fully understand the law, they will be restricted by conservative policies mandated by copyright producers and academic administrators.
Many institutions have been slow to adopt a specific copyright policy (Becker, 1992). While they have had a general statement that fully endorses the federal law, they have not specified for their faculty what is considered appropriate behavior. By only endorsing the general policy, they have removed the institution from possible litigation and placed the burden of responsibility on the faculty. Any liability would be removed from the institution under most circumstances, since appropriate regulations and procedures were in place.
There are presently efforts underway to establish firmer boundaries of fair-use and to standardize some of the royalty payments due to copyright holders, especially in the area of videotape. Several media professionals are gathering information to attempt to construct a framework that could be presented to producers and legislators. (Jan Sichel, telephone interview, October 2, 1992) No one denies that under many circumstances copyright holders need to be paid for the
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manipulation or retention of their works when used in education. However, on many occasions, the process to legitimize the use is too cumbersome or too expensive. A simplified, consistent system would make compliance an easier and more profitable task for all parties.
Copyright continues to be a major issue in the educational arena. The number of journal articles, conference presentations, publications, and organizational committees continues to increase and reinforce the importance of the issue. Much work needs to be done before all parties can at least be partially satisfied with operational procedures that are used when dealing with copyrights. Hopefully, the future will eliminate much of this confusion as institutions and litigation clarify user practices.
Copyright issues in education is still an area that lacks current research. While there are plenty of articles and publications on developing guidelines and interpreting fair-use, quality research on the status of copyright in education is missing. Studies are needed to more fully understand the transformations that are taking place. With greater emphasis being placed on copyright, perhaps the number of studies will rise.
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