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Stephanie A. Barbee
DETT 611-9040
March 23, 2014
Assignment 3
Out-of-print Works and Copyright Law
Copyright laws protect the often-tumultuous balance between the rights of the creator and
overall public interest. In an online learning environment, copyright laws are often regarded as
unclear or downright confusing, but there are exceptions and exemptions that seem to favor
public interest, creativity, and knowledge acquisition. The Fair Use Doctrine and TEACH Act
are commonly utilized where online distance learning is concerned, and encompass a wide range
of scenarios involving copyrighted works. More specifically, the TEACH Act provides
instructors with some rights in an online distance learning environment corresponding to the
rights enjoyed in face-to-face classrooms, but the amount of material that can be used in an
online environment is much more restricted (UMUC, 2014). There are numerous scenarios
regarding the use of copyrighted works that must be addressed individually and in accordance
with copyright law. This paper utilizes the guidelines of the Fair Use Doctrine and TEACH Act
to address two different scenarios involving books that are no longer in print and how they apply
to copyright law.
The first scenario involves a staff member who scans photographs from a few out-of-
print books that the professor will use on his online course website. The second scenario
involves a professor who scans an out-of-print book using the librarys new book scanner, so that
a digital copy is available for his distance learning students on the universitys course
management system. Both of these scenarios involve books that are out-of-print, but out-of-
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print is not the same as out-of-copyright, and an out-of-print work is still protected by
copyright and should be approached as if the work was still in print (Hoon, 2007). In addition,
both of these scenarios involve using the scanned material in an online educational setting that
appears to only be accessible by students enrolled in the faculty members course. According to
Marybeth Peters testimonial on copyright and digital distance education (1999), there is a need
to provide technological security for copyrighted works, which typically includes limited access
to enrolled students in a particular class and password-protected access to the copyrighted
material.
There are, however, some distinct differences between the two scenarios and their
legitimacy within copyright law. The first scenario is considered fair use. However, this is only
considered fair use if the staff member refrains from using more than 10% or 15 images from a
single collection, whichever is less (Lehman, 1998). If the staff member were to use more than
the limited portions designated in the Fair Use Doctrine, then this would be a case of copyright
infringement. The second scenario, on the other hand, has multiple issues involving copyright
infringement. The only way that the faculty member would be allowed to copy the entire book is
if the library previously acquired a license for this book, which most often includes the right to
use them in e-reserve systems (American Library Association, 2014). In addition, the Fair Use
Doctrine provides general examples of limited portions of published materials, and claims that in
the case of books one can use or copy a chapter from a book, but should never use or copy the
entire book (UMUC, 2014). This scenario also represents copyright infringement in the sense
that the faculty member is attempting to distribute the entire book to students, which appropriates
the authors or copyright holders economic gain (Lehman, 1998).
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In order to balance the rights of those copyright owners with the public interest, there
must be guidelines in place so that information can be used and shared appropriately. As a result
of different implications stemming from online distance learning, the rights of public
performance or display are implicated, in addition to the rights of reproduction and distribution
(Peters, 1999). While there are not straightforward regulations on fair use, the decision about
using a copyrighted work rests solidly on good faith analysis of relevant circumstances (Hoon,
1997). If the number of images from each book is kept within the confines of the Fair Use
Doctrine, the first scenario serves as an excellent example of fair use. On the other hand,
scenario two appears to be a blatant form of copyright infringement. Ultimately, when a
publication or creative work is out-of-print, it must continue to be treated as if it were a
copyright-protected work.









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References
American Library Association (2014). Fair use and electronic reserve. Retrieved from
http://www.ala.org/advocacy/copyright/fairuse/fairuseandelectronicreserves
Copyright and digital distance education: Hearing before Subcommittee on Courts and
Intellectual Property Committee on the Judiciary. United States House of
Representatives. 106th Congress, 1st Session. (June 24, 1999). (testimony of Marybeth
Peters, Register of Copyright). Retrieved
from http://www.copyright.gov/docs/regstat62399.html
Hoon, P. (2007). Using copyrighted works in your teaching- FAQ: Questions faculty and
teaching assistants need to ask themselves frequently. Know Your Copyrights. Retrieved
from http://www.knowyourcopyrights.org/bm~doc/kycrfaq.pdf
Lehman, B. A. (1998). The conference on fair use: Final report to the commissioner on the
conclusion of the conference on fair use. Retrieved from
http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.pdf
University of Maryland University College (2014). Copyright and fair use in the UMUC online
or face-to-face classroom. Retrieved from
http://www.umuc.edu/library/libhow/copyright.cfm#teachact