COURSE MANAGEMENT SOFTWARE & COPYRIGHT
                                       January 2003
    Many colleges and universities have begun to use course management software (course manager) not only for online courses, but also as a supplement to face-to-face classes.Such software provides a basic structure or template for faculty members to place some portions of a course or even the entire course online.Examples of these products are Blackboard, WebCT and WebTycho. The software creates a website for a course that can be accessed by students; some restrict access to students enrolled in that particular course while others have features that permit the course pages to be open to everyone on campus.Most such software provides standardized templates for the course syllabus, the class roster, announcements, a threaded discussion list, and shared space for student projects, and the like.The instructor can also insert various materials such as lecture notes, outlines and online examinations and exercises. Because the course webpage is web-based, links to other materials on the web provide other resources for students.Additionally, reading material for the course can included on the webpage.It is this latter activity that creates the primary copyright concern.Many faculty members appear to be unaware that duplicating copyrighted materials and uploading them into the course management software raises all of the same concerns as multiple copying for the classroom or creating coursepacks for students.

 
    Incorporating copyrighted literary works into course management software can occur in three ways.(1) The most common way at present is that the faculty member scans a printed article or book chapter and creates it as an HTML file and then uploads it into the course manager.(2) The material may already exist in digital format which makes it even easier to upload into the course software package.(3) Most course managers also have the ability to incorporate links to digital content on the web, including licensed products.For the licensed titles, only authorized, authenticated users are eligible to access that content.In fact, when students click on the link, often they are required to input their student number or a password in order to gain access to the linked content.Each of the three types of incorporating copyrighted materials into the course manager raises copyright concerns.

 

    Many teachers seem to be unaware that digitizing articles, book chapters and other copyrighted work to place in the course management software in order to provide access for students may constitute copyright infringement.Because scanner technology differs from the photocopier, faculty members may not equate both activities as potential copyright infringement.Over the past few decades, most faculty members have come to understand that photocopying materials for students has limits such as those detailed in the Guidelines on Multiple Copying for Classroom Use[1] and the limitations on the reproduction of coursepacks the coursepack cases have imposed.[2]Reproducing materials, whether through photocopying or digitizing the work, is still a reproduction.If the activity exceeds fair use in either the analog or digital world, it is infringement.This is not to say that it is never fair use to digitize a work and put it on the course website for students to read.For example, the faculty member could seek and receive permission to digitize the work and put it in the course manager for the students.Or, the faculty member could follow the portion, time and other limitations contained in the Multiple Copying Guidelines but instead of photocopying the works and distributing copies to the students, might digitize the works and upload them onto the course webpage.One could argue that this is fair use as the equivalent of photocopying for students within Guidelines.


 

    For material that already exists in digital format, uploading them onto the course website is no different than digitizing analog content for the course manager.Unless the work is within the public domain, the faculty member should seek permission or follow the Classroom Guidelines.Some faculty members prefer to reproduce articles and other materials for which the institution has a license and to upload the full text onto the course website.This may be permissible under the institution’s license agreement, but not all licenses permit such uploading.


 

    Linking to web content causes the fewest copyright problems.For linking to works on the open web, there are no restrictions.For licensed content, however, there may be restrictions.Some license agreements for the online materials do not permit linking into the content from course webpages.The faculty member should consult the college or university librarian to ensure that the institution’s license permits this linking.Another linking concern with course management software is that the default setting seems to be for in-line links as opposed to out links.An in-line link brings another webpage into a frame or window created on the webpage as opposed to going out onto the web.Most experts opine that there is less difficulty with out links since there is no likelihood of confusion as to sponsorship as to which entity created the content.


 

    Of even greater concern is reproducing nontext works such as sound recordings, motion pictures or portions thereof.While digitizing small portions of such works is likely to be fair use, using entire works probably is not, nor is it permitted under the newly enacted TEACH Act[3] absent permission from the copyright holder.

 
Although course management software makes it very easy for faculty members to create online courses or portions of courses, that very ease could mislead teachers into believing that what is technological possible does not infringe copyright.Thus, colleges and universities that make course managersavailable to faculty may want to provide information about copyright law to assist faculty in making appropriate decisions about materials to include on course webpages.

[1]See http://www.utsystem.edu/ogc/intellectualproperty/clasguid.htm.
[2]SeeBasic Books v. Kinko’s, 758 F. Supp. 1522 (S.D.N.Y. 1991) and Princeton University Press v. Michigan Documents Service, 99 F.3d 1381 (6th Cir. 1996).
[3]See “Copyright Corner” in Information Outlook, April 2002.