Office of the General Counsel

Copyright Law and Distance Learning(1)


Contents

Introduction

The explosion of distance learning programs is changing not only the fundamental paradigms of how higher education is delivered, but also the traditional notions of how courses are created and owned. Traditionally, institutions of higher education have relinquished to their faculties any claim to the intellectual property rights in course materials (usually textbooks) created on campus. This has been done partly as an incentive and partly because the economic value of those rights has generally been small. In contrast, the same has not been true in the case of patentable inventions where the potential for economic gain is large and the investment of institutional resources is significant. Unlike traditional courses, distance learning offerings require a much greater investment of institutional resources and, like patentable inventions, bear a much greater market potential. For this reason, institutions of higher education are beginning to reevaluate their copyright policies, and a new debate between faculty and administration is taking shape. This paper explores the impact of copyright law on that debate.

Following a discussion of basic copyright law principles, this paper will address intellectual property issues involved in the creation, ownership, and distribution of distance learning courses.

Copyright Law Basics

The following questions will be answered in this section:

  • What is a copyright?
  • What may be copyrighted?
  • How may a copyright be obtained?
  • How long does a copyright last?
  • Who owns the copyright to a particular work?
  • What constitutes an infringement of a copyright?

What Is a Copyright?

A copyright is a federally created property interest in an "original work of authorship"(2) that has been "fixed in a tangible medium."(3) It is actually a "bundle"(4) of five exclusive rights which include the right to (1) reproduce the work in copies, (2) prepare derivative works (adaptations), (3) distribute the work by sale, rent, lease or lending, (4) perform the work, and (5) display the work.(5) The owner of the copyright may dispose of these rights either as a group or individually.(6) Any of the rights may be sold outright, "licensed," or given away. A license is simply permission given by the copyright owner to another person to reproduce, display, copy, etc. the work and may be either exclusive (no one else will get a similar license) or non-exclusive.

What May Be Copyrighted?

Broadly speaking, any original work of authorship that has been fixed in a tangible medium may be copyrighted. Section 102(a) of the Copyright Act(7) defines works of authorship to include:

  1. literary works, e.g., novels, poetry, textbooks, and manuals;
  2. musical works, e.g., songs and jingles;
  3. dramatic works, e.g., plays and operas;
  4. pantomimes and choreographic works, e.g., a modern dance piece or a ballet;
  5. pictorial, graphic, and sculptural works, e.g., photographs, charts, and statues;
  6. Motion pictures and other audiovisual works e.g., movies and documentaries;
  7. Sound recordings, e.g., recordings of music, sounds, or words.(8)

Critical to an understanding of what may be copyrighted is an understanding of what may not be copyrighted. The Copyright Act specifically provides that protection does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery"(9) As an example, Shakespeare could not have copyrighted the idea of forbidden love. However, the expression of that idea in "Romeo and Juliet" would be copyrightable.(10) These exclusions exist as matters of public policy since, if an idea could be copyrighted, whole genres of work would be eliminated in contravention of the purpose of copyrights which is to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."(11)

Facts are also not copyrightable. There must be some creative element present in the work before the protections of the Act will be applied. For example, in Feist Publications, Inc. v. Rural Telephone Service,(12) the United States Supreme Court refused to recognize a copyright in a telephone book, holding that there was nothing "remotely creative" about arranging names of subscribers alphabetically. On the other hand, a unique combination of factual elements such as a listing of Chinese-American Businesses in both English and Chinese could well be considered to constitute a "creative," and therefore copyrightable work.(13)

How May a Copyright Be Obtained?

There seems to be a common misconception that in order to obtain a copyright one must hire an expensive lawyer who will create complicated and mystical paperwork to be filed in some federal office at huge expense. Further, it is assumed, some special combination of symbology and verbiage must appear on every publication, or copyright will be forever lost. However, nothing could be farther from reality. The truth is that copyright is automatically conferred at the moment that the work becomes "fixed" in a "tangible medium."(14) In addition, for works created on or after 1 March 1989 the familiar copyright symbol, "©", need not appear at all.(15) However, registration is a prerequisite to filing a lawsuit for infringement,(16) and registration must have been made prior to the date that the particular infringement in question occurred in order to collect damages (as opposed to injunctive relief) from the infringer.(17) Registration is made by filing an application with the Register of Copyrights at the U.S. Copyright Office of the Library of Congress, paying a small filing fee and depositing copies with the Copyright Office. More information is available at the Copyright Office's website.

As noted earlier, copyright attaches to a work the instant it becomes "fixed in a tangible medium." A work meets this requirement when it is recorded in some manner, e.g., written down, digitized, or recorded on videotape, so that it can be seen or reproduced for more than a short, transitory time.(18) A work consisting of sounds and/or images that is being transmitted (e.g. the Monday night football game) is sufficiently "fixed" if a recording is made simultaneously with the transmission.(19) A few courts have held that works which exist only in a computer's random access memory (RAM) are sufficiently fixed in a tangible medium even though the work disappears when the computer is turned off because, while in RAM, the work can be displayed or printed out almost instantaneously.(20)

How Long Does a Copyright Last?

The duration of a copyright varies greatly depending on the year in which it was created or published because the law has been amended several times, most recently in October 1998.(21) Currently, a copyright lasts for the life of the author plus 70 years. If the work is one that is created for someone else (a "work for hire") or if it is anonymous or pseudonymous (i.e., pen name), it lasts for 95 years from the year of first publication or 120 years from the date of creation, whichever expires first. Publication includes loaning, leasing, selling, or giving away copies of the work. Interestingly, a satellite broadcast of a work may be a "public performance," but it is not considered to be "publication" unless copies of the program are made and distributed.(22) A more detailed description in an easy to read table may be found at this website created by Lolly Gassaway of the UNC Law School Library.

Once a copyright expires the work belongs to the "public domain" and may be used freely by anyone. The author may also put the work into the public domain before expiration of the statutory period by expressly saying so.

Who Owns the Copyright?

It seems, at first blush, that this ought to be a simple question to answer. However, it can actually become extremely complex. The simplest case is the single author who is working on his or her own. In that case, the author has sole ownership of the copyright.(23) The case becomes more complex when more than one person contributes to the work. If the work is a "joint work," i.e., a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole, then the law presumes that each is a co-equal owner of the copyright, regardless of the differences in each author's contribution.(24) This means that either author can dispose of any or all of the bundle of rights subject only to an accounting to the other author(s) for division of the proceeds. On the other hand, if the work is a "collective work" such as an anthology or encyclopedia in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole, then each contribution belongs to the contributor while copyright of the collective whole may belong to someone else.(25) The owner of the collective work has the limited right to reproduce and distribute the contributions as part of the collective work and to make revisions to the collective work.(26)

When an employee creates a work on the employer's time and/or using the employer's resources, the law defines the work as a "work made for hire" and vests the copyright in the employer.(27) On the other hand, if a person is hired as an independent contractor to create a work, the contractor owns the copyright unless it is a contribution to a collective work, a translation, a supplementary work (e.g., a forward), a part of a movie or other audiovisual work, a compilation, an instructional text, a test, answer material for a test, or an atlas, and there is a signed written agreement stating the work is a work made for hire.(28) The determination of whether an author is acting as an employee or an independent contractor involves a multi-factor analysis and can become quite complex in and of itself.

Given the potential complexities of applying the Copyright Act in this area, the best policy is to have a written agreement up-front, which settles the ownership questions.

Finally, it is important to understand the difference between ownership of the work and ownership of the copyright to that work. For example, when you buy an original painting, unless the artist expressly conveys her copyright to you, in writing, you own the object only. You have no right to make copies or to publicly display the painting.(29)

What Constitutes an Infringement of a Copyright?

Each of the rights that are included in the bundle of rights described previously belongs exclusively to the owner. Anyone who tries to exercise any of those rights without permission is an infringer. Infringement, even if done unknowingly, can be remedied in the courts by relief ranging from an injunction all the way up to hefty fines and criminal penalties (if the infringement was done willfully).(30) For this reason infringement of a copyright is known as a "strict liability offense."(31) Additionally, anyone who helps or makes it possible for another to infringe upon a copyright may also be held liable under a legal doctrine known as "contributory infringement."(32)

There are more myths about defenses to infringement than there are actual defenses. Some of the more common myths are: (1) that a work isn't copyrighted if it doesn't have a copyright notice on it; (2) using small parts of a work is not infringement; (3) it is alright to copy a work if you give the author(s) credit; and (4) if the original is modified by the addition of something creative, it is a new work and not an infringement.(33) Each of these myths has been debunked in the preceding sections of this paper. As we have seen, it is not necessary to affix a copyright notice to a work in order to preserve the copyright. Using any part of a copyrighted work is an infringement unless it qualifies under the "fair use" exception, which will be discussed later. Giving an author credit may avoid an academic charge of plagiarism, but it won't trump a lawsuit for infringement. Finally, modifying an original work violates the author's exclusive right to create derivatives.

The so-called "fair use" exception is contained in Section 107 of the Copyright Act.(34) To qualify for this exception the work must have been created for purposes such as criticism, comment, news reporting, scholarship, or research AND (and this is a very big AND) it must satisfy a four factor analysis which looks at:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work (is it highly creative or just a rendition of facts?);
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (did you copy a whole article or book chapter?); and
  4. The effect of the use upon the potential market for or value of the copyrighted work (will people just read your copy rather than buy the original?).

A detailed description of the application of these factors is beyond the scope of this paper. Suffice it to say that the analysis is highly "fact-bound" which, in turn, means that prior cases have little or no predictive value. As a result, there have been attempts by publishers, educators and other interested parties to develop fair use guidelines to create a "safe harbor" within which a person can reproduce copyrighted material without fear of being sued.(35) Although these guidelines have been criticized by librarians and others as being far too restrictive, some courts have relied heavily on them in cases involving the creation of course packs for college students and for the distribution of scientific articles within a corporation. In both cases the copying was held not to constitute a fair use.(36) There has also been an attempt by the Conference on Fair Use (CONFU) to develop a set of fair use guidelines for distance learning, but there was no consensus and the guidelines have not been finalized.(37) The proposed guidelines have been criticized for being limited to live, interactive courses and for failing to address asynchronous courses (courses which are delivered to a student at a time subsequent to the lecture or teaching event).(38)

The bottom line is that fair use is a tricky defense and it is always safer to get permission if you can.

Application of Copyright Law to Distance Learning

The creation of a distance learning course implicates most, if not all of the copyright basics we have just discussed. In particular, because distance learning courses often incorporate multimedia and may have several contributing authors, the questions of ownership and infringement can become quite complex.

Ownership of Distance Learning Courses

When a faculty member creates course materials including a textbook, tests, answer sheets, etc., copyright attaches the instant the material is put down on paper, recorded on tape or saved in a computer's memory. Who owns the copyright? Is it the faculty member or the college? As noted in the discussion of the "work made for hire" doctrine, if the faculty member created the course materials on college time, using college resources, or as part of the faculty member's job description, then, nothing else appearing, the copyright belongs to the college. However, most colleges have adopted policies relinquishing the copyright back to the author. This has been done for several reasons including providing an incentive to faculty, as a recruitment tool, and because the college's investment of resources is relatively small. Additionally, there is usually only a small market for those materials, and the college has not lost much by giving the copyright to the author. In contrast, the college's investment of resources in the development of a distance learning course may be great, and the potential market for the course is much expanded over the traditional classroom. This has caused some colleges to reevaluate their copyright policies and make them look more like patent policies in which the college retains the patent but shares net profits with the inventor according to a formula. Other schools are writing contracts for the creation of specific courses, which expressly state that the material will be considered a work made for hire. The University of Texas System, Office of General Counsel web site has excellent examples of various contracts between the institution and the creator(s) of educational course materials.

At a minimum, the copyright issues that should/must be addressed either in the institution's policy or its contract include:

  • Who owns the copyright?
  • How will any net profits be divided?
  • Will the institution retain a non-exclusive right to use the materials (also sometimes referred to as "shop rights")?
  • Who has the right to update or modify the materials and to create derivative materials?
  • If the faculty member/author leaves the institution, will he or she be able to use the materials to teach the course at a new college or to compete with the old institution in the distance learning market?
  • Will the author warrant that the materials which he or she has used are either original, or not in violation of a pre-existing copyright?

Additionally, in the event that the course is created as a collaborative effort, the agreement should define the works as either a collective work, a joint work, or a work made for hire and the agreement should clearly state the rights that each contributor holds individually or assigns to the institution. Recall that in the case of a joint work, nothing else appearing, each contributor is presumed to be an equal co-owner with full authority to dispose of the copyright (or any one or more of the bundle of rights) subject only to an accounting to the other authors for the proceeds. This can lead to intolerable confusion about later revisions, use of the course at other schools, etc. and is the reason why the rights of each contributor should be specified in writing.

In the process of identifying joint authors, it is important not to overlook the possibility that students, especially graduate assistants, may have rights lurking in the background.(39) In Seshadri v. Kasraian,(40) the Seventh Circuit Court of Appeals held that a graduate student was a joint author of a professional article with his professor where the professor acknowledged that the student authored the first draft of five pages of the thirteen page article including some highly technical graphs. The professor's claim of copyright infringement against the student was dismissed. Others who may have rights in a multimedia course are graphic artists, creators of photographs, videos, music or sounds, webmasters, etc.

Questions of Infringement

Infringement in the distance learning context comes in two flavors, (1) infringement OF the author(s)' copyright and (2) infringement BY the author(s) of another's copyright when creating the course materials.

Infringement of the author(s)' copyright

Infringement of the author(s) copyright in distance learning materials is actionable. As we discussed earlier, before an action for infringement may be brought, the work must be "fixed," and the copyright must be registered with the Copyright Office. Fixation is usually not in question since the creation of the materials ordinarily involves recording the materials either in written text or in some magnetic or digital medium. However, where a lecture is to be broadcast live either by television or by computer video conferencing, a recording needs to be made simultaneously with the broadcast in order to "fix" the lecture.(41) As an example, those of you who watch sports events on television have undoubtedly heard the announcer say that a simultaneous recording of the broadcast is being made by the producer and no copies or rebroadcast may be made without the producer's permission. The courts have held that a work consisting of sounds, images or both that is being transmitted is sufficiently "fixed" if a recording is made simultaneously with the transmission.(42)

The practical problem the authors of a distance learning course face is one of simply finding out that the copyright has been infringed. When material is published on the Internet it has a potentially worldwide audience. Downloading and copying from the Internet is very easy and can be done without leaving much of a trace. For this reason, access to the course should be password protected. Another good idea is to periodically search the Internet, using a search engine such as Alta Vista, using the name of the course or author(s) to see what turns up.

Infringement by the course creator(s)

Infringement by the author(s) of another's copyright is a real danger in the creation of distance learning materials, especially those that use a variety of media such as text, graphics, sound and video. Except for those materials created in the original by the author(s), any pre-existing work that is incorporated (or modified for incorporation such as by creating a thumbnail image from an original) is likely to be subject to a preexisting copyright (unless it is in the public domain). In the absence of obtaining permission from the copyright owner, the author(s) may be able to argue that the piece falls within the fair use exception. However, as discussed earlier, this is a tricky road fraught with legal land mines. Publishing material on the Internet adds a whole new dimension to the equation. Whereas it may be permissible to distribute a handful of copies of an article to a small class for discussion purposes, when that same article is posted on the Internet the potential audience could be in the millions. This, in turn, logarithmically increases the potential for adverse impact on the market for the work - one of the four factors relied upon by the courts to determine whether a use is "fair." Again, the best protection, short of obtaining permission, is to password protect the course materials, and to remove them from the Internet as soon as they are no longer needed.

Another example of something that may be a "fair use" in a traditional classroom but that may not qualify in a distance learning environment is the display of pictures, animations and video clips. Section 110(1) of the Copyright Act generally permits such use in the face-to-face classroom setting.(43) However, transmission to students at a location remote from the teacher in place or time is limited to "nondramatic" literary and musical works.(44) Motion pictures and videos are excluded from the definition of literary works and thus may not be used without permission. As examples, a professor could read a passage from Scott Turow's "Presumed Innocent," but could not show a clip from the movie as part of a distance learning program. Additionally, when transmission is allowed, it must be to a place that is either a classroom or similar place normally devoted to instruction. Perhaps as distance learning becomes more "traditional" the student's home will qualify, but it doesn't at this point in time.

Earlier in this paper we debunked certain myths about copying traditional types of works. New myths have arisen around the Internet. The one most commonly heard is that anyone who puts material on the web wants people to use it and therefore has granted at least an implied license to copy the material. This is unequivocally untrue. The rules of copyright don't change simply because of the medium used to express an idea. Unless the author explicitly states that the work is being placed in the public domain, the author's copyright exists and is enforceable. Another myth is that it is okay to copy material onto your website as long as you give appropriate credit and don't charge people to access your site. Again, giving credit may avoid a charge of plagiarism but it is no defense to infringement. Further, giving away someone else's work for free is certainly no defense to infringement since it probably does more damage to the author's market for his or her work than if you had charged a fee.

The Digital Millennium Copyright Act of 1998 and Protection for ISPs

You will recall that infringement of a copyright is a strict liability offense, meaning you can be held liable even if you didn't know you were infringing. This caused many institutions (including colleges and universities) that operate the Internet servers upon which materials are placed by faculty, staff and students, to be concerned about their liability for contributory infringement. Additionally, these Internet service providers (ISPs) were concerned about liability for wrongfully removing material in response to a claim of copyright infringement, which may later be proven invalid. In October of 1998 President Clinton signed into law the Digital Millennium Copyright Act of 1998 (DMCA). (45)Title II of the DMCA creates a new section 512 of the Copyright Act, which provides a sort of immunity for Internet service providers (ISPs) if certain conditions are met. In a nutshell, the ISP must (1) implement a policy that it will terminate the access to the server by infringers in "appropriate circumstances' defined by the law, (2) accommodate and not interfere with technology developed to identify and protect copyrighted works, and (3) the ISP must designate an agent to receive notices of claimed infringements. Additionally, Section 512(e) creates special protection for nonprofit educational ISPs when a faculty member or graduate student employee infringes a copyright in the course of "performing a teaching or research function." The conditions attached to this special protection are that (1) the faculty member or graduate student employee's infringing activities do not involve providing online access to instructional materials required or recommended for a course taught at the institution by the employee within the preceding three years (i.e. the work must be fresh), (2) the institution within the preceding three years received no more than two notifications of claimed infringement by the employee, and (3) the institution provides all users with information describing and promoting compliance with copyright. With respect to this last item, the legislative history makes it clear that an ISP may comply by providing access to guidelines or other materials prepared by the Register of Copyrights.

The Future

Section 403 of the Digital Millennium Copyright Act requires that the Copyright Office consult with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, and thereafter submit to Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the interests of users. Such recommendations may include legislative changes. Section 403 requires the Copyright Office to submit its recommendations to Congress no later than April 28, 1999. Here is the schedule of important dates for that process..

Conclusion

The creation of distance learning courses is subject to the same copyright laws as any other work. However, the technology used to create, record and transmit distance learning materials presents the old issues in new ways. The best strategy is to educate faculty about the issues and to write polices and contracts that answer the questions before pen is set to paper or electrons are stored on a hard drive.

Lucien Capone III
University Counsel
The University of North Carolina at Greensboro
15 January 1999


FOOTNOTES

1. Although the terms distance education and distance learning are often used interchangeably, the author prefers the term distance learning because it emphasizes the shift of focus from the classroom and teacher to the learner, which is the real revolution in higher education being engendered by computer mediated technologies.

2. 17 U.S.C. 102 (1995). The federal creation and protection of intellectual property finds its genesis in the United States Constitution where Congress is directed to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." U.S. Const. art. I, 8, cl. 8. Because Congress has "preempted the field" of copyright regulation, states are not permitted to regulate, or legislate matters which are encompassed within copyrights. 17 U.S.C. 301 (1995); Maljack Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881 (9th Cir. 1996); Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993).

3. Id.

4. H.R. REP. NO. 94-1476.

5. 17 U.S.C. 106 (1995).

6. 17 U.S.C. 201(d) (1995).

7. 17 U.S.C. 102(a) (1995).

8. J. Dianne Brinson and Mark F. Radcliffe, An Intellectual Property Law Primer for Multimedia and Web Developers, (1996).

9. 17 U.S.C. 102(b) (1995).

10. See also, Balkin v. Wilson, 863 F.Supp. 523 (W.D. Mich. 1994) (college professor who provided ideas and concepts for songs to another professor as part of a joint project did not make sufficient contribution to the songs to make the professor a co-author for copyright purposes.)

11. U.S. Const. art. I, 8, cl. 8.

12. 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

13. Key Publications, Inc. v. Chinatown Today Pub. Enterprises, Inc., 945 F.2d 509, 1991 (2d Cir. 1991). See also, Publications Intern., Ltd. V. Meredith Corp., 88 F.3d 473 (7th Cir. 1996); Harbor Software, Inc. v. Applied Systems, Inc., 925 F.Supp. 1042 (S.D.N.Y. 1996)("[P]rotection afforded to compilations is thin and extends only to expression contained in selection, arrangement or sequence of work's structural elements that are not otherwise independently protectable").

14. 17 U.S.C. 408 (1995); Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529 (11th Cir. 1994).

15. 17 U.S.C. 405; Charles Garnier, Paris v. Andin Intern., Inc., 844 F.Supp. 89, (D.R.I. 1994).

16. 17 U.S.C. 411 (1995).

17. 17 U.S.C. 412 (1995); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990).

18. 17 U.S.C. 101 (1995).

19. Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663 (7th Cir. ), cert. denied, 480 U.S. 941, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1986).

20. MAI Systems corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), cert. dismissed, 510 U.S. 1033, 114 S.Ct. 671, 126 L.Ed.2d 460 (1994); Marobi-Fi, Inc. v. National Ass'n of Fire and Equipment Distributors and Northwest Nexus, Inc., 983 F.Supp. 1167 (N.D.Ill. 1997); Advanced Computer Services of Michigan, Inc. v. MAI Systems Corp., 845 F.Supp. 356 (E.D.Va. 1994).

21. 17 U.S.C. 302 as amended by the Copyright Term Extension Act of 1997, Pub. L. No. 105-298 (27 Oct 98).

22. 17 U.S.C. 101 (1995).

23. 17 U.S.C. 201(a) (1995).

24. U.S. ex rel Berge v. Board of Trustees of the University of Alabama, 104 F.3d 1453 (4th Cir.), cert. denied, 118 S.Ct. 301, 139 L.Ed.2d 232(1997); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994).

25. 17 U.S.C. 201(c) (1995).

26. Id; Oddo v. Ries, 743 F.2d 630 (9th Cir. 1984).

27. 17 U.S.C. 101, 201(b) (1995).

28. 17 U.S.C. 101 (1995).

29. 17 U.S.C. 202 (1995).

30. 17 U.S.C. 501-511 (1995).

31. Sega Enterprises Ltd. v. Maphia, 948 F.Supp. 923, 932 (N.D.Cal. 1996).

32. Sony Corp. v. Universal Studios, 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984).

33. J. Dianne Brinson and Mark F. Radcliffe, An Intellectual Property Law Primer for Multimedia and Web Developers, (1996).

34. 17 U.S.C. 107 (1995).

35. For copies of the guidelines dealing with classroom copying, multimedia, music and off-air recording of broadcast programming for education purposes see,
http://www.utsystem.edu/OGC/INTELLECTUALPROPERTY/clasguid.htm.

36. Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, 1390, (6th Cir. 1996), cert. denied, 117 S.Ct. 1336, 137 L.Ed.2d 495 (1997)("Although the Classroom Guidelines purport to 'state the minimum and not the maximum standards of educational fair use,' they do evoke a general idea, at least, of the type of educational copying Congress had in mind."); American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1995), cert. dismissed, 516 U.S. 1005, 116 S.Ct. 592, 133 L.Ed.2d 486 (1996).

37. A copy of the Guidelines is attached. It, along with other CONFU materials may be accessed at: http://www.ninch.org/programs/copyright/fairuse/

38. Association of Research Libraries, Distance Learning Fair Use Guidelines; A Summary of Concerns, (1997).

39. Care should be exercised when negotiating the student's rights because of the inequality in bargaining power between students, faculty and institutional administration.

40. 130 F.3d 798 (7th Cir. 1997). In a somewhat humorous vein the Court rejected the professor's argument that the student's work was so bad he shouldn't be considered a joint author. The court remarked that "a joint author does not lose his copyright status by being a lousy scholar; were that the rule, rights of joint authorship would be in legal limbo." Id at 802.

41. 17 U.S.C. 101 (1995).

42. Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663 (7th Cir.), cert. denied, 480 U.S. 941, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1986).

43. 17 U.S.C. 110(1) (1995).

44. 17 U.S.C. 110(2) (1995).

45. Pub. Law 105-304.