Part II: Podcasting the

Traditional Classroom

Elizabeth Townsend Gard

London School of Economics/
Stanford Law School Center for Internet and Society
www.academiccopyright.typepad.com
[email protected]
Review of Part I
 Basics of Podcasting
 Copyright and Podcasting
 How to determine whether a work is
under copyright
 Fair Use
 Licensing
 Right of Publicity
Part II Topics
I. Podcasting in Higher Education (news)
II. Examples of the podcasted classroom
III. Legal Issues
– Creating a Podcast and using copyrighted works in the
podcast
– Who owns the podcast of the classroom

Legal discussion will include

– Section 110(1) and 110(2) [TEACH Act]
– Students’ Works
– The “teacher exception” and work for hire in copyright
ownership
Podcasting in Higher Ed
 News stories: 1 • 2 • 3 • 4 • 5 • 6 • 7
 Duke University 1 • 2 • 3 • 4
 Syndication for Higher Ed Podcasts
Others (pre-cursors with less attention)
 Stanford and ITunes 1 • 2 • 3 • 4 • 5 • 6 • 7 • 8
 MIT Open CourseWare Project
 Princeton’s University Channel 1 • 2
 Key Individuals: Prof. J.C. Bradley
 Lesser known projects – they are all over the
country
Questions surrounding podcasting
lectures and coursework
 Attendance 1
 Blind Embracing 1 • 2
 Little mention of legal implications
Comment from tuaw.com, "Apple Introduces iTunes U., Posted Jan 24th 2006
8:15PM by Damien Barrett
Why Does it Legally Matter
 Traditional rules of copyright ownership in a
classroom
– How does this change when podcasted
• Does it change what we include as instructors? Do we
think of the classroom space differently?
• What can we do to preserve the classroom space?
• What are the options in using copyrighted works?
– Individual professors making choices
– Institutional support for making choices
 How this might impact that ownership balance
– Does the instructor or the university own the
podcast?
– Will the ability to podcast change the traditional
balance?
– Is this a threat to Academic Freedom?
How is Podcasting Being Used
in the Classroom
 Replaying of Lectures (or alternative to
lectures)
– Professor Bradley and his Chemistry Lectures
– UC Berkeley Webcasts
• Professor Samuelson’s IP course at Berkeley
• Jennifer Burns’ Basic History Course
– Courses at the University of Washington
 Supplemental Materials to the Lectures
– Mark Ott at Jackson Community College*
– Pre-Lectures at Claremont*
(*as noted by Bradley)
 Student presentations
– More projects than podcasts – see Duke U.
Scenarios
 Recording of live lectures
 Alternative to live lectures (Bradley’s
model; supplemental lectures; pre-
lectures)
 Student presentations
 “Field Trips” or mini-movies
 The potentials are endless – we are just
beginning
 Potential Uses and Users Chart

 From Peter Meng’s PODCASTING & VODCASTING: A WHITE PAPER

(University of Missouri, March 2005) [note – only the briefest mention of legal
issues in the form of questions of ownership and tracking copyrighted info]
 See also
Higher Ed Podcast Purposes & Examples
(5 categories)
 See also del.icio.us / wfryer /
higheredpodcasts
The Legal Side of the
Podcasted Classroom
Two Categories of Inquiry
 Creating
Podcasts
 Who Owns Podcasts

Other Areas:
 Students’ work
 Open Lectures
 Using Others’ Podcasts in your
classroom or as part of your course
material
Creating Podcasts: Copyright
Issues
Assuming we are talking about the
inclusion of others’ copyrighted works
– Because there is no problem using
• public domain works
• “podsafe” materials
• Government works
• your own creations
• Works you have gotten permission to use from
the copyright holder (See Part I)
Using Copyrighted Materials
 What materials can you use when
podcasting a live classroom?
 What materials can you use to
supplement outside of classroom
experience? (i.e. assigning podcasts for
homework)
 What materials can you use if students
are making the presentations?
The Traditional Classroom and
Copyright
 Section 110(1):
Notwithstanding the provisions of section 106, the
following are not infringements of copyright:
performance or display of by instructors or pupils
in the course of face-to-face teaching activities of a
nonprofit educational institution, in a classroom
or similar place devoted to instruction, unless, in
the case of a motion picture or other audiovisual
work, the performance, or the display of individual
images, is given by means of a copy that was not
lawfully made under this title, and that the person
responsible for the performance knew or had reason
to believe was not lawfully made;
Section 110(1)
 Performance or display of a work
 by instructors or pupils
 in the course of face-to-face teaching
activities
 of a nonprofit educational institution
 in a classroom or similar place
devoted to instruction
 Except if not lawfully made (re film
and audiovisual materials)
Some Thoughts on 110(1) and
Podcasting
 Willit change what materials I use in my
class?
 Ways around this
– Don’t record copyrighted materials
– Claim under fair use (see Part I)
 What if I password protect it only for my
students? See 110(2)
The TEACH Act

“The new law is, nevertheless, built around a

vision that distance education should occur
in discrete installments, each within a
confined span of time, and with all
elements integrated into a cohesive
lecture-like package. “
New Copyright Law for Distance Education:
The Meaning and Importance of the TEACH
Act, Prepared for ALA by: Kenneth D. Crews
Section 110(2) or the TEACH Act

 Much more complicated than 110(1) and

more restrictive
 History
– Broader than the old version of 110(2), which was
really meant for closed-circuit tv
– Previously limited to only nondramatic works
 What It Covers: Definition of Distance
Learning
 Requirements
 Requirements for 110(2)
Do you Make it through the Requirements?
 Are you willing to password protect your work?

No? Stop here. You cannot use 110(2)

 Do you want more than the enrolled students
in the course to have access to the copyrighted
materials?
Yes? Stop here. You cannot use 110(2)
 Are you an accredited nonprofit educational
institution?
No? Stop here. You cannot use 110(2)
 Do you want the podcast with the copyrighted
materials available beyond the term of the
course?
Yes? Stop here. You cannot use 110(2)
 Are the materials you want to use marketed
for an distance or online courses?
Yes? Stop here. You cannot use 110(2)
 Does your institution have a copyright policy
in place, and do they provide copyright
information materials to the students?
No? Stop here. You cannot use 110(2).
If you have made it this far..
Additional Requirements
 Your institution must
– Have a clear copyright policy for students,
and instructors.
– Have implemented digital rights
management to keep students from being
able to use the copyrighted materials
beyond the time of the course
If you are still wanting to use
110(2)
What you get…
 Performance of any nondramatic literary or
musical work
 Performances of any other work, including
dramatic works and audiovisual works, but
only in "reasonable and limited portions"; and
 Displays of any work "in an amount
comparable to that which is typically
displayed in the course of a live classroom
session."
 This can be transmitted to students
anywhere (no restrictions like in 110(1)
of face-to-face classroom or similar
setting)
 Allows for digitizing of limited amounts
of an anolog work if not in digital form
 Allows for limited storage
What it does not include
 Illegal copies
 Any materials designed and marketed
for distance learning courses
 Large scanning of materials, like a
textbook
Further Requirements for the
Instructor
 Oversight of use of copyrighted works
– Copyrighted works are integral to teaching
– The display or performance of the
copyrighted work "is made by, at the
direction of, or under the actual supervision
of an instructor";
A few more requirements
 You must give notice to the students
“that materials used in connection with
the course may be subject to copyright
protection."
 There must be technological controls in
place, besides password protection, to
keep students from further
disseminating the copyrighted works.
Helpful Resources for the TEACH
Act
 Laura Gasaway’s chart comparing 110(1) and
110(2)
 ALA | Distance Education and the TEACH Act
 TEACH Act Toolkit: NCSU Libraries 1
 The TEACH Act from UT Austin
 Checklist for Compliance with the TEACH Act
from the Copyright Management Center at
IUPUI.
 NEA Higher Education - Intellectual Property and
on the TEACH Act
Where does Podcasting Fit?
 Does 110(1) ever work?
 Under what situations would 110(2) work?
– Stanford and Duke at ITunes U
 Alternatives (esp to podcasts not password protection)
– Don’t record/include copyrighted materials – even though it is
shown in the classroom
MIT Lectures of Walter Lewin -- First lecture: “Powers of Ten”
movie – not included in the podcast [this is one way to strike a
balance]
-- Get permission to use/license from copyright holder (see Part I of
this podcast)
-- Don’t use others’ copyrighted materials; only use your own works,
public domain works, or “podsafe works.” (See Part I of this
podcast)
-- Rely on Fair Use (see Part I of this podcast)
Other Issues: Student Presentations
 Students own the copyright in their work
 To transfer copyright, assignment must be in
writing.
 How can you set up a non-exclusive license
to use students work?
 Podcasting K-12 students’ work: permission
required from parents?
 What about making derivative works from
students’ works? Again, how does one obtain
a non-exclusive license?
Other issues: Open Lectures
 Universityof Virginia – their suggested
release form
– What am I signing when I am giving a
lecture
– What can I do with my lecture materials
– What can the school do with the lecture
– What can others do with the lecture (is
there a Creative Commons license
attached to the lecture?)
Other Examples of Special Lectures
 UC Santa Cruz
Synergy Lecture Podcasts
at EPN
 Lots and lots of examples
 Center for Social Media – podcast
relating to fair use and “Untold Stories.”
 Princeton University’s
University Channel
Princeton University’s
University Channel
 How it Works
 Terms of Use – A
Creative Commons License
 Contributors
– Some examples (list)
• One specific example
Other Issues: Using Others’
Podcasts as Part of Your Course
Watching in class – no problems
Assigning for homework? Sending them
to a link? No problems
Including part of someone else’s podcast
in your podcast – Problems, maybe
(copyright issues)
Administrative problems? Can I assign
my students to listen to lectures at a
different university?
Fair Use and Podcasting the
Traditional Classroom
 See Part I for basics of Fair Use
 Password protected? 110(2) + fair use

Other Helpful Sources

Center for Social Media
Best Practices in Fair Use
Peter Jaszi’s
“Yes, you can!” –Where you don’t even ne
Thinking Thru Podcasting the
Traditional Classroom - Scenarios
 My Current Class
– Undergraduate copyright course
• As review?
• Post-Lecture Materials?
• Podcasts of the Lectures themselves?
– LLM Comparative and International Copyright
course
• News
• Student presentations
• Podcasts, music and short films from the Internet
 My spouse’s English Literature courses
– Course using contemporary films
– Course using advertisements, paintings, and
popular songs
One More Important Issue:
Who Owns the new Podcast
 The “teacher exception” before the
1976 Act
 Work for Hire and the teacher
 Today, “teacher exception” as judge-
made law has been replaced by
university-based policies
 Digital Divide: traditional works versus
distance learning
The “teacher exception”
 What is the “teacher exception”
– Judge-made long standing exception to employers owning
copyrighted works of employees in teaching environment
– 1976 Act: no mention of “teacher exception” - was it incorporated?
– 7th circuit: now university-policy based exception (more shaky
ground)
 The “teacher exception” today and university policies
Intellectual Property or Copyright Policies and
Distance Learning Policies;

For more about this, see Elizabeth Townsend, ““Legal and Policy
Responses to the Disappearing ‘Teacher Exception,’ or
Copyright Ownership in the 21st Century University,” 4 Minn.
Intell. Prop. Rev. 209 (2003) (available at
http://mipr.umn.edu/archive/v4n2/townsend.pdf
Some Questions: Podcasting,
Ownership and Teaching
 Who owns the podcasts?
 Who needs the lecturer now?
 Will it become a requirement in one’s
teaching contract? (the supervision part
of the “work for hire” Reid test
requirements)
 Is there anything wrong with assigning
another teacher’s podcasts?
Conclusion: The Bigger Picture –
What Does the Future Hold for
Podcasts in Higher Ed?

Exciting Possibilities of Access and Democracy of

Knowledge?
Creativity? Dynamic Classrooms? A Postmodern
Learning Environment?
MIT - Open CourseWare Project
 Watching the MIT Lectures of Walter Lewin
 1200 courses as of December 2005 (not all of these are
podcasts)
– Notice most podcasts are science courses
 “MIT OCW is not a distance-education or degree-granting
initiative. Distance education involves the active exchange of
information between faculty and students, with the goal of
obtaining some form of a credential. MIT OCW is not meant to
replace degree-granting higher education or for-credit courses.
Rather, the goal is to provide the content that supports an
education.” (FAQ)
 “How can I use MIT OCW?” (no. 10 FAQ)
 Goals reflected in Creative Commons license
 Legal Notice
Or Gloomy 1984-esque
Prediction?

– Academic Freedom?
– The disappearing “teacher exception”?
– Professors become obsolete?
– A new model of education?

Purdue U’s BoilerCast (course list)

Conclusion
 FOR MORE INFORMATION

ELIZABETH TOWNSEND GARD, Ph.D., J.D., LL.M.

([email protected])

COLETTE VOGELE, Esq.

([email protected])

All content in this presentation is licensed under the Creative Common’s

Attribution-NonCommercial-ShareAlike 2.5 License. Please attribute this
presentation as follows: “Podcasting in the Classroom”
© 2006 Elizabeth Townsend Gard, Colette Vogele.”