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Securing Permissions and Releases
for Materials Included in Faculty Authored Instructional Materials
1. Copyright Infringement.
In order to avoid infringing the rights of third parties in the creation of a new work the author must seek permission and pay whatever fees are required unless the proposed use of another author's materials falls within an exception in the Copyright Law. An author who creates a new work entirely on her own will avoid copyright permission issues, but may need to secure releases from audience members or guest speakers for materials that include video of classroom instruction. These should be acquired as a condition of participation in the class.
The good news may be that fair use aplies in the electronic environment; the bad news is that if the author plans to commercialize her work, relying on fair use becomes a problem. If fair use does not apply, locating copyright owners, getting their permission to include their works in the new work, and negotiating a price for this right may be, individually or certainly cumulatively, overwhelming.
Fair use protects the user from liability for infringement of another's work under certain circumstances. Teaching, scholarship, and research are favored under the law but in any particular circumstance, whether a use is fair will rest upon the weighing and balancing of certain facts about the proposed copying: what does the user plan to do with the copied work; what is the nature of the copied work (fact or fiction; published or unpublished); how much has the author borrowed; and will the new work compete with or otherwise damage the market for the original work? To illustrate circumstances at one end of this continuum, using somone else's materials in a Telecourse designed by a faculty member for his own use in teaching his own class, so long as restricted to small quantities of others' works, would probably qualify as a fair use. On the other end, a work created by the University for the express purpose of marketing to other universities, and incorporating large portions of others' works would probably not be entitled to utilize the fair use defense. Unfortunately, most cases are not so clear. There is a very large "gray area" and most every proposed use falls into it.
There are other exemptions for performances and displays in face-to-face teaching situations and to a lesser degree in "transmissions," which include broadcasts and electronic distributions. When they apply, these exemptions excuse the performance or display of a work, but not the making of a copy of the work, which can only be excused if it is a fair use. But if an author creates a work for her own use, a copy of an included work is more likely to be fair use and the performances and displays that take place as a result of transmission and reception will likely be excused. On the other hand, if the work is intended for a commercial audience, the right to make the copies in the first place will have required permission.
On occasion a faculty member may begin creation of course materials planning to use the materials in a limited way, only to decide later that the materials may have more potential than she first believed. If permissions have not been obtained (in reliance, for example, upon a fair use claim), the requirement to obtain them when the work is complete may be doubly troublesome; some authors may be difficult or impossible to find; others may be unwilling to give permission; still others may ask too high a price. It would be quite likely that the work would require revision based on the results of an after-the-fact permission search.
Because of all these factors, it is usually best not to rely upon a claim of fair use in creating educational materials if the author is at all inclined to commercialize the work; the author should get permission to use any protected materials and be ready to substitute other materials for those that cannot be cleared.
Almost any publisher who might handle publication and distribution of educational materials will require the author to warrant that all permissions and releases that are necessary have been obtained, and to indemnify the publisher against any losses that the publisher might incur as a result of the author's breach of his warranty. Thus, failure to obtain the necessary permissions and releases could result in considerable financial liability were one or more authors from whom material has been borrowed to complain of infringement.
2. Online Works are Protected by Copyright.
It is tempting to think of the contents of the Internet and of the World Wide Web ("Web") as works "out there for the taking" and ready to be incorporated into new multi-media works. This misstates the facts considerably. Many authors place works on electronic networks without much concern for the uses that others will make of them, but probably most have not considered how they would respond if someone made a commercial use of their work without their permission and without payment of any fee or royalty.
Works in the electronic environment are protected under Copyright Law just as print works are protected, from the moment of fixation in a tangible medium of expression. This is understood generally to include fixation in computer storage media. Thus, email messages, postings to bulletin boards, files placed where they can be retrieved by file transfer protocol ("ftp"), hypertext documents on the Web and a host of other "publications" in the electronic medium are all protected. Thus, one should not assume that he has permission to copy, display, publish, distribute or perform such works except as required for the normal use of the work in the electronic environment. For example, a copy of a file must be made somewhere in the retriever's computer since that is the nature of retrieving; people make hard copies for easier reading. Other uses, such as extensive reposting or otherwise distributing electronically, publishing the contents of the file in another medium or creating a derivative work from it should be reserved to the owner.
The Internet is fast becoming a field of expressive wealth and is attracting more and more contributors and users. Fortunately, the medium makes it possible to lower transactions costs considerably; many authors include their email addresses with posted materials thus making it easy to quickly secure the necessary permission to proceed. It has been suggested that it should become routine to provide all permission information in an envelope that accompanies electronic postings. The envelope could indicate how the work could be used and the price for various permitted uses. Still other proposals contemplate that the mere act of posting on certain networks would carry with it permission to use in any way, with payment accounted electronically from pooled funds paid by subscribers to the network. Other proposals abound. Clearly, the emerging electronic environment requires monumental work to adapt it successfully to our system of creation and distribution of intellectual works, but the potential is so enormous that the force is irresistible.
The university community would benefit considerably if its authors appreciate the need for simplified procedures for permissions and reasonable valuations of works, and take steps to ease this burden for others who follow them. Since faculty are users and creators of works, they should be especially sensitive to the benefits of efficient access and transfer of rights.
3. How To Get Permission.
Permission is only required for works that are under copyright protection. Ascertain first whether the work you wish to use might be in the public domain.
There are no foolproof methods to obtain permission, but there are steps to take that are likely to yield results. We have assembled some of these first steps in the document, Getting Permission, to assist you.