Textbook Authorship

Permissioning Online Resources

Getting permission to use or link to online content is still a gray area in copyright law and application. The Digital Millennium Copyright Act of 1998 (www.copyright.gov/legislation/dmca.pdf) confirms that you must request permission to use anything you find online that is protected by copyright law, unless a grant of release appears with the material. In that case the author or copyright holder of the published material has authorized its use. A notice may appear such as, "Permission is granted for teachers and students to copy and use this content so long as no fee is charged and this web site is cited as the source". Not all material is protected, nevertheless, including facts, ideas, methods, works in the public domain, many government documents, and so on. Clear explanations of "public domain" may be found online.

The best explanation I have found for determining if you need permission is published by the University of Texas at www.utsystem.edu/ogc/Intellectualproperty/COPYPOL2.HTM. That site also has a clear explanation of the four tests for fair use. Basically, if you are using a lot of original material commercially (online or in print) in such a way that the value of the material to its owner or creator will potentially be diminished, then you must have written permission. Educational use is not fair use if money is involved. For example, if students have to pay for your coursepack or online course, then you must make sure that everything in it is permissioned or falls into the public domain or is defensible as fair use on other grounds.

It used to be that we were supposed to request permission to link to another site before doing so. That practice has been found to be largely unenforceable, however, and is contrary to basic web architecture, which distributes information via hyperlinks. Although link requests increasingly are viewed as a mere nicety, the nuances are still being tested (or threatened) in court cases on trademark infringement. In your online course, use hyperlinks to direct students to other sources of information or media assets, taking care to link to the home page rather than internal pages that may be viewed as more proprietary. Importing hyperlinked material into your web site is another matter, however, and in that case the rules for permissioning apply.

Another gray area is the use of social networking sites to gather information for publication. Private speech is protected, but defining privacy on social sites is troublesome. I recently advised an author to incorporate a waiver into his online questionnaire such that people understand that responding to the questionnaire automatically grants release for him to use it as he sees fit without further consideration to them. I also advised him that the speech of minors is extra-protected and he must have written permission from parents regardless. Also, email is protected speech, and making speech anonymous does not necessarily protect against privacy infringement.

I am not an attorney, though, and my advice cannot substitute for the real thing (which can be found at reasonable cost). My own policy (erring on the side of caution, perhaps) is always to cite sources, include credit lines, observe terms of use (and publish my own), and seek authorization or ask permission whenever I have any doubt.

Labels: copyright law, fair use, hyperlinks, online courses, online textbooks, permissions, public domain

posted by Mary Ellen Lepionka @ 10:48 AM