Anthony J. Pennings, PhD

WRITINGS ON DIGITAL STRATEGIES, ICT ECONOMICS, AND GLOBAL COMMUNICATIONS

Copyright Protection and Fair Use for Creative Industries and Education

Posted on | May 16, 2015 | No Comments

Disclaimer: The following is a brief overview related to copyright issues and should not be considered legal advice.

Copyright protections for “creative industries” and their cultural, informational and entertainment products are central to economic and educational development. They address crucial issues about the incentives for developing creative works and investing in creative projects. They also determine the flexibility of authored works for education purposes, including distance learning.

The U.S Constitution recognized early the social value of such arrangements in Article I, Section 8, Clause 8 when it codified the following:

    “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.”

Known later as the “Copyright Clause” it encoded the recognition that incentives and protections were needed for the country’s development. While the U.S. was mainly an agrarian society, the printing press was in wide use throughout the urban areas of the colonies. The politics of the printing press were a big issue in European countries and crucial to the American Revolution. Copyright legislation had been passed by an act of the Parliament in Great Britain in 1710 with the Statute of Anne to provide for protections regulated by the courts and government rather than trade guilds. These protections have become a priority in a world dominated by codification and commodification of expressive values. Works protected include dramatic, graphic, literary, musical, choreographic, pictorial, sound and video recordings.

In the US, protection of copyright was first granted with the Copyright Act of 1790 and was followed by the Copyright Act of 1909 that allowed for copyrights to be renewed. The Copyright Act of 1976 superseded all previous US copyright law and extended the term of copyright. It was noted for its codification of the doctrine of “fair use.”

The notion of fair use allowed some use of copyrighted materials for criticism, news reporting, research, scholarship and teaching purposes. The factors that went into the determination of fair use had to do with whether the use was for commercial or educational uses, whether the copyrighted work was factual or fictional and the degree of creativity in the original work. Also, how much of the original work was used. Another issue has been how the use would affect the market or potential market for the protected work.

Copyright in the US harmonized with the global system when Congress passed the Digital Millennium Copyright Act (DMCA). It was signed into law by President Bill Clinton on October 28, 1998 and was notable for its incorporation of international copyright law developed by the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). It implemented 1996 WIPO treaties, particularly the WIPO Copyright and Performances and Phonograms Treaties Implementation Act and the WIPO Copyright Treaty that focused specifically on digital works.

The DMCA amended the United States Code to extend the reach of copyright protection, criminalized actions and devices that circumvented rights management, as well as limited the liability of online service providers for copyright infringement by their users. It also provided protection for computer and digital device repairers so they could make temporary and limited copies of copyrighted materials during maintenance and repair work.

The DCMA also provided some protection for the use of copyrighted materials in distance education although stronger protection in the US was provided on November 2nd, 2002 when The Teach Act was signed into law by President Bush. Officially known as the Technology, Education and Copyright Harmonization Act, it was part of the larger Justice Reauthorization legislation (H.R. 2215). It redefined the terms and conditions on which nonprofit educational institutions in the U.S. may use copyright protected materials in distance education. This includes websites like my own, as well as course materials on other digital platforms and technologies.

This video is a good starting point for understanding The Teach Act.

It should be emphasized that the legislation does not give carte blanche for the unlimited use of copyrighted materials.

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AnthonybwAnthony J. Pennings, PhD is the Professor of Global Media at Hannam University in South Korea. Previously, he taught at St. Edwards University in Austin, Texas and was on the faculty of New York University from 2002-2012. He also taught at Victoria University in Wellington, New Zealand and was a Fellow at the East-West Center in Hawaii in the 1990s.

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  • About Me

    Professor and Associate Chair at State University of New York (SUNY) Korea. Recently taught at Hannam University in Daejeon, South Korea. Moved to Austin, Texas in August 2012 to join the Digital Media Management program at St. Edwards University. Spent the previous decade on the faculty at New York University teaching and researching information systems, media economics, and strategic communications.

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