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Copyright: Infringement, Remedies, and Defenses in a Pandemic Environment

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2021 ASEE Virtual Annual Conference Content Access


Virtual Conference

Publication Date

July 26, 2021

Start Date

July 26, 2021

End Date

July 19, 2022

Conference Session

Engineering and Public Policy Division Technical Session 1

Tagged Division

Engineering and Public Policy

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Paper Authors


Salvatore Marsico Pennsylvania State University, Wilkes-Barre Campus

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Dr. Marsico is an Associate Professor of Engineering and Legal Issues in Engineering in the University College of Penn State University.

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Copyright: Infringement, Remedies, and Defenses in a Pandemic Environment The abrupt shift of universities to an online environment has heightened the awareness and impact of the copyright law. The issue universities is whether the virtual presentation(s) of material is in violation of the copyright laws and if a viable remedy or defense is available. Pre-Pandemic, educators teaching in the traditional in-class format used the Fair Use doctrine in deciding on the copyrighted work to be presented in class whereas those in the online paradigm faced a different set of barriers. To overcome online barriers to use copyrighted materials Congress enacted the Technology, Education, and Copyright Harmonization Act of 2002 (TEACH Act). This article discusses the premise and fundamentals of the Copyright Law, remedies, and defenses and whether they can be extended to the teaching environment created by the COVID-19 Pandemic: i.e., mixed mode or completely online. The TEACH Act is intended to strike a balance between the various modes of material presentations whether blended or live, the institution, and the copyright owner by providing a safe harbor provision for non-profit academic institutions, publishers, and libraries. In fact, enrolled students of an online course or program may be on campus or at a remote location. Additionally, central to the online delivery system are the course management systems utilized in managing content and delivery of the course material. Under the protection of TEACH, so long as the Act’s requirements are met, the storage, performance and display of copyrighted materials for distance education, and presumably while courses are offered digitally during the life of the pandemic, will not be in violation copyright law. However, the TEACH Act does not supersede Fair Use or existing digital license agreements. On the other hand, Fair Use is a more commonly known defense. The Fair Use defense to copyright violation recognizes that, at times, copyrighted material or works may provide a benefit to the party using the information or work without causing the copyright holder undue harm or hardship. The Copyright law, TEACH, and Fair Use are public policies in favor of society receiving a benefit at the expense of abridging the rights of the copyright holder. Accordingly, no permission from the copyright holder is required. Thus, the legal remedy of money damages and the equitable remedy of injunctive relief may not be available to the copyright holder.

Marsico, S. (2021, July), Copyright: Infringement, Remedies, and Defenses in a Pandemic Environment Paper presented at 2021 ASEE Virtual Annual Conference Content Access, Virtual Conference. 10.18260/1-2--36850

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