Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 08832320309599712
Journal of Education for Business
ISSN: 0883-2323 (Print) 1940-3356 (Online) Journal homepage: http://www.tandfonline.com/loi/vjeb20
Legal and Illegal Use of the Internet: Implications
for Educators
Kevin Johnson & Nancy Groneman
To cite this article: Kevin Johnson & Nancy Groneman (2003) Legal and Illegal Use of the
Internet: Implications for Educators, Journal of Education for Business, 78:3, 147-152, DOI:
10.1080/08832320309599712
To link to this article: http://dx.doi.org/10.1080/08832320309599712
Published online: 31 Mar 2010.
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Date: 12 January 2016, At: 23:48
Legal and Illegal Use of the Internet:
Implications for Educators
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KEVIN JOHNSON
NANCYGRONEMAN
Emporia State University
Emporia, Kansas
L
egal concerns arise whenever a
new technology is developed. The
widespread use of the Internet in
schools, businesses, and homes has
brought about more legal concerns than
the use of other new technologies, such
as fax machines and scanners, has. Currently, many educators are not sure
which activities and policies constitute
legal-and illegal-use of the Internet.
Laws relating to Internet use affect
school administrators, teachers, staff, and
students. Educational institutions face a
number of issues concerning ownership
of Web sites and their contents, restriction of use of the Internet for noneducational purposes, ownership of e-mails,
and copyright laws. Questions arise
about copyright laws because the educational community and business organizations must adhere to different laws.
Teachers who have students develop Web
pages want to know the legal issues surrounding the copying of designs and
graphic images from other World Wide
Web sites. School administrators want to
know the legal issues surrounding (a) the
restriction of e-mail messages sent by
students and (b) the accessing of e-mails
sent by school employees.
In the United States, the law handles
legal issues related to the Internet or any
new technology in three ways: (a) by
reducing the issues to their basic components, (b) by applying current statutes
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ABSTRACT. School administrators,
teachers, staff, and students have legal
concerns regarding Web-related issues
such as ownership of Web sites and
their contents, acceptable use of the
Internet for educational purposes, and
ownership of e-mails. In this article,
the authors review current statutes and
laws dealing with copyrights, trademarks, and patents. Their investigation
shows that, for faculty, the fair use
doctrine in copyright law allows great
latitude of use of material on Web sites
for classroom activities and research.
Because many schools own or lease
computers, Web servers, and/or Internet services, they have the right to
control their property by setting policies that restrict use of the Internet by
students and personnel.
obligations, and remedies to the Internet
in a manner consistent with the public
interest yet conducive to the Internet’s
ability to realize its positive commercial.
social, and political potential. (Delta &
Matsuura, 2000)
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and case law, and (c) by passing new
statutes as needed. However, new
statutes will be passed only to overrule
case law or enact new regulations.
Though some people will undoubtedly
be ready to create new law and a new law
may be created, this approach to legal
analysis of the Internet is the method
now being used in the United States:
As the global information infrastructure matures, effective new statutes, regulations, and policies will be developed.
However, the legal community needs
time to learn about the Internet and its
applications to ensure that the new laws
and regulations will not be counterproductive (Delta & Matsuura, 2000).
In this study, we sought to apply current statutes and case law to legal issues
related to Internet use and to determine
the implications of those laws for educational institutions. Specifically, we
considered the following questions:
1. How does intellectual property law
apply to the Internet?
a. Who owns the information on the
Internet (e.g., e-mail messages and
Web sites)?
b. What areas of the law protect information on the Internet?
c. What are the consequences of
copyright infringement?
d. What are the consequences of
trademark infringement?
e. What legal use can educators make
of protected information on the
Internet?
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This nation’s existing framework of legal
principles and institutions is more than
adequate to protect the public interest
while facilitating the realization of the
full positive potential of the Internet. . .
Based on an accurate, factual understanding of today’s Internet and its potential
capabilities, the legal community can
effectively apply existing legal rights,
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f. How can educational organizations
avoid infringement of protected
information?
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2. How do “fair use” and “public
domain” exceptions to copyright law
apply to educational use of the Internet?
3. How can liability for educational
use of information on the Internet be
avoided?
4. Is it legal for schools to set computer usage policies that restrict access to
certain Internet sites?
5. What are the consequences of
improper use of information on the
Internet?
Method for Legal Analysis
As in the scientific analysis of a new
animal, in analyzing the Internet the law
asks, What is it? and What are the new
facts related to this new technology? The
answers to those two questions will show
that the Internet merely provides a new
way to do what business has been doing
for years-storing, retrieving, organizing,
displaying, and communicating information. Each of these issues already is being
addressed by established legal principles
such as intellectual property law, confidentiality and privacy law, constitutional
law, contract law, and even criminal law.
The continuing development of the
Internet and its associated applications
has created a rich new factual context in
which the many existing principles of law
are already being applied. That new factual context is creating a variety of new
situations in which existing legal principles must be applied (Delta & Matsuura,
2000).
Because the Internet does not pose a
new set of legal issues, we used the typical legal research methods-analysis of
current and relevant state and federal
statutes and laws-to address our questions. The relevant statutes and laws primarily deal with copyright protection,
patents, trademarks, and intellectual
property law.
apply to the Internet? The Copyright
Act states that an author owns his or her
work “fixed in any medium or expression, now known or later developed. . .”
(17 U.S.C. 102a). Although the Copyright Act was passed into law well
before the Internet was even imagined,
this quote clearly shows that Congress
intended it to apply to technological
advances without having to be amended. Authors own their works (17 U.S.C.
106).Therefore, e-mail is owned by the
person who wrote the message, not by
the person who receives it or any other
person. A Web site is owned by the person or entity that either created it or had
it created for them. Professional Web
site designers do not own the sites that
they are hired to design and create. The
information that appears on the Internet,
regardless of form or content, is a tangible expression of someone’s idea. This
“someone” is considered the author of
the information and its owner.
In terms of access to Internet sites, an
educational entity has the legal right to
set and enforce the conditions under
which its property is to be used. This
legal right is based on the fact that the
school owns the computers, owns or
leases use of a Web server, and pays for
the lease of the line that allows students,
faculty, and staff to have access to the
Internet. Although a school has the legal
right to restrict use of the Internet, school
administrators may consider the rights to
freedom of the press and freedom of
speech and decide not to restrict Internet
use, especially at the university level.
A variety of laws protect information
placed on and transmitted over the
Internet, including copyright, trademark, and patent laws.
ly applying to the Internet (MA1Systems
Corp. v. Peak Computer; Inc., 991 E2d
51 1, 1993; Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 1988; and
Advanced Computer Servs. v. MA1 Systems Corp., 845 F. Supp. 356, 1994).
Copyright law is found in federal
statutes collectively known as the Copyright Act (17 U.S.C.) as well as in case
law that interprets and applies this act.
In educational settings, the term “plagiarism’’ is used more frequently by
teachers than the term “copyright
infringement,” but it is the same thing,
and the consequences of plagiarism are
found in copyright law. The creator of
information on the Internet is referred to
as an author under copyright law (17
U.S.C. 102a). Whether an e-mail message confirming a lunch appointment or
a great American novel, the information
created by the author is referred to as
“the creative work” or, simply, “the
work.” An author’s legal rights in his or
her work are created and attach automatically when the work is expressed in
some fixed form, such as in the writing
of an e-mail message or the creating or
modifying of a Web site. Copyright law
automatically protects an author’s work
when the author (a) expresses an original idea, (b) expresses it in a fixed form,
and (c) places a copyright notice on the
work (17 U.S.C. 101).
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Findings
Who owns the information on the
Internet (e.g., e-mail and Web sites)?
How does intellectual property law
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Journal of Education for Business
Copyright Law
Copyright law tends to be the prima-
ry source for determining legal rights
and obligations with respect to information appearing on the Internet. In its
Final Report of the National Commission on New Technological Uses of
Copyrighted Works (1978), Congress
stated that copyright protection does
extend to works “created in digital form,
those recorded as a sequence of binary
digits.” A number of court cases also
have interpreted copyright law as clear-
Expression of an Original Idea
A work is original under copyright
law when it is an independent creation
and not copied from another work. The
subject of the work does not need to be
new or unique, nor is the inclusion of
information quoted from other sources
prohibited for the work to be original
under copyright law. It is only necessary
that the completed work be the author’s
work based on his or her own idea (Feist
Publication, Inc. v. Rural Telephone
Service Co., 499 U.S. 340, 1991).
In a Fixed Form
A work is fixed when the manner in
which it has been expressed “is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a period of
more than transitory duration” ( 17
U.S.C. 101). Examples of original
works expressed in fixed form on the
Internet include any e-mail message; enewsletters, magazines, or newspapers,
whether placed in part or in whole on
the Internet; the content of an Internet
conference or seminar; a Web site in its
entirety, each page on the Web site, and
the contents of each page included in
the Web site; an advertisement; a photograph; graphics; video clips; audio
clips; data bases; and any other work
put into cyberspace by its author.
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Attachment of Copyright Notice
described above without the prior written
permission of the author, that person is
infringing the copyright of the author and
violating the law (17 U.S.C. 501a). This
means that if a unique idea is sent in an email, and the receiver of the e-mail makes
copies of that unique idea or presents the
idea as his or her own, that individual is
infringing the author’s copyright.
What are the consequences of copyright infringement? An author’s remedies against an infringer include a court
order that the infringer stop the infringement and that any illegally made copies
of the work be destroyed. The infringer
can also be ordered by the court to pay
any actual damages or the dollar value
of any actual loss suffered by the author
as a result of the infringement, as well
as statutory damages in an amount ranging between $500 and $20,000. There
are no real defenses to infringement;
either it occurred or it did not. However,
an infringer who knowingly and intentionally infringed an author’s work, as
opposed to an “innocent infringer,” can
be assessed statutory damages as high
as $100,000 (17 U.S.C. 502, 504).
Though the actual infringer will be
liable for the damages described, so will
anyone else who has the authority and
the ability to supervise the actions of the
infringer. If that person derived some
financial benefit from the infringement,
that person is also liable for the
infringement even if he or she had no
knowledge of it (Shapiro, Bernstein &
Co. v. H.L. Green Co., 316 F.2d 304,
1963). A person who has knowledge
that someone else is infringing a copyright and who “induces, causes or materially contributes to the infringing conduct” can also be liable for the
infringement (Gershwin Publishing
Corp. v. Columbia Artists Management,
h e . , 443 E2d 1159, 1971).
The person responsible for another
person who is engaging in copyright
infringement can be liable for damages
for that infringement, whether or not they
have actual knowledge of the infringement. A school district or educational
institution will be liable for infringement
committed by its staff and teachers. A
teacher commits infringement by his or
her own actions but also by allowing his
or her students to commit acts of
infringement.
Trademark, Service Mark, Trade
Names, and Trade Dress
Along with copyright law, trademark
law is a significant source of law offering protection to an owner of content
placed on the Internet. Trademark law is
found in federal statutes (Lanham Act,
15 U.S.C., 1946). The owner of a trademark has the exclusive legal right to use
his or her trademark as a type of identification for the owner’s products, services, company name, product name,
service name, and product design and
packaging (Lanham Act, 15 U.S.C.
1051, 1946). Trademark symbols often
are seen on business Web sites next to
graphic images such as company logos.
Companies spend a great deal of time
and money developing trademarks that
are distinctive and representative of the
image that they want for their products
and services. With so much at stake,
companies want legal protection to prevent others from using their trademark
and, thereby, stealing their company’s
reputation. Trademark law offers this
protection.
When a company claims trademark
rights, it places one of three symbols
alongside the mark that it is using: 8 (a
trademark registered with the U.S.
Patent and Trademark Office); TM (an
unregistered trademark); or SM (an
unregistered service mark). Even without the use of these symbols, however,
the company can still claim some rights
in its trademark.
Use of another’s trademarked image,
design, logo, title, or phrase without
permission of the owner is trademark
infringement, whether the trademark is
registered or unregistered. Trademark
infringement is most likely to occur in a
Web site design class. For example, students may copy a trademarked image
from a Web site and use that image on
their own Web page. Such an act can
become a legal problem in Web design
classes that create Web sites for local
businesses. In such a case, the student,
the teacher, the educational organization, and the business for whom the Web
site was created could all become liable
for trademark infringement.
Liability for trademark infringement
is proven when a person copies another’s trademarked work or uses a similar
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Standard copyright notices are
“Copyright 2002 by John Doe” or “0
2002 by John Doe.” A copyright notice
must contain the word “copyright” or
the symbol 0,the year in which the
work was created, and the name of the
person claiming the copyright. An
author may still assert his or her rights
in the work under copyright law even if
the copyright notice is defective or lacking. E-mail messages do not usually
have a copyright notice but still may be
considered copyrighted by the author.
Other forms of Internet communication
are more likely to have a copyright
notice.
The protected rights of an author in
his or her work under copyright law
(17 U.S.C. 106) include the exclusive
rights to
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1. reproduce the work;
2. distribute copies of the work
through selling, leasing, giving away, or
any method of transferring or passing
one or more copies of the work to
another;
3. prepare derivative works based on
the work by revising, modifying,
arranging, or otherwise preparing a new
or different version of the work;
4. perform the work publicly by reading, singing, or otherwise expressing the
content of the work in front of at least
one other person; and
5. display the work publicly by posting, showing, advertising, or otherwise
presenting the work in some manner
that allows it to be seen by at least one
other person.
If a person other than the author of a
work uses the work in any manner
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opment of a searchable database or supply chain software could be patented, as
could the method by which a particular
link operates between Web sites.
A patent can be obtained only by
going through the formal application
process with the U.S. Trademark and
Patent Office. This application process
is expensive, relatively complicated,
and often requires the use of a patent
attorney.
A patented invention must contain a
notice that it is patented and marked
with the word “patent,” followed by the
patent registration number issued by the
U.S. Patent Office. An infringer is anyone who uses a patented item without
the permission of the patent owner (35
U.S.C. 154a1, 271). In addition, the
patent infringer has the burden of proving that his or her alleged act of
infringement is not the infringement of
a valid and enforceable patent (35
U.S.C. 282).
What legal use can be made of protected information on the Internet? The
best answer is that the protected information can be used only as expressly
authorized in writing by the owner of
the information. There is, however, a
fair use exception to this rule (see
below).
Information appearing on the Internet is easy to access and copy. However, this ease of copying is never justification for infringing on the rights
protected by copyright, trademark, or
patent law. Just because it is easy to
steal something, the situation never justifies the theft even if the owner never
discovers it.
How can educational organizations
avoid infringement of protected information? Protected information can be
used only in a manner authorized by the
owner of the information, unless a fair
use exception applies.
trademark and thereby causes confusion. When determining whether sufficient confusion has been created by an
alleged act of trademark infringement,
courts will consider (a) the similarity of
the marks in question, (b) the similarity
of the products or services of the trademark owner and the alleged infringer,
(c) whether the parties involved conduct
business or otherwise have a presence in
the same or similar market place, (d)
whether there has been any actual confusion between the two marks, and (e)
the intent of the alleged infringer.
Courts want to know whether the
infringer knew, suspected, or had reason
to believe that he or she was using a
mark similar to that of another (Polaroid
Corp. v. Polarad Elec. Corp., 287 E2d
492, 1961; McKinnon & Co., v. Hyvis
Oils, Inc. 88 E2d 699, 1937; Seven-Up
Co. v. Get-Up Corp., 137 U.S.P.Q. 871,
1963; Triangle Pub., Inc. v. Rohrlich,
167 E2d 969, 1948; and Yale Electric
Corp. v. Robertson, 26 E2d 972, 1928).
What are the consequences of trademark infringement? When infringement
is discovered, the owner of the trademark will typically contact the infringer
with a written notice describing the
infringement and demanding that it
cease immediately. If this does not
resolve the matter, the following three
remedies are available to the trademark
owner: (a) He or she may sue the
infringer for actual losses from the
infringement, (b) the trademark owner
may obtain punitive damages if the
infringement was willful and not merely done out of ignorance or an honest
mistake, and/or (c) the infringer will be
ordered to stop using the trademark
(Hesmer Foods, Inc. v. Campbell Soup
Co., 346 E2d 356, 1965).
the subject matter of the license, the use
being authorized, who is being given
permission to use the information as
described, and the fee being charged for
the license. The terms of a license can
vary greatly depending on who owns the
information, the requested use of it, and
who is making the request for the
license. The terms and conditions of a
license requested by an education organization may be easier to meet and less
expensive than those for a license
requested for a commercial purpose.
Many companies, but not all, will readily grant a license to assist in legitimate
educational activities.
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Patents
Patent law is found in the Patent Act
(35 U.S.C.). Patent law applies more to
systems or processes that make the
Internet work than it does to the content
that appears on a Web site or in an email message. Patent law states that
“any new and useful process, machine,
manufacture, or composition of matter,
or any new and useful improvements
thereof’ can be patented (35 U.S.C.
101, 102, 103). For example, the devel150
Enforcing a Policy Prohibiting
Infringement
Each organization should set a policy
that defines infringement, prohibits acts
of infringement, and describes how personnel can address specific inquiries
about an intended use of protected
information. This policy should be the
same throughout each school district or
university. It quickly becomes difficult
to use and monitor a policy that has various exceptions and different conditions
from department to department within
an organization.
It is necessary to monitor personnel,
teachers, students, and others who will
have access to protected information to
ensure that they use the information
according to organizational policy.
Anyone found not to be in compliance with organizational policy should
be confronted and dealt with appropriately. This could include going over the
policy with the person, restricting or
revoking his or her access to protected
information on the Internet, other disciplinary measures as determined by the
organization, termination of employment, or suspensiodexpulsion from the
organization.
Obtaining a License
Before using information that
appears on the Internet and that is protected by intellectual property laws, an
individual must first contact the owner
of the information and obtain his or her
permission. Such permission is referred
to as a license. All licenses are negotiated and describe the information that is
Fair Use
How do “fair use” exceptions to
copyright law apply to educational use
of the Internet? The rights of an author
in his or her own work are limited by
copyright law. An exception to these
rights, referred to as the fair use doctrine, is described as follows:
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“Fair use” is a privilege in others than the
owner of a copyright to use the copyrighted material in a reasonable manner without his consent, . . [C]ourts in passing
upon particular claims of infringement
must occasionally subordinate the copyright holder’s interest in a maximum
financial return to the greater public interest in the development of art,science and
industry. (Lish v. Harper’s Magazine
Foundation, 807 E Supp. 1090, 1992)
The fair use doctrine allows individuals other than the author to use the
author’s work for certain purposes without the author’s permission. In fact, fair
use allows the use of an author’s work
even over the objection of the author.
The following four criteria are identified in the Copyright Act (17 U.S.C.
107) and are used by courts to determine whether the particular use of a
copyrighted work is a “fair use” of the
work:
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
4. The effect of the use on the potential market for or value of the copyrighted work
Those criteria have been analyzed by
the courts for determination of the following five specific fair uses of copyrighted works:
1. Criticism and comment. It is permissible to copy portions of a copyrighted
work when the purpose of the copying is
to use the copied portions in a criticism
of or a comment about the work. (Rosemont Enterprises, Inc. v. Random House,
Inc., 366 F.2d 303, 1966, cert. denied,
385 U.S. 1009, 1967)
2. Parody and satire. Satire is a type of
criticism, and parody is an extension of
satire. Because both satire and parody
have their roots in criticism, and
because criticism is a permitted exception to an author’s rights in his or her
copyrighted work, the use of a copyrighted work for the purposes of parody
and satire is allowed as an exception to
copyright law. However, if the parody
and satire are more for the purposes of
comedy and humor and less for criti-
cism, the use of the work may still be
infringement. The element of criticism
should be the larger purpose for which
the copyrighted work is copied, even if
parody and satire are associated with it
(Elsmere Music, Inc. v. NBC, 623 F.2d
252, 1980). As stated in Campbell v.
Acuff-Rose Music, Inc., 114 S.Ct. 1164
(1994), “The threshold question when
fair use is raised in defense of parody is
whether a parodic character may reasonably be perceived.” It does not matter whether the parody is in good or bad
taste. In a classroom situation, an example of fair use of a Web site is when students use Web design principles to critique various business Web sites or
when a marketing class critiques on-line
shopping Web sites.
3. Scholarship and research. The
copying of a copyrighted work for the
purpose of scholarship and research has
long been recognized as fair use of a
work. However, simply claiming a need
for copies of a work for scholarship and
research purposes does not create an
unlimited “right” to reproduce a copyrighted work. Only those portions of a
work actually needed for research purposes may be copied. Proper credit must
also be given by the researcher to the
author of the work copied and used in
the research.
4. News reporting. Facts as reported
or described in a copyrighted work can
be copied for the purpose of reporting
news. However, neither a school nor a
news-reporting agency can simply copy
the report of another news-reporting
agency and claim fair use when rereporting it (Los Angeles News Service
v. KCAL-7’V Channel 9, 42 U.S.P.Q.2d
1080, 1997). For example, students in a
journalism class cannot simply copy
news from the New York Times Web site
and place it on their own school’s Web
site without giving credit to the New
York Times.
5 . Teaching. The use of copyrighted
works for teaching purposes is fair use,
but it does not include unlimited use.
The copying must be for instructional
purposes. For example, under the fair
use doctrine, a teacher may download
several Web sites and show them to students to illustrate principles of effective
Web design. However, the following
exceptions exist. It is not fair use when
(a) a teacher, without prior written permission, makes copies of another
teacher’s work for use in his or her own
article or book (Marcus v. Rowley, 695
F.2d 1171, 1983); (b) a teacher puts
together his or her own anthology of
works by others and has it copied for
distribution and use in his or her classes
(Basic Books, Inc. v. Kinko’s Graphics
Corp., 758 F. Supp. 1522, 1991); or (c)
a teacher videotapes educational programs or other broadcasts for later use
in the classroom, if specific permission
for such videotaping has not been given
(Encyclopedia Britunnica Educ. Corp.
v. Crooks, 558 F. Supp. 1247, 1983).
To assist in the teaching aspect of the
fair use exception to copyright law, an
“Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions” was reached by the
combined efforts of the Authors League
of America and the Association of
American Publishers. Though these
guidelines are not the law and do not
have the force and effect of law, they
have been recognized in the legislative
history of the Copyright Act as the
“minimum and not the maximum standards of educational fair use” (H. Rept.
94-1476, 72). The guidelines do not
mention the Internet, but they apply to
classroom use of information on the
Internet. They are intended to be copied
and distributed to educators as an aid in
complying with the teaching portion of
the fair use doctrine. The guidelines
describe the following as fair use of a
copyrighted work for teaching purposes, whether the work is on the Internet
or in a hard copy format: copying a single chapter from a book; an article from
a magazine or newspaper; a short story,
essay, or poem; and a chart, graph, diagram drawing, cartoon, or picture from
a book, magazine, or newspaper, if the
sole intent is to use the work in the
teacher’s own scholarly research or in
class preparation. This use does not
allow copying for distribution to students or to others.
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Copies of the works described above
can be made for distribution in the
classroom if the legitimate educational
need to make the copies is time sensitive
and there is not enough time to acquire
permission from the copyright owner; if
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no part of the decision to make the
copies is motivated by a desire to avoid
purchasing the work from which the
copies are being made; if such copying
is not done more than nine times by a
teacher in the same academic year; and
if each copy contains the proper copyright notice showing the author’s name,
the title of the original work, and the
year of the copyright.
The decision to copy any work cannot come from an administrator or anyone other than the teacher who is making the copies. Students may not be
charged for being given copies of a
copyrighted work, except for the actual
copying cost, and the same work can
only be copied once by the teacher.
Public Domain
be used. These policies, which should
include uses of Web sites and searches
on the Internet as well as e-mail uses,
then must be enforced consistently.
These policies offer the single best
method for avoiding liability for
infringement of copyright, trademark,
or patent.
An educational entity will, generally,
have all the authority and discretion that
it needs to set and enforce these policies
because it will undoubtedly own or
lease the lines and equipment over
which the Internet is accessed by its personnel and students. As the owner or
leaser of this property, the school has
the legal right to set and enforce the
conditions of how its property is to be
used. If it is discovered that someone is
using the Internet improperly, that person can be disciplined or, if that person
is an employee, terminated from
employment. However, at many universities, administrators often balance their
legal right to control use of the Internet
by personnel and students with their
employees’ and students’ right to freedom of the press and freedom of speech.
School administrators often consider
both the legal implications and the political implications of setting Internet use
policies and enforcing those policies.
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Any piece of information that is in
the public domain is no longer protected and can be freely used by anyone.
The only caveat is making sure that the
work is actually in the public domain.
For copyrighted works created after
January 1, 1978, the term of copyright
protection is the life of the author plus 50
years (17 U.S.C. 302a). After 50 years,
the work is considered in the public
domain. For works created prior to January 1, 1978, the copyright term is 28
years from the date the work was created,
with one renewal term of 28 more years
possible (17 U.S.C. 302b). After the
author’s death, the copyright in the work
will continue to be owned by someone,
such as the author’s estate, the author’s
heirs, or a publisher or other entity that
152
had previously purchased the copyright,
until the copyright expires. When the
copyright term for any work expires, the
work is no longer protected by copyright
and is forever in the public domain.
A trademark will only go into the public domain, or become “generic,” if it has
been abandoned by the trademark owner.
Abandonment most often occurs when
the owner either goes out of business or
discontinues the product or service covered by the trademark (15 U. S. C.).
Various types of patents exist, each
with its own term, generally running for
17-20 years. Once a patent’s term
expires, the legal rights granted by the
patent expire and cannot be renewed. At
the end of the patent term, the invention
automatically falls into the public
domain and can be freely used and
exploited by anyone desiring to do so
(35 U.S.C. 154al).
Journal of Education for Business
Conclusions and
Recommendations
School administrators, faculty members, staff, and students must understand when and how they can use information legally that is obtained over the
Internet. Every communication, message, bit of information, image, sound,
or design that appears on the Internet is
owned by someone. Therefore, each
educational institution should establish
a policy for use of the Internet by its
employees, students, faculty members,
and administrators, as well as a specific
policy for how information owned by
another and taken from the Internet can
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REFERENCES
Delta, G., & Matsuura, J. (2000) Law of the Internet [Section 1.061. New York: Aspen Law &
Business.
Final Report of the National Commission on New
Technological Uses of Copyrighted Works (pp.
54-55). (1979). Washington, DC: Library of
Congress, 54-55.
ISSN: 0883-2323 (Print) 1940-3356 (Online) Journal homepage: http://www.tandfonline.com/loi/vjeb20
Legal and Illegal Use of the Internet: Implications
for Educators
Kevin Johnson & Nancy Groneman
To cite this article: Kevin Johnson & Nancy Groneman (2003) Legal and Illegal Use of the
Internet: Implications for Educators, Journal of Education for Business, 78:3, 147-152, DOI:
10.1080/08832320309599712
To link to this article: http://dx.doi.org/10.1080/08832320309599712
Published online: 31 Mar 2010.
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Download by: [Universitas Maritim Raja Ali Haji]
Date: 12 January 2016, At: 23:48
Legal and Illegal Use of the Internet:
Implications for Educators
Downloaded by [Universitas Maritim Raja Ali Haji] at 23:48 12 January 2016
KEVIN JOHNSON
NANCYGRONEMAN
Emporia State University
Emporia, Kansas
L
egal concerns arise whenever a
new technology is developed. The
widespread use of the Internet in
schools, businesses, and homes has
brought about more legal concerns than
the use of other new technologies, such
as fax machines and scanners, has. Currently, many educators are not sure
which activities and policies constitute
legal-and illegal-use of the Internet.
Laws relating to Internet use affect
school administrators, teachers, staff, and
students. Educational institutions face a
number of issues concerning ownership
of Web sites and their contents, restriction of use of the Internet for noneducational purposes, ownership of e-mails,
and copyright laws. Questions arise
about copyright laws because the educational community and business organizations must adhere to different laws.
Teachers who have students develop Web
pages want to know the legal issues surrounding the copying of designs and
graphic images from other World Wide
Web sites. School administrators want to
know the legal issues surrounding (a) the
restriction of e-mail messages sent by
students and (b) the accessing of e-mails
sent by school employees.
In the United States, the law handles
legal issues related to the Internet or any
new technology in three ways: (a) by
reducing the issues to their basic components, (b) by applying current statutes
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ABSTRACT. School administrators,
teachers, staff, and students have legal
concerns regarding Web-related issues
such as ownership of Web sites and
their contents, acceptable use of the
Internet for educational purposes, and
ownership of e-mails. In this article,
the authors review current statutes and
laws dealing with copyrights, trademarks, and patents. Their investigation
shows that, for faculty, the fair use
doctrine in copyright law allows great
latitude of use of material on Web sites
for classroom activities and research.
Because many schools own or lease
computers, Web servers, and/or Internet services, they have the right to
control their property by setting policies that restrict use of the Internet by
students and personnel.
obligations, and remedies to the Internet
in a manner consistent with the public
interest yet conducive to the Internet’s
ability to realize its positive commercial.
social, and political potential. (Delta &
Matsuura, 2000)
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and case law, and (c) by passing new
statutes as needed. However, new
statutes will be passed only to overrule
case law or enact new regulations.
Though some people will undoubtedly
be ready to create new law and a new law
may be created, this approach to legal
analysis of the Internet is the method
now being used in the United States:
As the global information infrastructure matures, effective new statutes, regulations, and policies will be developed.
However, the legal community needs
time to learn about the Internet and its
applications to ensure that the new laws
and regulations will not be counterproductive (Delta & Matsuura, 2000).
In this study, we sought to apply current statutes and case law to legal issues
related to Internet use and to determine
the implications of those laws for educational institutions. Specifically, we
considered the following questions:
1. How does intellectual property law
apply to the Internet?
a. Who owns the information on the
Internet (e.g., e-mail messages and
Web sites)?
b. What areas of the law protect information on the Internet?
c. What are the consequences of
copyright infringement?
d. What are the consequences of
trademark infringement?
e. What legal use can educators make
of protected information on the
Internet?
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This nation’s existing framework of legal
principles and institutions is more than
adequate to protect the public interest
while facilitating the realization of the
full positive potential of the Internet. . .
Based on an accurate, factual understanding of today’s Internet and its potential
capabilities, the legal community can
effectively apply existing legal rights,
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January/February 2003
147
zy
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f. How can educational organizations
avoid infringement of protected
information?
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2. How do “fair use” and “public
domain” exceptions to copyright law
apply to educational use of the Internet?
3. How can liability for educational
use of information on the Internet be
avoided?
4. Is it legal for schools to set computer usage policies that restrict access to
certain Internet sites?
5. What are the consequences of
improper use of information on the
Internet?
Method for Legal Analysis
As in the scientific analysis of a new
animal, in analyzing the Internet the law
asks, What is it? and What are the new
facts related to this new technology? The
answers to those two questions will show
that the Internet merely provides a new
way to do what business has been doing
for years-storing, retrieving, organizing,
displaying, and communicating information. Each of these issues already is being
addressed by established legal principles
such as intellectual property law, confidentiality and privacy law, constitutional
law, contract law, and even criminal law.
The continuing development of the
Internet and its associated applications
has created a rich new factual context in
which the many existing principles of law
are already being applied. That new factual context is creating a variety of new
situations in which existing legal principles must be applied (Delta & Matsuura,
2000).
Because the Internet does not pose a
new set of legal issues, we used the typical legal research methods-analysis of
current and relevant state and federal
statutes and laws-to address our questions. The relevant statutes and laws primarily deal with copyright protection,
patents, trademarks, and intellectual
property law.
apply to the Internet? The Copyright
Act states that an author owns his or her
work “fixed in any medium or expression, now known or later developed. . .”
(17 U.S.C. 102a). Although the Copyright Act was passed into law well
before the Internet was even imagined,
this quote clearly shows that Congress
intended it to apply to technological
advances without having to be amended. Authors own their works (17 U.S.C.
106).Therefore, e-mail is owned by the
person who wrote the message, not by
the person who receives it or any other
person. A Web site is owned by the person or entity that either created it or had
it created for them. Professional Web
site designers do not own the sites that
they are hired to design and create. The
information that appears on the Internet,
regardless of form or content, is a tangible expression of someone’s idea. This
“someone” is considered the author of
the information and its owner.
In terms of access to Internet sites, an
educational entity has the legal right to
set and enforce the conditions under
which its property is to be used. This
legal right is based on the fact that the
school owns the computers, owns or
leases use of a Web server, and pays for
the lease of the line that allows students,
faculty, and staff to have access to the
Internet. Although a school has the legal
right to restrict use of the Internet, school
administrators may consider the rights to
freedom of the press and freedom of
speech and decide not to restrict Internet
use, especially at the university level.
A variety of laws protect information
placed on and transmitted over the
Internet, including copyright, trademark, and patent laws.
ly applying to the Internet (MA1Systems
Corp. v. Peak Computer; Inc., 991 E2d
51 1, 1993; Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 1988; and
Advanced Computer Servs. v. MA1 Systems Corp., 845 F. Supp. 356, 1994).
Copyright law is found in federal
statutes collectively known as the Copyright Act (17 U.S.C.) as well as in case
law that interprets and applies this act.
In educational settings, the term “plagiarism’’ is used more frequently by
teachers than the term “copyright
infringement,” but it is the same thing,
and the consequences of plagiarism are
found in copyright law. The creator of
information on the Internet is referred to
as an author under copyright law (17
U.S.C. 102a). Whether an e-mail message confirming a lunch appointment or
a great American novel, the information
created by the author is referred to as
“the creative work” or, simply, “the
work.” An author’s legal rights in his or
her work are created and attach automatically when the work is expressed in
some fixed form, such as in the writing
of an e-mail message or the creating or
modifying of a Web site. Copyright law
automatically protects an author’s work
when the author (a) expresses an original idea, (b) expresses it in a fixed form,
and (c) places a copyright notice on the
work (17 U.S.C. 101).
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Findings
Who owns the information on the
Internet (e.g., e-mail and Web sites)?
How does intellectual property law
148
Journal of Education for Business
Copyright Law
Copyright law tends to be the prima-
ry source for determining legal rights
and obligations with respect to information appearing on the Internet. In its
Final Report of the National Commission on New Technological Uses of
Copyrighted Works (1978), Congress
stated that copyright protection does
extend to works “created in digital form,
those recorded as a sequence of binary
digits.” A number of court cases also
have interpreted copyright law as clear-
Expression of an Original Idea
A work is original under copyright
law when it is an independent creation
and not copied from another work. The
subject of the work does not need to be
new or unique, nor is the inclusion of
information quoted from other sources
prohibited for the work to be original
under copyright law. It is only necessary
that the completed work be the author’s
work based on his or her own idea (Feist
Publication, Inc. v. Rural Telephone
Service Co., 499 U.S. 340, 1991).
In a Fixed Form
A work is fixed when the manner in
which it has been expressed “is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a period of
more than transitory duration” ( 17
U.S.C. 101). Examples of original
works expressed in fixed form on the
Internet include any e-mail message; enewsletters, magazines, or newspapers,
whether placed in part or in whole on
the Internet; the content of an Internet
conference or seminar; a Web site in its
entirety, each page on the Web site, and
the contents of each page included in
the Web site; an advertisement; a photograph; graphics; video clips; audio
clips; data bases; and any other work
put into cyberspace by its author.
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Attachment of Copyright Notice
described above without the prior written
permission of the author, that person is
infringing the copyright of the author and
violating the law (17 U.S.C. 501a). This
means that if a unique idea is sent in an email, and the receiver of the e-mail makes
copies of that unique idea or presents the
idea as his or her own, that individual is
infringing the author’s copyright.
What are the consequences of copyright infringement? An author’s remedies against an infringer include a court
order that the infringer stop the infringement and that any illegally made copies
of the work be destroyed. The infringer
can also be ordered by the court to pay
any actual damages or the dollar value
of any actual loss suffered by the author
as a result of the infringement, as well
as statutory damages in an amount ranging between $500 and $20,000. There
are no real defenses to infringement;
either it occurred or it did not. However,
an infringer who knowingly and intentionally infringed an author’s work, as
opposed to an “innocent infringer,” can
be assessed statutory damages as high
as $100,000 (17 U.S.C. 502, 504).
Though the actual infringer will be
liable for the damages described, so will
anyone else who has the authority and
the ability to supervise the actions of the
infringer. If that person derived some
financial benefit from the infringement,
that person is also liable for the
infringement even if he or she had no
knowledge of it (Shapiro, Bernstein &
Co. v. H.L. Green Co., 316 F.2d 304,
1963). A person who has knowledge
that someone else is infringing a copyright and who “induces, causes or materially contributes to the infringing conduct” can also be liable for the
infringement (Gershwin Publishing
Corp. v. Columbia Artists Management,
h e . , 443 E2d 1159, 1971).
The person responsible for another
person who is engaging in copyright
infringement can be liable for damages
for that infringement, whether or not they
have actual knowledge of the infringement. A school district or educational
institution will be liable for infringement
committed by its staff and teachers. A
teacher commits infringement by his or
her own actions but also by allowing his
or her students to commit acts of
infringement.
Trademark, Service Mark, Trade
Names, and Trade Dress
Along with copyright law, trademark
law is a significant source of law offering protection to an owner of content
placed on the Internet. Trademark law is
found in federal statutes (Lanham Act,
15 U.S.C., 1946). The owner of a trademark has the exclusive legal right to use
his or her trademark as a type of identification for the owner’s products, services, company name, product name,
service name, and product design and
packaging (Lanham Act, 15 U.S.C.
1051, 1946). Trademark symbols often
are seen on business Web sites next to
graphic images such as company logos.
Companies spend a great deal of time
and money developing trademarks that
are distinctive and representative of the
image that they want for their products
and services. With so much at stake,
companies want legal protection to prevent others from using their trademark
and, thereby, stealing their company’s
reputation. Trademark law offers this
protection.
When a company claims trademark
rights, it places one of three symbols
alongside the mark that it is using: 8 (a
trademark registered with the U.S.
Patent and Trademark Office); TM (an
unregistered trademark); or SM (an
unregistered service mark). Even without the use of these symbols, however,
the company can still claim some rights
in its trademark.
Use of another’s trademarked image,
design, logo, title, or phrase without
permission of the owner is trademark
infringement, whether the trademark is
registered or unregistered. Trademark
infringement is most likely to occur in a
Web site design class. For example, students may copy a trademarked image
from a Web site and use that image on
their own Web page. Such an act can
become a legal problem in Web design
classes that create Web sites for local
businesses. In such a case, the student,
the teacher, the educational organization, and the business for whom the Web
site was created could all become liable
for trademark infringement.
Liability for trademark infringement
is proven when a person copies another’s trademarked work or uses a similar
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Standard copyright notices are
“Copyright 2002 by John Doe” or “0
2002 by John Doe.” A copyright notice
must contain the word “copyright” or
the symbol 0,the year in which the
work was created, and the name of the
person claiming the copyright. An
author may still assert his or her rights
in the work under copyright law even if
the copyright notice is defective or lacking. E-mail messages do not usually
have a copyright notice but still may be
considered copyrighted by the author.
Other forms of Internet communication
are more likely to have a copyright
notice.
The protected rights of an author in
his or her work under copyright law
(17 U.S.C. 106) include the exclusive
rights to
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1. reproduce the work;
2. distribute copies of the work
through selling, leasing, giving away, or
any method of transferring or passing
one or more copies of the work to
another;
3. prepare derivative works based on
the work by revising, modifying,
arranging, or otherwise preparing a new
or different version of the work;
4. perform the work publicly by reading, singing, or otherwise expressing the
content of the work in front of at least
one other person; and
5. display the work publicly by posting, showing, advertising, or otherwise
presenting the work in some manner
that allows it to be seen by at least one
other person.
If a person other than the author of a
work uses the work in any manner
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149
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opment of a searchable database or supply chain software could be patented, as
could the method by which a particular
link operates between Web sites.
A patent can be obtained only by
going through the formal application
process with the U.S. Trademark and
Patent Office. This application process
is expensive, relatively complicated,
and often requires the use of a patent
attorney.
A patented invention must contain a
notice that it is patented and marked
with the word “patent,” followed by the
patent registration number issued by the
U.S. Patent Office. An infringer is anyone who uses a patented item without
the permission of the patent owner (35
U.S.C. 154a1, 271). In addition, the
patent infringer has the burden of proving that his or her alleged act of
infringement is not the infringement of
a valid and enforceable patent (35
U.S.C. 282).
What legal use can be made of protected information on the Internet? The
best answer is that the protected information can be used only as expressly
authorized in writing by the owner of
the information. There is, however, a
fair use exception to this rule (see
below).
Information appearing on the Internet is easy to access and copy. However, this ease of copying is never justification for infringing on the rights
protected by copyright, trademark, or
patent law. Just because it is easy to
steal something, the situation never justifies the theft even if the owner never
discovers it.
How can educational organizations
avoid infringement of protected information? Protected information can be
used only in a manner authorized by the
owner of the information, unless a fair
use exception applies.
trademark and thereby causes confusion. When determining whether sufficient confusion has been created by an
alleged act of trademark infringement,
courts will consider (a) the similarity of
the marks in question, (b) the similarity
of the products or services of the trademark owner and the alleged infringer,
(c) whether the parties involved conduct
business or otherwise have a presence in
the same or similar market place, (d)
whether there has been any actual confusion between the two marks, and (e)
the intent of the alleged infringer.
Courts want to know whether the
infringer knew, suspected, or had reason
to believe that he or she was using a
mark similar to that of another (Polaroid
Corp. v. Polarad Elec. Corp., 287 E2d
492, 1961; McKinnon & Co., v. Hyvis
Oils, Inc. 88 E2d 699, 1937; Seven-Up
Co. v. Get-Up Corp., 137 U.S.P.Q. 871,
1963; Triangle Pub., Inc. v. Rohrlich,
167 E2d 969, 1948; and Yale Electric
Corp. v. Robertson, 26 E2d 972, 1928).
What are the consequences of trademark infringement? When infringement
is discovered, the owner of the trademark will typically contact the infringer
with a written notice describing the
infringement and demanding that it
cease immediately. If this does not
resolve the matter, the following three
remedies are available to the trademark
owner: (a) He or she may sue the
infringer for actual losses from the
infringement, (b) the trademark owner
may obtain punitive damages if the
infringement was willful and not merely done out of ignorance or an honest
mistake, and/or (c) the infringer will be
ordered to stop using the trademark
(Hesmer Foods, Inc. v. Campbell Soup
Co., 346 E2d 356, 1965).
the subject matter of the license, the use
being authorized, who is being given
permission to use the information as
described, and the fee being charged for
the license. The terms of a license can
vary greatly depending on who owns the
information, the requested use of it, and
who is making the request for the
license. The terms and conditions of a
license requested by an education organization may be easier to meet and less
expensive than those for a license
requested for a commercial purpose.
Many companies, but not all, will readily grant a license to assist in legitimate
educational activities.
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Patents
Patent law is found in the Patent Act
(35 U.S.C.). Patent law applies more to
systems or processes that make the
Internet work than it does to the content
that appears on a Web site or in an email message. Patent law states that
“any new and useful process, machine,
manufacture, or composition of matter,
or any new and useful improvements
thereof’ can be patented (35 U.S.C.
101, 102, 103). For example, the devel150
Enforcing a Policy Prohibiting
Infringement
Each organization should set a policy
that defines infringement, prohibits acts
of infringement, and describes how personnel can address specific inquiries
about an intended use of protected
information. This policy should be the
same throughout each school district or
university. It quickly becomes difficult
to use and monitor a policy that has various exceptions and different conditions
from department to department within
an organization.
It is necessary to monitor personnel,
teachers, students, and others who will
have access to protected information to
ensure that they use the information
according to organizational policy.
Anyone found not to be in compliance with organizational policy should
be confronted and dealt with appropriately. This could include going over the
policy with the person, restricting or
revoking his or her access to protected
information on the Internet, other disciplinary measures as determined by the
organization, termination of employment, or suspensiodexpulsion from the
organization.
Obtaining a License
Before using information that
appears on the Internet and that is protected by intellectual property laws, an
individual must first contact the owner
of the information and obtain his or her
permission. Such permission is referred
to as a license. All licenses are negotiated and describe the information that is
Fair Use
How do “fair use” exceptions to
copyright law apply to educational use
of the Internet? The rights of an author
in his or her own work are limited by
copyright law. An exception to these
rights, referred to as the fair use doctrine, is described as follows:
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“Fair use” is a privilege in others than the
owner of a copyright to use the copyrighted material in a reasonable manner without his consent, . . [C]ourts in passing
upon particular claims of infringement
must occasionally subordinate the copyright holder’s interest in a maximum
financial return to the greater public interest in the development of art,science and
industry. (Lish v. Harper’s Magazine
Foundation, 807 E Supp. 1090, 1992)
The fair use doctrine allows individuals other than the author to use the
author’s work for certain purposes without the author’s permission. In fact, fair
use allows the use of an author’s work
even over the objection of the author.
The following four criteria are identified in the Copyright Act (17 U.S.C.
107) and are used by courts to determine whether the particular use of a
copyrighted work is a “fair use” of the
work:
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
4. The effect of the use on the potential market for or value of the copyrighted work
Those criteria have been analyzed by
the courts for determination of the following five specific fair uses of copyrighted works:
1. Criticism and comment. It is permissible to copy portions of a copyrighted
work when the purpose of the copying is
to use the copied portions in a criticism
of or a comment about the work. (Rosemont Enterprises, Inc. v. Random House,
Inc., 366 F.2d 303, 1966, cert. denied,
385 U.S. 1009, 1967)
2. Parody and satire. Satire is a type of
criticism, and parody is an extension of
satire. Because both satire and parody
have their roots in criticism, and
because criticism is a permitted exception to an author’s rights in his or her
copyrighted work, the use of a copyrighted work for the purposes of parody
and satire is allowed as an exception to
copyright law. However, if the parody
and satire are more for the purposes of
comedy and humor and less for criti-
cism, the use of the work may still be
infringement. The element of criticism
should be the larger purpose for which
the copyrighted work is copied, even if
parody and satire are associated with it
(Elsmere Music, Inc. v. NBC, 623 F.2d
252, 1980). As stated in Campbell v.
Acuff-Rose Music, Inc., 114 S.Ct. 1164
(1994), “The threshold question when
fair use is raised in defense of parody is
whether a parodic character may reasonably be perceived.” It does not matter whether the parody is in good or bad
taste. In a classroom situation, an example of fair use of a Web site is when students use Web design principles to critique various business Web sites or
when a marketing class critiques on-line
shopping Web sites.
3. Scholarship and research. The
copying of a copyrighted work for the
purpose of scholarship and research has
long been recognized as fair use of a
work. However, simply claiming a need
for copies of a work for scholarship and
research purposes does not create an
unlimited “right” to reproduce a copyrighted work. Only those portions of a
work actually needed for research purposes may be copied. Proper credit must
also be given by the researcher to the
author of the work copied and used in
the research.
4. News reporting. Facts as reported
or described in a copyrighted work can
be copied for the purpose of reporting
news. However, neither a school nor a
news-reporting agency can simply copy
the report of another news-reporting
agency and claim fair use when rereporting it (Los Angeles News Service
v. KCAL-7’V Channel 9, 42 U.S.P.Q.2d
1080, 1997). For example, students in a
journalism class cannot simply copy
news from the New York Times Web site
and place it on their own school’s Web
site without giving credit to the New
York Times.
5 . Teaching. The use of copyrighted
works for teaching purposes is fair use,
but it does not include unlimited use.
The copying must be for instructional
purposes. For example, under the fair
use doctrine, a teacher may download
several Web sites and show them to students to illustrate principles of effective
Web design. However, the following
exceptions exist. It is not fair use when
(a) a teacher, without prior written permission, makes copies of another
teacher’s work for use in his or her own
article or book (Marcus v. Rowley, 695
F.2d 1171, 1983); (b) a teacher puts
together his or her own anthology of
works by others and has it copied for
distribution and use in his or her classes
(Basic Books, Inc. v. Kinko’s Graphics
Corp., 758 F. Supp. 1522, 1991); or (c)
a teacher videotapes educational programs or other broadcasts for later use
in the classroom, if specific permission
for such videotaping has not been given
(Encyclopedia Britunnica Educ. Corp.
v. Crooks, 558 F. Supp. 1247, 1983).
To assist in the teaching aspect of the
fair use exception to copyright law, an
“Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions” was reached by the
combined efforts of the Authors League
of America and the Association of
American Publishers. Though these
guidelines are not the law and do not
have the force and effect of law, they
have been recognized in the legislative
history of the Copyright Act as the
“minimum and not the maximum standards of educational fair use” (H. Rept.
94-1476, 72). The guidelines do not
mention the Internet, but they apply to
classroom use of information on the
Internet. They are intended to be copied
and distributed to educators as an aid in
complying with the teaching portion of
the fair use doctrine. The guidelines
describe the following as fair use of a
copyrighted work for teaching purposes, whether the work is on the Internet
or in a hard copy format: copying a single chapter from a book; an article from
a magazine or newspaper; a short story,
essay, or poem; and a chart, graph, diagram drawing, cartoon, or picture from
a book, magazine, or newspaper, if the
sole intent is to use the work in the
teacher’s own scholarly research or in
class preparation. This use does not
allow copying for distribution to students or to others.
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Copies of the works described above
can be made for distribution in the
classroom if the legitimate educational
need to make the copies is time sensitive
and there is not enough time to acquire
permission from the copyright owner; if
January/February 2003
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no part of the decision to make the
copies is motivated by a desire to avoid
purchasing the work from which the
copies are being made; if such copying
is not done more than nine times by a
teacher in the same academic year; and
if each copy contains the proper copyright notice showing the author’s name,
the title of the original work, and the
year of the copyright.
The decision to copy any work cannot come from an administrator or anyone other than the teacher who is making the copies. Students may not be
charged for being given copies of a
copyrighted work, except for the actual
copying cost, and the same work can
only be copied once by the teacher.
Public Domain
be used. These policies, which should
include uses of Web sites and searches
on the Internet as well as e-mail uses,
then must be enforced consistently.
These policies offer the single best
method for avoiding liability for
infringement of copyright, trademark,
or patent.
An educational entity will, generally,
have all the authority and discretion that
it needs to set and enforce these policies
because it will undoubtedly own or
lease the lines and equipment over
which the Internet is accessed by its personnel and students. As the owner or
leaser of this property, the school has
the legal right to set and enforce the
conditions of how its property is to be
used. If it is discovered that someone is
using the Internet improperly, that person can be disciplined or, if that person
is an employee, terminated from
employment. However, at many universities, administrators often balance their
legal right to control use of the Internet
by personnel and students with their
employees’ and students’ right to freedom of the press and freedom of speech.
School administrators often consider
both the legal implications and the political implications of setting Internet use
policies and enforcing those policies.
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Any piece of information that is in
the public domain is no longer protected and can be freely used by anyone.
The only caveat is making sure that the
work is actually in the public domain.
For copyrighted works created after
January 1, 1978, the term of copyright
protection is the life of the author plus 50
years (17 U.S.C. 302a). After 50 years,
the work is considered in the public
domain. For works created prior to January 1, 1978, the copyright term is 28
years from the date the work was created,
with one renewal term of 28 more years
possible (17 U.S.C. 302b). After the
author’s death, the copyright in the work
will continue to be owned by someone,
such as the author’s estate, the author’s
heirs, or a publisher or other entity that
152
had previously purchased the copyright,
until the copyright expires. When the
copyright term for any work expires, the
work is no longer protected by copyright
and is forever in the public domain.
A trademark will only go into the public domain, or become “generic,” if it has
been abandoned by the trademark owner.
Abandonment most often occurs when
the owner either goes out of business or
discontinues the product or service covered by the trademark (15 U. S. C.).
Various types of patents exist, each
with its own term, generally running for
17-20 years. Once a patent’s term
expires, the legal rights granted by the
patent expire and cannot be renewed. At
the end of the patent term, the invention
automatically falls into the public
domain and can be freely used and
exploited by anyone desiring to do so
(35 U.S.C. 154al).
Journal of Education for Business
Conclusions and
Recommendations
School administrators, faculty members, staff, and students must understand when and how they can use information legally that is obtained over the
Internet. Every communication, message, bit of information, image, sound,
or design that appears on the Internet is
owned by someone. Therefore, each
educational institution should establish
a policy for use of the Internet by its
employees, students, faculty members,
and administrators, as well as a specific
policy for how information owned by
another and taken from the Internet can
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REFERENCES
Delta, G., & Matsuura, J. (2000) Law of the Internet [Section 1.061. New York: Aspen Law &
Business.
Final Report of the National Commission on New
Technological Uses of Copyrighted Works (pp.
54-55). (1979). Washington, DC: Library of
Congress, 54-55.