GrayGray Matter: Matter: Copyright Law, Policy, Copyright Law, Policy,

Digital Works and Digital Works and Higher EducationHigher Education

GrayGray Matter: Matter: Copyright Law, Policy, Copyright Law, Policy,

Digital Works and Digital Works and Higher EducationHigher Education

Kimberly B. Kelley, Ph.D.Kimberly B. Kelley, Ph.D.Associate Provost and Executive DirectorAssociate Provost and Executive Director

Information and Library Services and Information and Library Services and Center for Intellectual Property, Center for Intellectual Property,

University of Maryland, University CollegeUniversity of Maryland, University College

Why Discuss Copyright?

• The copyright and educational landscape are changing rapidly

• We are educators• Liability• Information technology departments

and their staff are engaged in supporting and delivering these activities

Higher Education • Creates works• Uses third-party copyrighted works• Conducts research that involves digital

networks, computer programs, and de-encryption

• Has students who use copyrighted works• Delivers teaching materials through

digital networks in digital formats

Overview • A Few Copyright basics • The Technology, Education, and

Copyright Harmonization (TEACH) Act• The Digital Millennium Copyright Act

(DMCA) • Peer-to-Peer File Sharing • Resources to consult to learn more…

The Case of “Dr. No”The Case of “Dr. No”The Case of “Dr. No”The Case of “Dr. No”

What are the issues?

Issues to Consider:• Dr. No is making copies of copyrighted

materials for the CD-ROM.• Dr. No intends to use the materials for

several semesters.• Dr. No intends to distribute these

materials to his students.• Dr. No is taking materials from licensed

databases.

Issues To Consider (2):• Dr. No is using materials provided by his

colleagues.• Dr. No believes his use for educational

purposes affects whether his actions are permissible.

• Dr. No retrieved some materials from the Internet.

• Dr. No is using entire works.• Dr. No believes the IT professional has no

liability.

Is it lawful?Is it lawful?Is it lawful?Is it lawful?

Copyright Basics• Constitutional Basis• Copyright is automatic when an

original work is fixed in a “tangible medium” (e.g., print, film, software, video, DVD)

• Originality is loosely defined (e.g., white pages vs. yellow pages)

When Can You Use Materials Without

Permission?• The work is in the public domain• Your use of the work would likely be

considered a “fair use”• The use falls under the Congressional

Guidelines see:– http://www.musiclibraryassoc.org/

Copyright/guidebks.htm

• The use falls under one of the exemptions of the TEACH Act

Works in the Public Domain

• Works created after 1/1/78– Life plus 70 years– Joint works: from death of last surviving author

• Works created but not published or registered prior to 1/1/78– Life plus 70 years but no sooner than 12/31/2002

• Pre-1978 works still within original or renewal copyright term– 95 years from original date of copyright

• For further information see: When works pass into the public domain: http://www.unc.edu/~unclng/public-d.htm

Fair Use• Only limitation on the exclusive

rights of the copyright owner• A defense, not an exemption• Based on analysis of 4 factors

The Fair Use “Four Factors”:

• Purpose of the use– Educational? Non-commercial?

• Nature of the work– Creative? Factual?

• Amount and substantiality of portion used

• Economic impact on the market value of the copyrighted work

Fair Use ChecklistFair Use ChecklistFair Use ChecklistFair Use Checklist

TEACH Act • Allows performance, via digital

network transmissions of:• An entire non-dramatic literary or musical

work; and• Reasonable and limited portions of all

other works, including those incorporated in any type of audio-visual work such as:

• Videotapes• Films• Dramatic musical works

TEACH Act (2)• The display must:

– Be directly related and of material assistance to the teaching content

– Be made solely for, and to the extent technologically feasible, limited to the students officially enrolled

– Be part of systematic, mediated instruction– Employ technological measures preventing retention

of the work– Be compatible with any technological measures

used by the copyright owner to prevent retention and distribution

The Digital Millennium Copyright Act (DMCA)

• Signed into law in October, 1998• Designed to bring the U.S. into

compliance with several international treaties

• Attempted to update copyright law for the digital age

• Is section 1201 of the Copyright Act

DMCA (2) • Three areas of interest to higher

education technology professionals:– Anti-circumvention provisions– Limitation of liability for online service

providers (OSP) and within this,

• The “notice” and “take down” procedure

DMCA: Anti-circumvention

• Ban on any act of circumvention• Ban on distribution of tools and

technologies used for circumvention

DMCA: Anti-circumvention (2)

• Includes a clause allowing “non-profit libraries, archives, and educational institutions” to circumvent technological controls solely for making a good-faith determination as to whether they wish to obtain authorized access to the work

Can You??• Evaluate a copy-protected CD to see if

your copyrighted work is illegally included?

• Make a copy of a song from your copy-protected music CD?

• Watch your recently purchased DVD on a player other than the one approved by the film industry?

DMCA: Limitation of Liability

• Limits liability of an Online Service Provider (OSP)

• Bars monetary damages and restricts injunctive relief

• Creates a “safe harbor”• OSP defined as: “a provider of online

services or network access, or the operator of facilities therefor.”

DMCA Notice & Take Down

Procedures • To limit liability the following

procedures must be followed:– Designate an agent, file with the Copyright

Office of the U.S.– Copyright owner submits notification to the

agent, in writing including: name, address & electronic signature.

– OSP must remove or block access – OSP must notify the offending individual

DMCA Notice and Take Down (2)

• The alleged offender may file counter notification in which s/he:– Verifies materials taken down– Consents to the jurisdiction of the

applicable District Court• When counter-notification occurs, OSP

must restore the materials within 10-14 days (NOTE: only restore if the copyright owner has not filed a legal petition against the alleged offender)

What Do You Do?• The Church of Scientology informs

you that you have links to confidential documents, they assert it’s a violation of their copyright.

• The offender is a site, that you link to, it’s not on your campus network.

Peer-to-Peer Issues• The network technology is inextricably entwined with

copyright issues• Most files shared are copyrighted• Sharing music, movies, and other files results in heavy

bandwidth use• Peer-to-peer programs may set up the computer as a

server, allowing hackers easier access to campus machines

• Scans by copyright owners are random, therefore, depends on the vigilance of the copyright owner

• Already several cases of suits against students that have been successful

What Do You Do?• Sony Music notifies you of an

Internet address where their songs are being distributed via “aimster” on an Internet address within your domain.

• You determine it’s a student on your “ResNet” (i.e., residential network)

Peer-to-Peer: Some Suggestions

• Scrupulously uphold copyright• Separate piracy of copyrighted material

and the technology itself• Support alternative uses of this

technology that do not include misuse of copyrighted materials

• Educate students about copyright (including their own…)

Dr. No ReturnsDr. No ReturnsDr. No ReturnsDr. No Returns

Issues?

Issues for Dr. No• Loading entire songs to his website• Thinks he can load the songs to the

Website under TEACH• Considers this activity to also meet the

fair use requirements• Received some songs from a student

using a peer-to-peer network• Believes an opera qualifies for

distribution under TEACH

More Issues for Dr. No• Used de-encryption software to

obtain some of the songs• Is using a password-protected web

site• Intends to incorporate the site into

his teaching materials on a long-term basis

Is it lawful?Is it lawful?Is it lawful?Is it lawful?

Resources for Further Study: Fair Use

• The Center for Intellectual Property at UMUC• http://www.umuc.edu/distance/odell/cip/links_fairuse.html• Stanford University’s Copyright and Fair Use Overview• http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

• Univ of Texas System Fair Use document• http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm• The Copyright Management Center’s (CMC) Fair Use Checklist• http://www.copyright.iupui.edu/checklist.pdf• Fair Use Issues from the CMC• http://www.copyright.iupui.edu/fairuse.htm

Resources for Further Study: TEACH Act

• The TEACH Act and some Frequently Asked Questions http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2/Copyright1/Distance_Education_and_the_TEACH_Act/TEACHfaq.htm

• Distance Education and the TEACH Act• http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2

/Copyright1/Distance_Education_and_the_TEACH_Act/Default3685.htm

• TEACH Act Checklist from the University System of Texas:• http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm#checklist

• The Center for Intellectual Property at UMUC• http://www.umuc.edu/distance/odell/cip/links_teach.html• Janis Bruwelheide’s TEACH Act Highlights and Resources• http://www.nea.org/he/abouthe/teachact.html

• The TEACH Toolkit• http://www.lib.ncsu.edu/scc/legislative/teachkit/

Resources for Further Study: The DMCA

• The Digital Millennium Copyright Act• http://www.umuc.edu/distance/odell/cip/links_dmca.html

• The Electronic Frontier Foundations’ DMCA Archive• http://www.eff.org/IP/DMCA/

• Jonathan Band’s White Paper on the DMCA• http://www.arl.org/info/frn/copy/band.html

• Complying with the Digital Millennium Copyright Act• http://www.utsystem.edu/ogc/intellectualproperty/dmcaisp.htm• The text of the DMCA• http://www.copyright.gov/legislation/dmca.pdf• The Association of Research Libraries (ARL) analysis of DMCA:• http://www.arl.org/info/frn/copy/dmca.html• The DMCA by Stanford University:• http://fairuse.stanford.edu/primary_materials/legislation/dmca.html• FAQ about Anit-circumvention Provisions of the DMCA• http://www.chillingeffects.org/anticircumvention/faq.cgi

Questions?Questions?Questions?Questions?

Thank You!Thank You!