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Copyright and Fair Use Article

Congress has, for the last several years, been involved in drafting, proposing, and in some cases passing legislation that pertains to electronic copyright, privacy and safety. In some instances, the judicial branch has struck down such legislation on the basis of freedom of speech and expression -- encryption is an example. In 1998, the 105th Congress passed two bills to amend the 1976 Copyright Act. The first was the Digital Millennium Copyright Act (DMCA), intended to update copyright law for the digital age. The second was the Sonny Bono Copyright Term Extension Act, which gives copyright owners another 20 years of copyright protection for their works.

The Internet is international and copyright, for the most part, is national. The World Intellectual Property Organization has treaties that protect software and other digitized content, but not all countries have ratified these -- the U.S. just did a few years ago. So, on the Internet, whose law is followed?

Copyright and fair use are not new, but how the law is applied to electronic transmissions and the posting of copyrighted material is being decided by the courts. EMI Music Publishing took the University of Nevada at Las Vegas to court over posted guitar scores (1996). The University removed the site. Playboy Enterprises, Inc. (1993) and Sega Enterprises, Ltd. (1994) each took separate bulletin board services to court for transmitting copyrighted materials.

There are a number of myths about copyright and the Internet. Myth -- everything on the Internet is free for the taking and can be used any way I want. E-mail messages, for instance, are automatically copyrighted by their author. Even though a web page may not have a copyright notice, that does not mean it is not protected.

Several court cases in California and Virginia have defined "viewing a web page" as a violation of copyright (reproduction of an author's work). Since a web page is stored in RAM and on the hard drive of a computer (and it is more than momentary), the web page contents have been reproduced. It is unlikely that the author made the site accessible to the general Internet community with the expectation that he/she would have to give permission to each individual that would want to view the site. But this does indicate the seriousness of the courts in protecting works published in electronic form.

Other myths include: I am only using a small part so the author will not mind; I will give the author full credit so he will not care; and the author will thank me for publicizing his work. If you want to use copyrighted material then get permission. If you are not sure about the copyright then check.

There are software products available that let you save web pages (actually entire sites) and view them later (offline viewing). Some of these software packages will even let you create a presentation of sites. Is it legal to use saved web sites in the classroom? In general, the answer is yes under the fair use clause of current copyright law. The purpose of the use, the nature of the work, the amount of the work used and the effect of the use on the market value of the work are all considered.

Many school home pages use graphics and clip-art to enhance the page. Check very carefully that what you are posting is not a copyrighted graphic. Although you may have purchased the CD-ROM or disk that has these pictures, it does not mean that you have permission to use them on the web. Some of these companies pay the artist based on distribution and this electronic redistribution is not covered. Get out the license agreement and read it. If it says "no distribution in electronic form" or "no digital reproduction" then you cannot use it. "Royalty free" may or may not allow you to use it on a web site. If you are in doubt, contact the company. Newer packages are being marketed for web use.

To protect works that students or teachers publish online, put a copyright notice on it and register with the U.S. Copyright office. Registering does cost but will give you additional rights under the law.

Any information used from the Internet in reports or presentations should be properly cited, just as they would be for any other source. Several guides are available online to help with the correct format in citing Internet references.

Software on the Internet can be found that is public domain, freeware, shareware, or even commercial (some illegally). Just because it is there does not mean that you can download it and use it freely. You should also check all downloaded files for viruses.

The Internet is rich in resources -- text, graphics, music, video, software, etc. -- which can be easily downloaded to your computer. Some of these are clearly marked as copyright protected and some are not. In some cases, even though the materials are copyright protected, permission is given to educators and students to use in the classroom for presentations and reports. Check the copyright of anything you get from the Internet before you use it on your web page or in the classroom. If you ask the author, many of them will give you permission to use their materials in an educational setting.

Electronic copyright law is a hotly debated topic and is still in the process of being formed. The above discussion indicates some of the issues as they stand today. Several sites on the Internet post both legal documents and discussions of current copyright, intellectual property, and fair use.