There are a variety of legal issues that impact instructors in the classroom. The Internet and other digital technologies in education have impacted these same laws and our understanding of how they apply to teaching and learning. The following information is a guide to consider when distributing materials online.
This page discusses concerns instructors may have regarding the following legal Issues.
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. However, there is a difference between who holds the rights to contributions to a collective work versus 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:
Perform or display publicly
Distribute (sale, lease, rental, gift)
Prepare derivative works or adaptations
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 nonproﬁt education and library remission rule?
Who Owns Your myCourses/Blackboard Course Site and Related Materials?
In the absence of a written work-for-hire agreement that the you voluntarily sign, copyright ownership vests in the individual faculty member. Individual campuses and departments can establish work-for-hire arrangements as long as employees sign a written waiver surrendering ownership of their work. While faculty can waive their rights, campus administrations cannot obtain rights without an individual’s written consent.
What Should I Know About the TEACH Act?
Current copyright law gives educators the ability to use certain copyrighted works for educational purposes without securing permission or license. The Technology, Education & Copyright Harmonization Act (or simply TEACH Act) is intended to carry the spirit of these exemptions into the digital age, making it possible for an instructor to provide any content online that would otherwise be provided in a classroom.
Speciﬁcally main points of the act include:
Both digital and analog transmission of a work will be covered by the educational exemption from copyright law.
Current law requires transmission of a work to be sent to a classroom or other place normally used for instruction. The TEACH Act will simply require that the transmission be made by or at the direction of an instructor as part of a class.
To minimize the risk of copyright infringement through unauthorized distribution, digital works should be safeguarded. To the extent technologically feasible, transmissions of copyrighted works be limited to ofﬁcial course enrollees.
An educational institution must have nonproﬁt status in order to take advantage of the exemptions.
Tips and Good Practices
Having worked with instructors from across campus, we’ve assembled some tips and good practices to consider when using someone elses’ work. If you have questions or concerns, please contact the CLT, your resource librarian, or legal professional.
1) Secure Permission to Use Personal Contributions
When you seek permission to use personal contributions from other faculty, students, 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).
2) Be a Role Model for Your Students
In addition to following the legal guidelines yourself, teach your students how these issues also may apply to them. Demonstrate how to legally use others’ published and unpublished materials and student contributions. 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.
3) Take Advantage of Existing Options and Resources
Do the Libraries already own or license the material (e.g., full-text articles)?
Could this be handled through E-Reserves?
Is this a situation with which the Libraries’ Scholarly Communications 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 CLT may be able to provide 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?
4) Safeguard Materials for which you have permission, or for which you’re claiming fair use.
Is all the material on a password-protected site like myCourses/Blackboard?
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?
5) Post Copyright Protection Notice on Your Site
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 you place an appropriate disclaimer in your syllabus or in your myCourses/Blackboard course. Your statement could read like this: “Materials used in connection with the course may be subject to copyright protection.”
6) Practice Common Courtesy
When using colleagues’ work, reinforce good working relationships by communicating clearly. When considering intellectual property issues that are more related to professional ethics rather than law, try reversing positions and see how you would feel if you were in the shoes of the other party.
Speciﬁc details to facilitate your copyright request:
When asking others for use of their intellectual property in myCourses/Blackboard or other systems such as Course Reserves, 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.
Campus Copyright Resources
The University's Scholarly Communications Program provides information regarding copyright in addition to a service for faculty needing permission to display copyrighted materials on their Web sites or courses.
Course Reserves allows individual documents to be password protected. Electronic reserves are uploaded to myCourses by Reserves staff.
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 You Should Know about the ADA and the Internet
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. Educators who utilize the Internet should be aware of Section 508 of the Rehabilitation Act, which involves agencies that receive federal funding, like Binghamton University.
When a request is made by a student, 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 course sites are developed and existing ones revised.
According to Binghamton’s Web and Media Accessibility Policy:
Websites that contain information used in instruction must be accessible to all students in the class. This includes information posted on Blackboard and internet/intranet web pages. All students should have the opportunity to join class related experiences including interactive electronic experiences such as chat rooms. Accessibility must be considered when purchasing and licensing software, videos and related media.
Each person posting a university or instructional website, as well as information on Blackboard, is responsible for ensuring that it is designed to be accessible. Departments within divisions have responsibility to monitor continued accessibility compliance of its web pages.
Student Rights and Responsibilities
Include information about students’ rights and responsibilities in your syllabus. Services for Students with Disabilities provides a syllabus statement that you are free to use. You should 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 your responsibilities ensuring equitable access.
Tips and Suggestions for ADA-Compliant Page Layout
The CLT maintains a page of suggestions (link) for ensuring your myCourses/Blackboard course and course content is compliant with the ADA. In addition, Services for Students with Disabilities provides several guides on how to create accessible course materials.
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.
What Educators Should Know About FERPA
Due to the wording of this act (which originated in 1974, prior to the Internet) all computer ﬁles and records in courses using myCourses/Blackboard or other online components are considered educational records protected by the act. Simply disclosing the fact that a particular student is enrolled in a course could violate students’ legal rights and put the faculty member – and the university – at risk of legal action. What this means in practice is that students have the right to expect that 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 e-mail is insufﬁcient.
Additionally, students who have elected to have their directory information restricted may ask to have their name withheld from other members of the course. Legally and ethically, such requests must be taken seriously. This information could compromise the safety of the student; there are cases where stalkers have creatively used enrollment information to terrorize their victims. Discuss concerns with students. 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.
How does it apply to myCourses/Blackboard?
Under FERPA, it is not permissible to reveal the course or courses in which a student is enrolled (without prior written consent) to anyone except as permitted by the Student Records office.
Only “Directory Information” as deﬁned by the University may be released regarding a student. Students may elect to have their directory information withheld.
Since all computer ﬁles and computer generated information on a student maintained by the institution are considered educational records under the law, all data posted by or about a student in myCourses/ Blackboard is, at this time, considered an educational record covered by the act. (Also note that students retain copyright over materials that they post.)
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 myCourses/Blackboard requires users to authenticate to the system using Binghamton’s single sing-on, some instructors allow some form of guest access to their courses (e.g., guest lecturers, observers). However, these 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.
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 E-mail tools, Grade Center, and Groups all should be restricted.
If you have questions about how to provide guest access to your course or what features in myCourses/Blackboard can enable FERPA compliance, please visit with our staff.
Considerations When Using Publisher or Third Party Resources
It has become quite common to hear news stories about security breaches at colleges and universities around the country. While Binghamton has been fortunate thus far, this is an issue the campus takes very seriously.
One way in which problems of this nature may occur is in the use of third parties to provide services. Examples include book publishers who offer online activities for students, course management software companies, popular blogging or discussion board sites, etc. To guard against illegal activity and to protect privacy, it is important that instructors use systems and services already approved and available from ITS, or that we develop contracts that ensure vendors are aware of and responsible for meeting our data privacy requirements.
All applications and services that utilize student records need extra attention to comply with federal law and to protect sensitive information. Please utilize the resources available through ITS or the CLT before engaging in such activities (contractual or informal) with a third party for any student related service.
Tips to Remain Compliant with FERPA Regulations
Use existing services and infrastructure; don’t agree to have your student data (names, grades, discussion boards, student projects, etc.) stored outside of Binghamton’s control
Talk with ITS and CLT about speciﬁc needs you have which are not currently available and/or supported by the university
Protect your students’ privacy; don’t share information about students with a third party
Keep your electronic devices (laptops, desktops, servers, tablets, etc.) secure, don’t leave devices where they could be stolen and hacked off site.
Keep your own portal password safe; don’t share it with peers or TA’s
CLT Event Presentation - The Legalese of Higher Education, November 21 2014
Frequently Asked Questions - The Legalese of Higher Education, November 21, 2014
This material is based on Legal Issues: Copyright, Accessibility, and FERPA by Educational Technologies (ET@MO), University of Missouri, Special thanks to Charles Rigdon, Educational Technology Specialist, for allowing us to modify and redistribute this work.