Everyone who designs learning materials, either for classroom training or eLearning, has been tempted to use a random image or photo that came up on a Google search. Who wouldn’t? One, there are so many great quality images on the internet that can be downloaded in one click. Two, most of the materials will be used in an internal capacity only anyway, which means it’s close to impossible for the original author to know that their work is copied and pasted on an obscure PowerPoint slide somewhere in the planet. Three, why pay for a commissioned artwork or a royalty-free image if you can just sneakily use it for free? All of these reasons and more make more sense to some instructional designers than the word “copyright”. But what does copyright really mean and what happens if a designer breaks the law surrounding it?

Copyright in a Nutshell

Copyright is defined in the dictionary as “the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.” This means that without the original author or creator’s permission, using work that you did not create means infringing on the author’s exclusive right to the material. In the context of designing eLearning, the use of assets such as images, graphic art, photos, music, recorded audio, video ( whole videos or clips), as well as written content ( statements, quotation from books, content from another eLearning course, speeches) run the risk of infringing copyright. Let’s take a very common example of infringement in eLearning. Let’s say that an eLearning designer is creating an online course on cultural diversity and decides to embed a Youtube video about American culture on one of the PowerPoint slides that is part of the training package. Although Youtube videos can be downloaded using a third party application or an extension on a web browser, using the video on the training material is not free and should warrant a request for permission to use from the content creator. If the author is not notified or did not authorize the use of his video on the training material, it falls under infringement by digital reproduction or display.

Penalties for Infringing Copyright

US Copyright Penalties

Copyright infringement is considered a federal offense, and the laws covering copyright infringement, which include penalties, are housed in Title 17 of the United States Legal Code. As a civil penalty, if the owner of the copyright has registered her material with the United States Copyright Office (USCO), he or she can sue for damages and compensation in the common court. If the person or organization is found guilty of copyright infringement, they can be ordered by the court to pay damages. The monetary amount of damages will be based on the amount of lost revenue from the infringement and the number of occurrences of infringement on the copyright. The court may also ask the infringing party to pay legal fees. Historically, the court has imposed statutory damages of between $200 and $150,000. Penalties that amount from $30,000 and above are generally awarded only for “willful” infringement. An individual or group who infringe on a copyright can also be charged with criminal penalties. This happens when one infringes on a copyright with the intent to earn profit or financial gain. If the amount of the infringement goes beyond $1,000, or if the material has been distributed online that can be considered a form of commercial distribution ( for example, a movie or CD),it can be considered a criminal offense. In these cases, if the individual or group is found guilty they can be charged with penalties that include up to one year of jail time, paying financial damages and legal fees. When the infringement reaches the value of $2,500, the individual or group guilty of infringement may face five years in jail, financial damages, as well as legal costs.

UK Copyright Penalties

UK copyright rules are under s 107 of the Copyright, Designs and Patents Act 1988 (CDPA 1988). If the offense is committed by an organization, officers such as directors, secretaries and managers, as well as the individual who carried out the infringement commit a criminal offense. As search warrant may be served by the magistrates’ court if there is enough reasonable grounds to prove that an individual or a group has made a copyright offense and if there is reasonable grounds to prove that there is evidence pointing to the infringement at the office premises that is stated in the warrant. If an individual or group is found guilty of copyright infringement, they may receive a fine and/or face jail time for up to three months. On the contrary, the maximum sentence for infringing copyright in a work by broadcasting it to the public for financial gain or in a way that it jeopardizes the owner of the copyright, is two years. The criminal court may also summon the individual or group in question to deliver the work back to the original owner or creator. If the work has already been used, the criminal courts may also ask the infringing party to remove the work from their website/ eLearning course.

What About International Cases of Infringement?

Contrary to common belief, “international copyright” does not exist. There is not one law that will protect an author’s works in any part of the globe with a single registration. Copyright law is always based on territory and national in coverage. Regardless of the country the author lives or where the work was published originally, the copyright protection that is given to an original piece will always boil down to the national laws of the country where the creator seeks protection. This has a significant implication for authors and creators. Regardless if the author has filed registration for the work in his home country, acts of infringement that is made outside of the borders of that country cannot be addressed under the local copyright regulations because copyright laws cannot be applied extraterritorially. Wherever you are on the globe, it’s important to be conscious about the work that you are using in your eLearning courses. There are plenty of websites that offer good quality stock images, videos, and photos for a minimal fee. Some of these are even free with attribution. The point is, if you didn’t make it, or pay for it, you do not have the liberty to use a material as you like. With copyright law, it’s better to play it safe than pay hefty fines, go to jail or worse, lose your credibility as a learning and development professional.