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Copyright, eLearning, And Creativity

Copyright has been an engine for creativity for more than three centuries. Its history is one of continuous evolution in the face of technological change. In today's global environment, eLearning practitioners have unprecedented opportunities to disseminate their creative works and products to a worldwide audience. At the same time, they face daunting challenges as to what materials are protected legally and what kinds can potentially open them up to legal risk. As engagement in eLearning continues to grow, a workable understanding of local and international copyright issues especially regarding its protection and encouragement is essential.
Copyright, eLearning, And Creativity

eLearning And Copyright Issues 

Creativity in the development and dissemination of materials and resources abound on eLearning platforms. Arguably, no prior technological revolution has impacted copyright with a magnitude comparable to the development of the eLearning and mobile learning. Never before has there been such widespread and immediate access to such a broad array of creative works. Never before have content creators ranging from individuals to large corporations been able to reach a global audience so effortlessly and inexpensively and never before has it been possible for members of the public to create, transform, or distribute multiple perfect copies of works seamlessly, without regard to national borders. (Newman, M. & Oliver, N.).

In the eLearning industry, where creativity in the development of materials and resources abound, copyright protection is frequently regarded as a vital factor to be considered and, in some instances, as a potential barrier to making materials available. Copyright protection is about defending and not stifling an author's creativity. It is the art of striking the delicate balance between “protecting and sharing” an author's creative product. However, legal rules concerning copyright protection and encouragement differ from country to country. This article will help equip eLearning professionals and developers with the tools, skills and understanding they need to work confidently and effectively in the virtual learning environment, encouraging the spreading of knowledge and creativity and at the same time doing so legally.

In several nations, the purpose of copyright is set forth in the statutes or case law. In the United States, the broad purpose of U.S. copyright law is set forth in the Constitution.

Specifically, Article I, Section 8 of the Constitution states:

The Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right their respective writings and discoveries.”

Under this broad scope of authority to Congress, the preamble to the copyright and patent clause sets forth the overarching purpose of intellectual property law in the United States. The framers of the Constitution were convinced that the creation and dissemination of knowledge was of critical importance to the new nation and that establishing a national copyright and patent system was an efficient means to advance that goal. However, more than the 200 years later, the broad purpose of U.S. copyright law remains fundamentally the same; to provide the economic incentives for individual creativity to promote the public welfare.  (Shapiro, 2010).

The Supreme Court put it this way; “the immediate effect of our copyright law is to secure a fair return for the author's creative labor”, but the ultimate aim is to stimulate artistic creativity for the general public good. Therefore, we can sum up it up this way: When eLearning practitioners use eLearning platforms to build, create, and promote artistic and creative activities in instructional practices, one of the benefit of copyright law is that it seeks to secure a fair return for an original author's creative labor and at the same time stimulate artistic creativity for the general public good. The U.S. Copyright Act, like the copyright laws of other countries, is effective within the territory of the United States. That is not to say, however, that national copyright laws exist in a vacuum.

Importantly, U.S. copyright law is linked to the copyright laws of other countries through a network of international treaties. These treaties establish both minimum standards for protecting works under domestic law and for extending protection to the works of other treaty members under the principle of national treatment. National treatment requires a country to accord nationals of other countries that are members of the same international conventions no less favorable treatment than it accords its own nationals.

But what about protecting the creative efforts of eLearning practitioners as they disseminate their creative materials and resources online and across global lines? In a broad sense, the local copyright act of the nation where its eLearning creator operates governs the protection of copyrighted creative materials. In instances however, where there are more than one author or creators of copyright materials that are offered on a global scale, as a basic rule, the norms and standards of international treatise of copyright applies.

What Is Copyright? 

Copyright protects any piece of original work as soon as it has been recorded either on paper, in an audio recording, on film, or electronically (including on the Web). Copyright exists to allow creators to control the use of their work. It also allows them to benefit financially from their work and enables them to assert their moral rights to be recognized as the author of their piece of work.

Creativity, Copyrighted Materials, And The eLearning Context

In the United States, the Constitution outlines both the goal of copyright providing incentives for authors to create and disseminate their works and the means to accomplish it providing for limited term exclusive rights, subject to exceptions and limitations.

The invitation to creativity of U.S. copyright law for the public benefit is open to artists, authors, and companies around the world. From this provision in the law, the U.S. courts have derived the two fundamental requirements for copyright protection namely: Originality and creativity and fixation in a tangible form.

The subject matter eligible for protection of copyright is set forth in the U.S. Copyright Act:

"Copyright protection subsists in original work of authorship fixed in any tangible medium of expression now known or later developed from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.  In very general terms original works of authorship refer to a broad range of creative expression."

Such creative works include literary, dramatic, musical and artistic works including books, plays, lyrics, paintings, video games and software. But not all creative works are eligible for copyright protection. From this provision in the law, the U.S. courts have derived the two fundamental requirements for copyright protection. They are:

  1. Originality and creativity. 
    The requirements of “originality” are relatively easy to satisfy. To be original, the work merely must be one of independent creation; that is, not copied from another.  However, there is no requirement that the work be novel as in patent law, unique or ingenious or even have aesthetic merit. To be creative, there must only be a modicum of creativity. The level required is very low, even a slight amount will suffice.
  2. Fixation in a tangible form.
    Under the Berne Convention for the protection of literary and artistic works, the leading copyright treaty, Berne member countries have the option of requiring fixation as a condition of copyright protection. The United States has chosen to invoke that option in its domestic law. Under U.S. copyright law, a work must be fixed in a tangible medium of expression. The form, manner, or medium of fixation used makes little difference. The medium cannot be  known or can be later developed. A literary work, for example, can be fixed in a book or on the back of an envelope. A musical work can be fixed in sheet music, on tape, a CD, and in many other media. A work of visual art can be fixed on a canvas; a sculptural work in stone. Our next question is: How long must the fixation last to count as a copy eligible for copyright protection? Under the U.S. Copyright Act, the answer is "for a period of more than transitory duration". Conversely, works that are purely evanescent or transient, such as an image briefly projected on a screen are not sufficiently fixed to qualify for federal copyright protection.  Under these standards, creations such as a live broadcast of a radio or TV or an extemporaneous speech would be too fleeting to be protected.

International Copyright Provisions And eLearning

The Berne Convention defines copyrightable subject matter broadly to include every production in the literary, scientific and artist domains; whatever may be the mode of form of expression.

Updating the Berne subject matter, the World Trade Organization Agreement on Trade‑Related Aspects of Intellectual Property, commonly known as the TRIPS Agreement, expressly includes computer programs and compilations of data. The U.S. Copyright Act lists categories of works as examples of works of authorship that may be eligible subject matter for copyright protection.

The first category is literary works. This extremely broad category of works extends to almost anything that can be expressed in words, numbers or other verbal or numerical symbols. The category includes books, periodicals and manuscripts, but also extends to computer programs.

The next category is musical works including any accompanying words. A musical work consists of the musical notes and lyrics, if any, in a musical composition.  It's important to distinguish the copyright in the musical composition which is typically owned by the composer or music publisher from the copyright in the sound recording, which is usually owned by the recording company.

Dramatic works including and accompanying music are our next category.  A dramatic work which may include any accompanying music is one that portrays a story by means of dialogue or acting and that is intended to be performed.

It gives directions for performance or actually represents all or a substantial portion of the action as actually occurring, rather than merely being narrated or described.

The U.S. Copyright Office defines choreography as the composition and arrangement of dance, movements and patterns usually intended to be accompanied by music.

Copyright Ownership, Creativity, And Transfer In The eLearning Context

The ownership of copyright's exclusive rights and transfers of those rights are important for authors and companies. The U.S. Copyright Act recognizes three categories of copyright ownership: Individual authors, joint authors and works made for hire.

The basic rule in the United States is that copyright initially belongs to the individual author. The author is the person who conceives the work and fixes its expression in a tangible medium. Under the Copyright Act, a joint work is a work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unitary hold.

Joint authors are the co‑owners of their work which means that each owns an undivided share in the copyrighted work. Either co‑author is free to exercise any of the exclusive rights of copyright, even without consulting with the other. However, neither co‑author may grant an exclusive license without the consent of the other or do anything to destroy the value of their joint work. Under certain circumstances in U.S. law the copyright in a work is not initially granted to the actual preparer of the work. In the case of works made for hire, the employer of the preparer of the work is considered the author for purposes of the Copyright Act.

There are two types of works made for hire: Those prepared by an employee and those prepared by an independent contractor by special order or commission. Under U.S. copyright law any of the exclusive rights of the copyright owner may be transferred. In general, there are few formal requirements; however, exclusive licenses and assignments of copyright which are regarded as property interests must be in writing.

Creative Implications For eLearning Professionals: Using Copyright Material

  • Your own work.
    If your online course is to consist only of work created by you (lecture notes, reading list, etc.), there is no need for further action with regard to checking copyright. There are some grey areas, the most notable being SLIDES from your own lectures. If the slides contain only material for which you hold the copyright (text written by you, images you have created, e.g. diagrams, photos, etc.) they can simply be added to your online course. If they do contain any third party material (the most common culprit being images), you will need to obtain copyright permission to use materials which belong to other individuals or organizations.
  • Government and international organizations.
    The majority of publicly funded bodies allow the re-use of their published materials for educational purposes. It is usually not permitted to download and store pdf versions of these material without permission, instead organizations suggest that links be incorporated into the online learning environment. Please consult an organization's "copyright" or "acceptable use" policy, which will be available on their website for further information.
  • Material from websites.
    The ability to link to material on websites is one of the fundamental aspects of the web. While there are no legal considerations when linking to other sites, it is worth bearing in mind the following good practice guidelines: When linking to a resource available on the web, try to avoid "deep-linking" (linking directly to the material). This by-passes the organization's homepage, which often provides a context for the material. In addition, deep links tend to be less stable - material is often moved or taken down. Ensure that links to external sites open in a new browser window. This makes it clear that the student is leaving your course environment to visit another site.
  • Obtaining copyright.
    Course designers are reminded of the necessity of obtaining copyright permission for any third party material before they make their course available to students. Obtaining copyright permission can take time. We recommend that rights-holders are contacted at least 4 weeks before the material in question is needed.
 
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