Running head: COPYRIGHT CASE REVIEW

Copyright Case Review

Kay L. Venteicher
University of Maryland University College
DETT 611
March 22, 2015

COPYRIGHT CASE REVIEW

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Copyright Case Review

Advances in internet technology and enhanced educational technology tools provide an

increasing necessity for education institutions to develop and provide copyright and intellectual
property policies. While copyright law could be viewed as a daunting insurmountable hurdle for
academia, the four factors of fair use provide exceptions to the copyright law to use protected
works in other settings including scholarship, research, and educational use, which does not pose
an infringement on the copyright of created works. The four factors of fair use are:
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;
3. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
4. The effect of the use upon the potential market for or value of the copy-righted
work (U.S. Copyright Law, 17 USC 107, Limitations on exclusive rights: Fair
use, 2011, p. 19).
The copyright law fair use factors provide a balance between the rights of the copyright owner
and the benefit to society. The purpose of fair use was to provide for a means of criticism,
comment, news reporting, teaching, scholarship, or research, of the copyrighted works (p. 19)
without being an infringement of copyright.
Faculty, staff, and students can be greater prepared to use copyrighted works by
embracing the knowledge of the education institution policies, the basics of copyright law, and
the fair use factors. The two scenarios could easily play out in any academic setting. This paper

COPYRIGHT CASE REVIEW

will analyze the scenarios as each pertains to copyrighted material and the policies and issues
that surround each scenario.
Case Scenario 1: A faculty member takes the best student papers each semester and creates an
online journal that he makes available to students in subsequent semesters to show them
examples of good papers.
Copyright Ownership Questions/Assumptions
Many questions require answers to determine if this case scenario is fair use or not fair
use. Questions that require answers include who is the copyright owner of the student written
papers and the background or reason why the paper was written (i.e., assignment, submission for
publication, hired to write academic examples). The first assumption is that in the school policy
the student retains the copyright ownership of their intellectual property and that the papers were
by either current or former students of the faculty member. The second assumption is that the
faculty member posts the best student papers from each semester to the faculty members
personal online journal for use as assignment examples to show future students and supplies
adequate attribution to each work.
The use of the student papers, whether in the traditional classroom or distance education
setting, would require permission from the student. The Copyright Act of 1976, the Digital
Millennium Copyright Act (DMCA) of 1998, and later the Technology, Education, and
Copyright Harmonization (TEACH) Act of 2002 provide copyright protection of the student
papers (Copyright, 2005, para. 3-5; Statement of Marybeth Peters, 1999, para. 18-21).
University of Maryland University College (UMUC) addresses this topic in UMUCs Policy
190.00 Intellectual Property (2002) which states that without the use of Unusual University
Resources, the student shall retain all rights to copyright of the student intellectual property

COPYRIGHT CASE REVIEW

(para. 29). As another example, Winthrop University states in the institutions Intellectual
Property Rights Policy (2003) that faculty must receive written permission from the student for
future use beyond the semester the work is created in (para. 32-33). These policies demonstrate
the protection of student rights for retention of copyright ownership unless there was use of
unusual resources on behalf of the educational institution in construction of the work or the
student granted permission for use to the faculty member.
Fair Use Analysis
Utilizing the fair use factors for analysis of this case scenario provides the following:
1. The purpose and character of the use - The purpose for use of the student papers is
solely for educational purpose and is not commercial in nature. This complies with fair
use.
2. The nature of the copyrighted work The assumption is that the purpose of use for the
student papers is for educational purpose and the work had been previously unpublished.
The Winthrop policy states that student work copyright is not an option exercised often,
the unpublished work causes conflict with the fair use policy since the creator has the
right to control the first public appearance (Measuring Fair Use, 2010, para. 5-6) of the
student work. Without prior permission from the student, it is in conflict with the fair use
policy.
3. The amount and substantiality of the portion used in relation to the copyrighted work
as a whole The assumption is that the faculty member is posting the entire student paper
to the faculty members online journal. The fair use rules of UMUC call for brevity and
spontaneity (UMUC, 2011, para. 15-18). This limits both the amount of the work used
and the number of times used before permission must be sought for continued use of the

COPYRIGHT CASE REVIEW

work. The UMUC fair use policy requires that if the work is greater than 2,500 words
and it is used in its entirety, permission must be received (UMUC, 2011, para. 15-18).
Since the entire paper is being posted it is in conflict with the fair use rules.
4. The effect of the use upon the potential market for or value of the copyrighted work The
market value of the student paper is most likely insignificant and/or negligible although use in
the online journal could affect the unpublished work and possibly deprive the student of income.
Since it is unknown of the economic effect of posting the student work online could have for the
work and the students potential loss of income is unknown, it could be viewed as questionable
whether the faculty members action is in conflict with the fair use rules.
Summary
The use of the student papers are for educational purposes which is supported by the first
factor. The remaining three factors demonstrate that the use of the student papers is in conflict
with the fair use rules. The faculty member should proactively remedy the conflicts with the
three factors as discussed. While intent to harm previous student works does not appear present,
the faculty member may be in violation of institutional policies of copyright and intellectual
property, dependent upon the institution he works at, as well as copyright law. The faculty
member should seek permission for use immediately from all students to post the student works
in the faculty members online journal. If the student does not grant permission for use, the
faculty member should not use the student paper.
Case Scenario 2: A student scans Dilbert cartoons from the newspaper and uploads them onto a
web page.
Copyright Ownership Questions/Assumptions

COPYRIGHT CASE REVIEW

Many questions require answers to determine if this case scenario is fair use or not fair
use. Questions that require answers include is the student web page for educational or
commercial use and is the Web page password protected. The first assumption is that the student
is using the web page as part of an online journal required as part of the students curriculum.
The second assumption is that the student has posted the Dilbert cartoons to a secure password
protected web page requiring the student to grant permission for access to faculty members or
students as required by the student curriculum. The student applies adequate attribution to each
Dilbert cartoon work used.
The use of Dilbert cartoons is covered under the Classroom Usage Statement of
Universal Uclick for AMU Reprints which covers the Dilbert copyright licensing (AMU
Reprints, 2015, para. 1). The usage statement offers that the use of cartoons can be used for
classroom use in public and private schools, grade K-12, and in college classroom use only. The
classroom use provides for the use of up to seven cartoons per year at no costs as part of (para.
1) Universal Uclick fair use policy. If more than seven cartoons are use, there is a $25 fee for
each cartoon over seven. Additional requirements for fair use include the cartoons are not
changed in this case, the student will make no additions or deletions to the cartoon.
Fair Use Analysis
Utilizing the fair use factors for analysis of this case scenario provides the following:
1. The purpose and character of the use - The purpose for use of the Dilbert cartoons is
solely for educational purpose and is not commercial in nature. The Dilbert cartoon
could be transformative by adding meaning to the work. This complies with fair use.
2. The nature of the copyrighted work The assumption is that the purpose of the web
page is for an educational purpose and the Dilbert cartoons provide work have been

COPYRIGHT CASE REVIEW

previously published, the student having taken the works from the newspaper. The
student does not require prior permission unless the number of works used in a year
exceeds seven Dilbert cartoons. It is unknown the quantity of cartoons the student used.
It is unable to determine if the students web page is in conflict or not with the fair use
policy.
3. The amount and substantiality of the portion used in relation to the copyrighted work
as a whole The assumption is that the student has not altered the Dilbert cartoons when
posting to the web page. It is unable to determine if the students web page is in conflict
or not with the fair use policy.
4. The effect of the use upon the potential market for or value of the copyrighted work The
market value of the Dilbert cartoon does not lose value being used in the students web page as
long as it follows the Classroom Usage Statement of Universal Uclick. If the student has posted
more than seven cartoons in one year and not paid for use, then the student has caused a negative
economic effect and loss of income for Universal Uclick. It is unable to determine whether the
students action is in conflict with the fair use rules.
Summary
The use of the Dilbert cartoons by the student on the web page for educational purposes
is supported by the first factor. The remaining three factors demonstrate that the use of the
Dilbert cartoons by the student, cannot be determined if it is or is not in conflict with the fair use
rules of the Classroom Usage Statement. The student should proactively remedy any conflicts
with the three factors as discussed. While there is no student-expressed intent to harm in the case
scenario, the student may be in violation of copyright infringement if use of cartoons exceeds the

COPYRIGHT CASE REVIEW

fair use rules. The student should seek permission and pay for use immediately of all cartoons
over the fair use limit.
Conclusion
Both case scenarios were viewed as use for educational purposes. While the four factors
of fair use provide exceptions to the copyright law to use the protected works for settings of
educational use, the factors must be met to preclude copyright infringement of created works.
The first factor of appeared to be for educational purposes in both scenarios. The remaining
three factors were not as clear-cut in the nature of use, amount/quantity of use, and the economic
effect of use whether the use was in conflict or not with fair use rules.
Though the intent of both the faculty member and the student appears to be good in
nature, the fair use factors provide a balance between the rights of the copyright owner and the
benefit of society. In this case, both scenarios appear to be undeterminable and would lend itself
to findings of not fair use justifying possible infringement findings. The two scenarios could
easily be played out each day at any educational institution, especially those using distance
education. It provide grounds to justify why faculty, staff, and students should prepare
themselves on how to handled copyrighted works by being familiar with the content of the
education institution policies for copyright law and intellectual property, U.S. Copyright Act and
the fair use factors, the DMCA, and the TEACH Act.

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References

AMU Reprints. (2015). Classroom usage statement. Universal Uclick. Retrieved from
http://www.amureprints.com/reprints/classroom
Copyright. (2005). Copyright basics: The TEACH act. Retrieved from
https://www.copyright.com/Services/copyrightoncampus/basics/teach.html
Stanford University Libraries. (2010, October). Measuring fair use: The four factors [Web site]
Copyright & Fair Use. Retrieved from http://fairuse.stanford.edu/overview/fair-use/fourfactors/
Statement of Marybeth Peters the register of copyrights before the subcommittee on courts and
intellectual property committee on the judiciary, United States House of Representatives.
106th Congress, 1st Session. (1999, June 24) (testimony of Marybeth Peters, Register of
Copyright). Retrieved from http://www.copyright.gov/docs/regstat62399.html
University of Maryland University College. (2002, July 1). Policy 190.00 intellectual property.
Retrieved from http://www.umuc.edu/policies/researchpolicies/research19000.cfm
University of Maryland University College. (2011, January 28). Copyright and fair use in the
UMUC online or face-to-face classroom. Retrieved from
https://www.umuc.edu/library/libhow/copyright.cfm#fairuse_faculty
U.S. Copyright Law, 17 U.S.C. 107 (2011). Copyright law of the United States and related
laws contained in title 17 of the United States code. [Adobe Digital Editions version].
Retrieved from http://copyright.gov/title17/circ92.pdf
Winthrop University. (2003, June 6). Intellectual property rights policy. Retrieved from
http://www2.winthrop.edu/acad_aff/Policies/iprp.html