Perhaps Thomas Jefferson alludes to the notion that ideas may well serve society by being free of restriction. However, the reality with today's innovations and the ease of disseminating information places rules on the use of this information within what the legal arena refers to as intellectual property. The term "intellectual property" embodies the aspects of copyright, trademark, trade secret, and patent laws and functions as a governing force with the use of information within society. With the advent of new technology and its implementation within the sphere of education, many academics and students remain confused as to the role traditional copyright laws play with respect to computer-related technology and the on-line world. As educators become more involved with the production of multimedia and World Wide Web pages, the need to better understand copyright law is imperative. This paper will provide educators with an overview of copyright law by defining copyright and fair use as it pertains to the internet and digital media within the academic atmosphere.

Copyright law functions to define the boundaries with which individuals may use materials created by another. In this sense, the Constitution rewards the authors by empowering them with the control over their creations. Intellectual property is regarded as having a value on a creation since the time and effort a developer spends on the production is seen as having an intrinsic value. These valuable goods are thus protected as a commodity to insure appropriate recompense for their efforts, perhaps in some cases to cover only the production costs.

1. Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form.
   
   
2. Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create new work. A new work is based on a preexisting work known as a "derivative work."
   
   
3. Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease or lending.
   
   
4. Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in a sequence is considered "performance." Some types of works, such as sound recordings, do not have a public performance right.
   
   
5. Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display" (Brinson and Radcliff, 1994).
   
   

Each of these "exclusive" rights is given to the author, or owner of the work, provided the work is "original" and "fixed" within a tangible medium of expression. The notion of a work having "originality," in the copyright sense is ". . .if it owes its origin to the author and was not copied from some preexisting work (Brinson and Radcliff, 1994). A new work that uses preexisting material is still considered to be original. However the copyright on the new work only covers the original material contributed by the author, not the preexisting material that was used (Brinson and Radcliff, 1994). If a multimedia developer uses a series of video images in a work, each of which were attained legally for use, the copyright on the multimedia production does not extend to the video images. Since the multimedia work owes its origin to the developer, only the original material created by the developer falls within the scope of the multimedia project's copyright. The video images are not covered under the copyright of the multimedia project, as they are deemed to be preexisting materials.

It should be noted that copyright only covers the expression within a given work, not facts or ideas. As noted by J. Dianne Brinson and Mark F. Radcliff, in their piece Intellectual Property Law for Multimedia Developers, "copyright protects against 'copying' the 'expression' in a work as opposed to the idea of the work" (Brinson and Radcliff, 1994). Although the distinction between an "idea" and an "expression" seems confusing, it really is quite simple. For example, one may produce a book on how to use Windows 3.1. The idea of creating a book on this topic is not copyrightable, however the presentation of the information, or expression, falls under the copyright domain. Stricly factual information is not copyrighted, for example, information found within a telephone book. However, the means by which the information is presented, the "look" or expression, is copyrighted. This notion of expression functions as the legal tool with which databases copyright their presentation of information.

Fixation of a work occurs when it is made "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration" (Brinson and Radcliff, 1994). When an author enters an expression into the computer so others may view it owns the copyright to that expression because it is "fixed" within that medium. All works of expression are ". . . protected by copyright as soon as they are created and fixed in a tangible medium (Elias, 1994). In this case, the internet and the World Wide Web each constitute a fixed medium to which copyright is equally applicable. Moreover, items associated with the internet are copyrightable, unless the author specifically grants the information to be for the public domain. Lance Rose clarifies this point within Netlaw:

This means that when even one cannot find a copyright notice on a recent work, it does not imply that the work has no copyright protection. This is particularly applicable to works found on-line. It also means that if it isn't clear whether someone has disclaimed their copyright in a given on-line work, then they probably still have the copyright (Rose, 1995, p. 93).

In other words, a work found on-line is copyrighted unless otherwise specified. Materials found on the internet need not have the familiar "C" or even a notice of copyright; assume that they are copyrighted. There are sites on the internet and the World Wide Web which post materials strictly for use in the public domain. Each site should be clearly specified for such purpose.

As already noted, the material posted on the internet has the same copyright protection as if it were a magazine publication, printed book, or broadcast, etc. One of the great myths is that the internet is a "free for all" in terms of using the vast available resources-- a very dangerous myth to believe. Conversely, the internet is not absent of the same laws that apply to other mediums of expression. Many argue that the laws lack the enforcement capabilities within the world of Cyberspace. However, internet-related cases are appearing in the courts with increasing frequency as more people are connecting to the on-line world (e.g. Sega Enterprises Ltd. v. Maphia [1994], Grand Upright Music v. Warner Bros. [1991], Feist v. Rural Telephone [1991], Playboy Enterprises, Inc. v. Frena [1993], etc.). Dr. Dan Burk, a visiting professor at George Mason University's Law School, wrote an article detailing the rising intellectual property issues with respect to the internet. In his article, Transborder Intellectual Property Issues on the Electronic Frontier, Dr. Burk states that ". . .the legal issue raised by computer networks will be predictable extensions of those raised by print, magnetic, and broadcast media . . . copyright is likely to affect most of the types of information exchanged over the internet. . . ." (Burk, 1994). Indeed many of the copyright laws translate directly to the internet. In fact the authors of the 1976 Copyright Code foresaw the technological innovations and the effects it might place on copyright. The law is written with some elasticity so as to apply to the evolving technologies:

Copyright protection subsists. . . in original works 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 (Bruwelheide, 1995, p. 3).

The inclusiveness of the revised copyright code considers the internet as a fixed and tangible medium of expression. Hence, the notion that the internet is free from the same restrictions as other mediums of communication is a fallacy. There are many different facets of the internet, each of which should be reviewed with respect to copyright law.

There are many on-line systems which allow users to interact with other users within an ongoing discussion. This may take the form of "real time" discussion, such as a "chat room," or may be in the form of "postings" or messages for newsgroups, Usenet postings, or Listservs. These messages are usually accessible by many individuals at any given time. In each case, the messages are original works of authorship fixed in a tangible medium of expression. Although the messages are posted for public display does not deem them as public domain material. These messages are copyrighted by the author unless specified otherwise. The Copyright Office refers to the messages as "literary works" (not in the artistic sense, but for categorical purposes). Again, Lance Rose states that ". . .all messages qualify for copyright protection as 'literary works.' . . .The person who writes a public message is the author of that message, and under copyright law, that automatically makes him or her the owner" (Rose, 1995, p. 97). The author of any message is the sole copyright owner.

Although e-mail is not considered a "public" form of communication between individuals, the same copyright laws apply. An additional consideration with regard to e-mail is the invasion of privacy and the ramifications of using a private e-mail message. Some internet sites require that one release his or her rights of privacy regarding sent e-mail, thus permitting the system operator to freely distribute e-mail messages to others. This only reduces one's right of privacy, but not the rights of copyright (Rose, 1995, p. 99). Again, unless explicitly stated that the material is for the public domain, the messages are still copyrighted.

Users of the internet often download various software programs that are available to the public. Shareware refers to software that is provided for a "trial" period so individuals may download and test it on their computer prior to purchase. This functions more as a marketing plan than anything else. Freeware, on the other hand, does not require one to purchase the software. Individuals are free to use the software at no cost. With freeware and shareware, the ease of availability and purchase options does not cancel the author's copyright of the software. With the case of freeware, shareware, and other computer software: the source code of a program -- the program as expressed in programming language by its human programmer-- is considered the main copyrightable form of a program under copyright law, since It most resembles traditional "literary" works in that it flowed from the human hand (Rose, 1995, p. 99).

So freeware and shareware are both copyright restricted. Only "public domain" software is totally free of copyright restrictions. However, one should consider that ". . .software that has been created after March, 1989 can no longer become public domain unless it is clearly dedicated to the public by the copyright owner" (Rose, 1995, p. 102). Public domain software, in some cases, may have been modified since that date which reinstates copyright. This should be a consideration for anyone who is downloading programs.

Databases function as a computerized collection of information for users to access. The key to what is copyrighted within a database is determined by the organization of the facts and information-- no one can copyright facts or ideas. The copyright only covers the ". . .original 'selection, coordination, or arrangement' of that database" (Rose, 1995, p. 109). The arrangement, or presentation, of the material is is what constitutes the copyrightable "originality" and expression of a database; the copyright does not extend to the facts or ideas contained within the database.

The on-line world is loaded with computer files which individuals download and upload regularly. With each of these files, the person who created the file is the owner of that file which is copyrighted. Text files are considered analogous to e-mail and other "message" postings.

Sound and MIDI files are also considered copyrighted as they are fixed in a tangible medium of expression. Lance Rose indicates that, ". . .both sound and MIDI files are fully protected by copyright. . . [They] do not lose copyright protection just because they are stored and transmitted in digital ones and zeros" (Rose, 1995, p. 106). There is some question as to whether music sent over the internet is a performance or a copy, depending upon how the message was received (i.e. as a sound or a file). The government has proposed to handle this discrepancy on a case by case basis (Weiss, 1995, p. 40).

Image files are deemed as being ". . .equivalent to paintings, photographs, graphic illustrations, and other pictorial works" (Rose, 1995, p. 104). In some cases, individuals download an image file with the thought of posting it for public use and dissemination. Unless within the public domain, using images in this fashion directly violates the author's rights. The recent case of Playboy v. Frena (1993) adequately demonstrates that copying and distributing images, without consent, clearly violates copyright. In this case a bulletin board service scanned numerous pictures from Playboy magazines. Playboy sued the owner of the bulletin board service for maintaining some 170 images for the public to download. Although Frena argued that the use of the images fall under the Fair Use provision, the court ruled against him for infringing copyright.

The doctrine of fair use is perhaps the most useful provision for educators with regard to copyright law. With the 1976 Copyright Revision Act, Congress codified fair use for the first time in history. As presented at the Multimedia Fair Use Guidelines: The Educational Gateway to the Information Age teleconference, the notion of "fair use is often referred to as an 'equitable rule of reason'" (PBS/ALSS, 1995, p.5). The purpose for this doctrine is to set aside certain uses of materials so as not to be injurious to copyrights of the author. The idea behind fair use is to not impede the constitutional objective of promoting learning, and other social benefits with the owner's exclusive rights. This code is defined as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

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 copyrighted work.
   
   

This is the outline of the fair use code which enables educators, as well as others, the ability to use copyrighted materials provided he or she follows the boundaries of the code. Moreover, fair use must meet all four criteria to be a protected activity. However, these serve as guidelines, and in no way functions as definitive set of standards or guidelines. As stated in the Risks Digest, "there are no definitive standards or guidelines governing the use of copyrighted materials in the preparation of multimedia courseware for instruction, or classroom presentation utilizing multimedia" (Kabay, 1994). The same can be said of using materials from the internet, or posting materials to the internet. As was stated at the teleconference:

educators and students are advised to exercise caution in using digital material downloaded from the internet in producing their own educational multimedia programs, because there is a mix of works protected by copyright and works in the public domain. . . .some copyrighted works may have been posted to the Internet without authorization of the copyright holder (PBS/ALSS, 1995, p.10).

In essence, the use of materials from the internet should be exercised with caution. Since most information on the internet is neither free of copyright, nor are there clear standards that would provide accurate information, educators would be better served to get written permission with any resource or refrain from using the resource altogether.

The first aspect of fair use should not be difficult for educators to satisfy. As with the Playboy v. Frena case, Frena attempted to use fair use as a defense for infringing on copyright. The judge ordered that Frena's use was clearly commercial in nature and ". . .commercial use tends to cut against a fair use defense" (839 F. Supp. 1552, 1557). In this case, the use of the copyrighted images was clearly for personal gain. Most educators will use materials, not for commercial gain, but for educationally related purposes.

The second aspect specifically looks at the nature of the copyrighted work. Some works are simply more deserving of copyright protection than others. As with the Multimedia Fair Use Guidelines, ". . .the intended market is important to consider, as when one is working with something which is made solely for the educational market or one which I directed at the public generally" (PBS/ALSS, 1995, p.6). Simply stated, is the work scholarly/ informational or commercial in nature? However, one must consider the entertainment value of the work, as "if a work is more appropriately characterized as entertainment, it is less likely that a claim of fair use will be accepted" (839 F. Supp. 1552, 1558). For most educators, the nature of the work would clearly fall within the domain of being scholarly.

The third aspect of fair use focuses more on the amount and substantiality of the copyrighted material used in a work. This is the quantitative aspect of fair use, which determines whether the amount of copyrighted material used is infringing upon the owner's interest in a measurable way. Considering this aspect is the most difficult as there are no clear distinctions as to how much is too much to use. With the case of the internet, using 100 downloaded and copyrighted images, without authorization, within a work would most likely fail the fair use test. However, even the smallest amount used may be considered an infringement of copyright. As with the case of Playboy v. Frena, ". . .a small degree of taking is sufficient to transgress fair use if the copying is the essential part of the copyrighted work" (839 F. Supp. 1552, 1558). In Meeropol v Nizer, only 1 percent of a complete copyrighted work was taken and used, but still qualified for copyright infringement. In Valduz, Leichtenstein, Black, Inc. v. Columbia Broadcasting System, Inc., the use of only 55 seconds of an 89 minute film was deemed substantial enough for copyright infringement. Much of this hinges upon whether what is used is considered to be the "essence" of the work. In the Multimedia Fair Use Guidelines, considering the essence of a work ". . .may be more easily applied to music than any other works. . .as for example a refrain repeated during a the composition, and although short, may constitute the essence of the work" (PBS/ALSS, 1995, p. 6). One good rule is to not use but what is truly needed. The Multimedia Fair Use Guidelines teleconference managed to compile a list of guidelines for professionals within the field of education. A section of this document addressed the notion of portion limitation when using copyrighted material:

1. Motion Media Up to 10 % in the aggregate of a copyrighted work consisting of text material may be reproduced, performed and displayed as a part of a multimedia program produced by an educator or student for educational purposes.
   
   
2. Text Material Up to 10 % in the aggregate of a copyrighted work consisting of text material may be reproduced, performed, and displayed for educational purposes. In the case of a poem, the entire poem if less than 250 words or 250 words or less of a larger poem may be reproduced, performed, and displayed as part of a multimedia program produced by an educator or student for educational purposes.
   
   
3. Music Up to 10 % of a copyrighted musical composition may be reproduced, performed, and displayed as part of a multimedia program produced by an educator or student for educational purposes.
   
   
4. Illustrations and Photographs The reproduction or display of photographs and illustrations is more difficult to define with regard to fair use because fair use equally precludes the use of entire works. Under these guidelines a photograph or illustration may be used in its entirety but no more than 5 images of an artist or photographer may be incorporated into any one multimedia program. When using photographs and illustrations from a collection, not more than 10 % may be used in the multimedia program (PBS/ALSS, 1995, p. 9).

The professor might well be maintaining confidentiality, however he is directly breaching copyright of everyone who posted messages. Although he attempts to mask the identity of these individuals, the privacy issue is still questionable. Each of these postings is copyrighted by the author of that posting. He should clear permission with each individual from whom he will use for his chapters.

6. A professor takes students' essays from past courses, edits each essay for clarity, and compiles them to place on the World Wide Web. The professor wants to include some of the students' e-mail messages, as some interesting points apply to the work on the essays as well.

The professor should have each student sign a release prior to placing these documents on the web. The students' essays are copyrighted as they are the authors of the work and the essays are fixed in a tangible medium of expression, as are the e-mail messages. The students own the copyright to their work, unless otherwise specified.

Copyright law has not disappeared with the evolution of technology. As academics, our role as teachers who use the latest technology is to share our knowledge in a way that most benefits the students. Becoming versed in the legal issues that surround the internet and the World Wide Web is an obligation to ourselves, our students, and society. Copyright law is one of these issues. As we have seen, the on-line world offers a vast array of information, but is not free of the laws that govern other mediums of communication. There are many aspects of copyright that will eventually defined by the cases that arise in the courts. However, having a good understanding of the relationship between copyright and the on-line world will hopefully keep many of us absent from these proceedings.

Robert E. Frazier received his Bachelors of Arts in English and Political Science from Virginia Tech. Mr. Frazier completed a Masters of Education in Instructional Technology from the University of Virginia in August of 1996. He currently lives in Baltimore, MD, where he is working on a law degree at the University of Baltimore School of Law. His ultimate goal is to live in a box, in order to repay his educational debt. He can be reached via email at: frazier@charm.net