Legal Issues, Intellectual Property Rights, Copyright and Permissions

There are a variety of legal issues that impact instructors in the classroom. The ever-expanding role of the Internet and other digital technologies in education has impacted these same laws and our understanding of how they apply to teaching and learning.

The following information is a guide concerning issues to consider when putting course or distributing materials online. Please feel free to contact ET@MO for additional information or with assistance in contacting university officials or departments who regularly deal with these issues.

Copyright Basics

The creator of any original work owns the copyright, and the work does not have to be registered for copyright to be effective. There also can be joint ownership for collaborators who create work together. Work also can be made for hire by an employer or person for whom the work is prepared. In this case the employer may hold the copyright. However, there is a difference between who holds the rights to contributions to a collective work vs. who may hold the right to the collective work as a whole (i.e., anthology, edited volume with chapters by different authors).

Copyright Owner Rights

By law, a copyright owner has specific rights to his or her work. These include the right to:

Reproduce
Distribute (sale, lease, rental, gift)
Perform publicly
Prepare derivative works or adaptations
Display publicly

These rights are transferable in whole or in part if the copyright owner chooses to do so. However, if rights are transferred this does not necessarily mean the ownership of the work (material object) is also transferred.

Consequences of Infringement

The consequences for copyright infringement may include penalties for actual and statutory damages. The extent of the penalties often will be determined by whether it is judged to be innocent or willful infringement. Other factors influencing outcome include the following:

Does a registration exist?
Is owner contact information obtainable?
Did the use fall under the special non-profit education and library remission rule?

According to Kenneth Saloman, Dow, Lohnes & Albertson, PLLC, the penalty for proven infringement initially will include an injunction as well as attorneys' fees. Other actual and statutory damages may be added later.

Who Owns Your Course Site and Related Materials?

If created as a part of a faculty's employment, University of Missouri online courses should be copyrighted to the University Of Missouri Board Of Curators. We recommend that you discuss creating an agreement for use of content prior to creating a Web-based course.

COPYRIGHT RESOURCES AT MU

University Bookstore and MU Libraries

The University Bookstore provides a service for faculty needing permissions for copyrighted materials to be included as readings within a course packet. MU Libraries provides a service for faculty needing permission to display copyrighted materials on their Web sites or courses. Each of these resources utilizes a national Copyright Clearance Center that charges a fee. Faculty also may request permission directly from copyright owners. No matter which method is used, faculty will need to use one of the following:

Permission to Use Personal Contributions

When you seek permission to use personal contributions from other faculty, presenters or guest lecturers, make sure you request permission to display, copy, or distribute an individual's likeness, words, talent, actions, photographs, illustrations, and/or graphics.

For what work are you seeking permission?
Who will "own" the permission?
Who is seeking the permission?
What is the purpose for your seeking permission?
Who will be granting the permission (with signature line)?
Date of the permission signature (with signature line). (We have included a sample form at the end of this section.)

Electronic Reserves

ERes allows individual documents to be password protected so a professor can have students outside the class view one resource but not have access to other materials. More information about electronic reserves, a listing of liaison librarians, and information about a new copyright clearance service for MU faculty can be found at: Library Services for Faculty

COPYRIGHT AND YOUR STUDENTS

Be a Role Model

Demonstrate within your Web-based instruction how to use others' published and unpublished materials and student contributions. In addition to following the legal guidelines yourself, teach your students how these issues also may apply to them.

Explain Where and How You Obtained Your Resources or Examples

Discuss the concepts of plagiarism and intellectual property rights. Help students understand the difference between citing or showing sources in the classroom versus copying/publishing materials in print or on the Internet.

Show Ways to Use Resources without Needing Copyright Permission

Provide students with examples of linking to Web resources and provide models of ways they can summarize or reference others' work or ideas without copying or infringing on the author's rights. Discuss the use of government documents as a resource.

When utilizing copyrighted materials, take advantage of available options.

Do the Libraries already own or license the material?
Could this be handled through ERes?
Is this a situation with which the Libraries' Copyright Clearance Center could assist?
Do your textbook publishers already provide the material you need in an electronic format, or would they allow you to scan the material for use in an access-controlled environment online? (Contact your publisher's representative. The Learning Technology Team provides assistance in conversions and adapting existing course materials to work with publisher-provided materials.)
Is online distribution the best means of getting this material to your students?
If you are using student-developed materials, do you have a release form from them to re-use their work?

Prepare adequate precautions to safeguard materials for which you have permission, or for which you are claiming fair use.

Is all the material on a password-protected site?
Are you using conditional release features in the software to prevent guest access or access by former students?
Are you posting the requisite copyright notice? In addition to such notices as the owner of the copyright might require, recent changes in the law require a notice be posted on the course site and placed in distributed materials. We recommend that the following notice appear in any course using copyrighted materials: "Materials used in connection with the course may be subject to copyright protection." It would be appropriate to place this statement in the syllabus, the Announcements section of a Blackboard course.
When using colleagues' work, keep good working relationships by communicating clearly.
When considering intellectual property issues that are more concerned with ethics than law, try reversing the positions and see how you would feel if you were in the shoes of the other party.
Although the Board of Curators co-owns most course materials developed throughout the University of Missouri System, remember that almost all materials are co-owned by their creator. Asking the creator of the materials for permission to copy or modify them can save a lot of upset feelings between individuals, departments, and even campuses.

Communicate in advance with your department regarding the use of your course.

Come to an agreement in advance regarding who owns the intellectual property rights for the course materials you develop as an MU instructor.
Come to an agreement regarding how the department may use the course after you are no longer the instructor.

To increase your chances for a favorable response to your copyright request, include specific details.

When asking others for use of their intellectual property in Blackboard, or other systems such as ERes, stress that you will credit them in a copyright notice.
Make it clear that you will display their property in a password-protected environment. This can sometimes tip the scales in your favor, particularly with publishers.

Reference - Upchurch, G. (1999). Infringement and distance learning [Conference workshop]. Intellectual Property Issues in Distance Learning, Kansas City, MO: University of Missouri-Columbia, University of Missouri System, MU Extension, MU Direct Continuing and Distance Education, MU Libraries, UMKC Interactive Video Network, ADEC.

Additional Resources

The United States Copyright Office, The Library of Congress: http://lcweb.loc.gov/copyright/

Information Security & Account Management, University of Missouri Division of IT: https://doit.missouri.edu/security

View permission form to use personal contributions

AMERICANS WITH DISABILITIES ACT (ADA) AND ACCESSIBILITY ISSUES

Overview

The 1990 Americans with Disabilities Act (ADA) requires that U.S. programs and services be accessible to individuals with disabilities. A 1996 Department of Justice ruling makes it clear that ADA accessibility requirements apply to Internet resources.

An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

What Educators Using the Internet Should Know about ADA

The Web offers many educational opportunities for those with physical impairments. In addition to easier access, there are reports that the comfort level is much greater during group discussions where visual impressions and judgments are less likely to occur. Allowing time for course planning and preparation is one effective way instructors can assist students with learning or physical disabilities. Educators who utilize the Internet should be aware of Section 508 of the Rehabilitation Act, which involves agencies that receive federal funding. (Missouri has passed a similar law regarding agencies that receive state funding.) Previously developed Web sites do not have to change in advance of an accommodation request. However, when the request is made the university must make reasonable efforts to provide access to the learning experience at a level equivalent to that of non-handicapped students. Therefore, Section 508 compliance should be taken into account as new MU websites are developed and existing ones revised.

Additionally, the online resources listed below offer excellent information about different aspects of ADA.

Student Rights and Responsibilities

Include information about students' rights and responsibilities in your syllabus and be aware of the rights and responsibilities of students with special needs. New students may not be aware of these requirements. Know the law for providing access as well as the MU requirements for accommodating special needs. The MU ADA Coordinator recommends that faculty include wording similar to the following in their Web course sites:

If you need accommodations because of a disability, please inform me immediately by email to _____________@missouri.edu, or by phone to 573-__________.

To request academic accommodations, students must also register with Disability Services, 573-882-4696, http://disabilityservices.missouri.edu//. The Coordinator of Student Services is Barbara Hammer, at hammerb@missouri.edu. Disability Services is the campus office responsible for reviewing documentation provided by students requesting academic accommodations, and for accommodations planning in cooperation with students and instructors, as needed and consistent with course requirements. Another resource is MU's Adaptive Computing Technology Center, 573-884-2828 or 866-396-2380 (toll free), http://doit.missouri.edu/adaptive/, or ctcenter@missouri.edu is available to provide computing assistance to students with disabilities.

For more information about the rights of people with disabilities, please call 573-884-7278 or see http://ada.missouri.edu.

Page Layout

Create a general page design that provides a simple, consistent layout throughout your site. Keep backgrounds plain and make sure there is enough contrast between the background and font color. Use standard HTML and make links descriptive so they are understood out of context (i.e., when a student uses reader software). Design large, easy-to-view buttons, typically in the range of 64 to 72 pixels. You may contact the ET@MO Learning Technologies Team or the Instructional Design Team for more details on appropriate sizes or layout.

Graphical Accommodations

Include appropriate, explanatory ALT/LONGDESC attributes for graphical elements on your Web page. ALT tags are captions inserted within the HTML code that explain what the graphic represents. Computer reader software will provide the description tag where the graphic would occur. Other graphical accommodations include:

Menu alternatives for image maps to ensure that embedded links are accessible.
Descriptive captions for pictures and transcriptions of manuscript images.
A NULL value for unimportant graphics, which consists of an empty pair of quotation marks. The NULL value should appear as an ALT attribute within the image tag and would be written as: alt=" ".

Alternative Information

Provide alternative ways of supplying information from audio and video elements. Provide audio and/or video descriptions and captions. Also provide transcripts for the content of all audio information.

Screen Readers and Special Features

Be aware that computer screen reader software cannot easily cope with special features like Web tables, frames, forms, databases, and applets or plug-ins. Use these features sparingly and consider making alternatives available. To make the screen reader work properly for the assisted student, there are a few things to watch for when designing your Web pages. The points below are given with respect to how a screen reader may render information for the person with a visual impairment.

Data Tables: The presentation of information in table form is a common feature of college courses, and the Web in particular. Because data points in a table frequently have specific relationships with each other, it's necessary to enable a screen reader to supply that information in a way that is logically understandable without the visual aid of the table. Special markup in the HTML language is required to accomplish this task. Examples may be found here, http://www.w3.org/TR/WCAG10-HTML-TECHS/#identifying-table-rows-columns.

Text Formatting Tables: Often these are hidden tables used only to assist in general textual formatting. No special markup is required for this usage. Just be aware that a screen reader reads left to right and top to bottom, one cell at a time. Therefore it will read the entire text in each table cell before proceeding to the next cell.

Links: It is common practice to display links with the entire underlined URL--in all its complexity--as shown in the Data Tables paragraph above. An alternative method may use a word or phrase in the text to link to the information. I might have written that sentence above like this: "You may find examples of table markup at the W3 Website." A screen reader will read an underlined link by speaking the word "link" and then speaking the underlined text. If it's a complete URL, the reader will try to speak the letter combinations as actual words and will speak the punctuation marks as well. A linked word or phrase will be read as "link" plus the underlined words of the link. Think about this for a moment and you'll realize that neither approach is likely to give the user any real clue about what he is linking to, or why he should go there. Try to use specific phrasing when sending someone to an outside link. Keep it as simple and as descriptive as necessary.

Acronyms: We are all used to seeing and using them, so they are an everyday occurrence for most of us. You may know what the acronyms NASA, USA, JFK, LBJ, IBM, IRS stand for. With the possible exception of NASA (and even then only with proper accents) a visually impaired user will have a tough time deciphering what the screen reader is telling her when trying to read these "words." Acronyms often are a necessary evil of the English language, so make the best of it by using them sparingly and providing a full version of the phrase the acronym abbreviates. Since we read many common acronyms as individual letters, it makes sense to format them accordingly. You can accomplish this by simply putting a space between each letter of the acronym. Thus, USA becomes U S A, IBM becomes I B M, and so on. By using this tactic you retain the visual component of the acronym and allow the sight-impaired person to glean the meaning without inducing undo cognitive load.

Images, & ALT attributes: To make an image usable for the individual with visual impairments, be sure to use the ALT attribute within the image tag.

Special Note: An "Attribute" is an optional feature of HTML coding that specifies a particular property of a specific tag. Attributes appear within a set of quotation marks after the name of the tag itself. See the example below for use of the ALT attribute with an image. (Capitals are optional)

In the above example you'll notice there are additional, optional attributes called width, height, border, and align. The img src attribute is not optional, as it specifies the path and name of the image being used. Everything else after that is optional. The ALT attribute allows you to attach a verbal descriptor to an image, giving you the opportunity to explain to users what the image is or does, or how it relates to the rest of the content in your Web page.

It's important that you give careful consideration to your use of images in general. Try to think about them from the user's perspective. Does the image really add anything to the instructional content? If the answer is no, or you have trouble deciding, that's a pretty good clue that this particular image is questionable.

Summary attribute: Similar to ALT is the SUMMARY attribute. Its use is primarily for tables and is similar to the less common LONGDESC (long description) attribute. It allows you to include a longer explanation of the item you're describing. Use SUMMARY when including a longer description, as LONGDESC is not yet widely supported in Web browsers.

Captions: Captions typically provide a short description about a table. Using the CAPTION tag will automatically place the text of your caption directly on top of the table. Screen readers will read the word "caption" and then read the text of the caption, providing a verbal clue to the nature of the table.

Test your Web pages for ADA compliance. Use multiple browsers (i.e., Netscape, Opera, and Internet Explorer). Use one that is text-based and/or turn off the graphics and sound capability with multimedia browsers. Also try various computer platforms and test various sized monitors and resolutions. Try out the site's accessibility with the computer keyboard only. There are also useful testing software available for Web pages. (Note that these utilities do not work with pages already inside a Blackboard course site.)

Examples include:

Bobby http://bobby.watchfire.com/bobby/html/en/index.jsp
WAVE http://www.wave.webaim.org/index.jsp
W3C markup validation service http://validator.w3.org

Stay current. Students may not understand that there are different options available. Know ways that MU might provide access to technologies you require for your course. Different accommodation methods might include: a personal reader, Braille, large print for people with low vision, telephone relay services, real-time transcription, printing of Web pages, interpreter services, or captioning.

Resources for More Information

FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) ISSUES

Overview

"The Family Educational Rights and Privacy Act (FERPA) is a Federal law designed to protect the privacy of a student's education records. The law applies to all schools which receive funds under an applicable program of the U.S. Department of Education."

(Family Compliance Office Homepage: http://www.ed.gov/offices/OM/ferpa.html, November 29, 2001.)

What Educators Should Know about FERPA

Due to the wording of the act (which originated in 1974 and did not envision the Internet) all computer files and records in courses using Blackboard, or other online components are considered educational records protected by the act. Also, since FERPA does not allow disclosure of information on whether a particular student is enrolled in a given course, faculty may not allow those without a legitimate education interest in a student access to any data in a course with an online component that contains personally identifiable information. What this means in practice is that students have the right to expect any material they submit in a course with an online component--as well as their names and other identifying information--will not be viewable by guests or other individuals permitted access to the course. The exception to this is cases in which students have given explicit, written, signed consent. (Verbal consent or email is insufficient. Note: Missouri does not yet recognize digital signatures.)

Additionally, students who have selected to have their directory information (information the University can normally release) restricted may ask to have their name withheld from other members of the course. Legally and ethically, such requests must be honored and taken seriously. (While some complain that registration forms make it too easy to restrict this information without understanding the implications, there are instances of MU students who have had their information restricted due to harassment and/or stalking, including online stalking.)

The online resources listed below also offer excellent information about different aspects of FERPA.

Resources for More Information

ET@MO has developed an extensive handout on making Blackboard compliant. This is available at: FERPA Concerns

Information on FERPA as implemented at MU is available at: http://registrar.missouri.edu/Registration_and_Student_Services/Rules_and_Regulations/ferpa.htm

The University's rules and regulations regarding FERPA are online at: http://www.system.missouri.edu/uminfo/rules/information/180020.htm

Family Educational Rights and Privacy Act (FERPA) - http://www.ed.gov/offices/OII/fpco/ferpa/

Be aware of any students exhibiting specific concerns about FERPA issues

Discuss specific concerns with the student. Find out which portions of your course are causing concerns and why.
If you cannot readily fulfill the student's expectations, look for a compromise solution.

Contact the Learning Technologies Team via email at blackboard@missouri.edu or webct@missouri.edu. They may be able to suggest additional ideas or create a new work-around solution.

Conditional Release of Materials

Instructors need to familiarize themselves with those features that allow conditional release of materials within a course. From a technical viewpoint, the main problem in relation to both copyright and FERPA is controlling access to materials. While Blackboard requires users to authenticate to the system, some instructors allow some form of guest access to their courses. However, guests should not be able to access copyrighted materials or have access to enrolled student information. Access to copyrighted materials should be restricted to enrolled students and TAs. This means that these materials should only be linked or posted to pages to which access can be controlled. When used in ERes, copyrighted materials should be password protected.

FERPA requirements are largely fulfilled in Blackboard if all areas in which students' work, names, or IDs might be visible are restricted to prevent guest access. This means that Discussion and Email tools, Student Homepage tools, and Groups all should be restricted. (The mechanics of restricting pages is covered in depth in the accompanying handout: "FERPA Concerns.")