Copyright & Other Technology Issues Rodney J. Petersen Policy Analyst, EDUCAUSE Copyright Rodney J. Peterson, 2003. This work is the intellectual property of the author. Permission is granted for this material to be shared for non-commercial, educational purposes, provided that this copyright appears on the reproduced materials and notice is given that the copying is by permission of the author. To disseminate otherwise or to republish requires written permission from the author.
Transcript
Copyright & Other Technology Issues
Rodney J. PetersenPolicy Analyst, EDUCAUSE
Copyright Rodney J. Peterson, 2003. This work is the intellectual property of the author. Permission is granted for this material to be shared for non-commercial, educational purposes, provided that this copyright appears on the reproduced materials and notice is given that the
copying is by permission of the author. To disseminate otherwise or to republish requires written permission from the author.
Overview The State of the Law
Proposals to Strengthen Controls Proposals to Restore Balance
TEACH Act Use of 3rd Party Materials in Distance Ed
Licenses for Digital Content Fair Use and Anti-Circumvention ISP Limitations (and Liability)
Peer-to-Peer (P2P) File Sharing
Competing Interests & Themes
Content Community Protecting the IP rights of its
members (property right) Maintaining market share
and stopping piracy Seeking ways to control use
and dissemination of IP:1. Technological Measures
(copy protection and DRM)2. Legal and Policy Measures
(enforcement)3. New business models
(subscriptions & contracts)
Higher Ed/Library Community Optimizing open (not free) access
to information (public interest) Encouraging innovation and
new scholarship Preserving “fair use” and
rights under copyright law1. “First Sale” – similar treatment
of digital vs. analog works2. Preservation and Archiving
(including backups)3. Educational and Library Uses
(TEACH Act, Section 108, etc.)
The State of the Law U.S. Copyright Act of 1976 No Electronic Theft (NET) Act of 1997 Copyright Term Extension Act of 1998
Eldred vs. Ashcroft Digital Millennium Copyright Act of 1998
OSP Limitations on Liability (Section 512) Anti-Circumvention of Technological Protection
Measures (Section 1201) Distance Education Study ~ resulted in TEACH Act Section 104 Study ~ digital first sale & interlibrary loan
U.S. Copyright Office Rulemaking on Exemptions to Section 1201
Proposals to Strengthen Controls
Intellectual Property Protection Restoration Act of 2003 (Smith)
Piracy Deterrence and Education Act of 2003 (Smith)
Author, Consumer, and Computer Owner Protection and Security Act of 2003 (ACCOPS) (Berman)
Proposals to Restore “Balance” BALANCE Act of 2003 (Lofgren) Digital Media Consumer's Rights Act of
2003 (Boucher) Public Domain Enhancement Act (Lofgren) Public Access to Science Act (Sabo) Consumer, Schools, and Libraries Digital
Rights Management Awareness Act (Brownback)
Digital Consumer Right to Know Act (Wyden)
TEACH Act - History 1998 - Digital Millennium Copyright Act May 1999 - U.S. Copyright Office Report March 2001 - Introduction in Senate Spring 2001 - Negotiation over changes June 2001 - Passage in Senate and
Introduction in House October 2002 - Passed by House and
Senate November 2002 – Signed by President
Classroom Exemption
Notwithstanding the provisions of Section 106, the following are not infringements of copyright: 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, 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.
U.S. Copyright Act: Section 110(1), Title 17 U.S. Code
Distance Education Exemption
Notwithstanding the provisions of Section 106, the following are not infringements of copyright: performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if –a) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; andb) the performance or display is directly related and of material assistance to the teaching content of the transmission; andc) the transmission is made primarily for (i) reception in classrooms or similar places normally devoted to instruction . . .
U.S. Copyright Act: Section 110(2), Title 17 U.S. Code
Transmission Via Digital Networks Performance of an entire non-dramatic
literary or musical work; or Performance of reasonable or limited
portions of all other performances, including those incorporated in any type of audio-visual work, such as videotapes and films, and any dramatic musical work
Display of works, including still images, in amounts comparable to typical face-to-face displays in a live classroom session.
Mediated Instructional Activities
With respect to the performance or display of a work by digital transmission . . . refers to activities that use such work:
As an integral part of the class experience Controlled by or under the actual
supervision of the instructorand
Analogous to the type of performance or display that would take place in a live classroom setting.
Works Not Covered A work produced or marketed primarily for
performance or display as part of mediated instructional activities transmitted via digital networks
A performance or display given by means of a copy or phonorecord not lawfully made and acquired and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired
Policy & Educational ConditionsThe transmitting body or institution must . . . Be nonprofit and accredited, Institute policies regarding copyright,
provide informational materials to faculty, students and relevant staff members that accurately describe, and promote compliance with, the U.S. copyright laws, and
Provide notice to students that materials used in connection with the course may be subject to copyright protection.
Technological Conditions Must limit access to students officially
enrolled in the course or employees; will require passwords or other authentication measures
Must apply measures that reasonably prevent 1) retention of the work in accessible form by recipients of the transmission for longer than the class session, and 2) unauthorized further dissemination of the work in accessible form by such recipients to others.
Converting Analog to Digital
The institution may convert from analog to digital the portion or amount of that work authorized to be used under Section 110(2) if: No digital version of a work is available
to the institution, or The digital version that is available is
subject to technological measures that prevent its use for distance education
Use of Copyrighted Materialsin Distance Education “Fair Use” will still apply
purpose, nature, amount, effect on market TEACH Act only covers “mediated
instructional activities” “Distance” can include web-enhanced
courses Other exemptions or defenses will apply
Library uses, “first sale”, interlibrary loan, etc. Licensing Terms and Conditions
Licenses for Digital Content Electronic Resources (library materials and
software) & Negotiated License Agreements “Shrinkwrap” and “Clickthrough”
Agreements Death of Uniform Computer Information
Transactions Act (UCITA) or “in repose”? Importance of “Principles for Licensing
Problems with File SharingToday we examine the role government should play to assist the private sector in solving copyright protection problems that are stalling both broadband adoption and the digital television transition . . . When Congress sits idly by . . . we essentially sanction the Internet as a haven for thievery . . . Piracy is growing exponentially on college campuses and among tech savvy consumers. Over ten million people use file sharing sites on the Internet to download movies, songs, and TV shows, with no penalty. Such an atmosphere contributes to the studios and record labels’ reluctance to place their digital content on the Internet or over the airwaves.
Chairman Ernest F. Hollings (February 28, 2002)Senate Commerce Committee Hearing on Digital Content Protection
Challenge of P2P File SharingShutting down all P2P systems is not a viable or desirable option for dealing with the massive copyright infringement they facilitate. While the 9th Circuit could shut Napster down because it utilized a central directory and centralized servers, the new P2P networks have increasingly engineered around that decision by incorporating varying levels of decentralization. It may be that truly decentralized P2P systems cannot be shut down, either by a court or technologically, unless the client P2P software is removed from each and every file trader's computer.
Representative Howard L. Berman (July 25, 2002)In the United States House of Representatives
Introduction of the P2P Piracy Prevention Act
P2P Transforming Education???The rise of the internet and new digital media has changed the way the public enjoys entertainment products. One of the advantages of digital formats is that they offer extremely high quality reproduction of audio and video. A major disadvantage is that digital formats make the works very susceptible to piracy since every digital copy offers a perfect reproduction. The problem is only exacerbated by P2P file-sharing networks. While P2P technology has many benefits, it also permits the widespread and massive distribution of digital music, movies, and software files, which often results in copyright infringement . . . The ready access to file-sharing sites and the ease with which files can be downloaded by broadband connections has emboldened American university students to engage in piracy . . . It’s unlikely that this amount of file-sharing activity is in furtherance of class assignments.
Chairman Lamar Smith (February 26, 2003)Subcommittee on Courts, the Internet and Intellectual Property
Oversight Hearing on “Peer-to-Peer Piracy on University Campuses”
Joint Committee of Higher Education and Entertainment Industries
Purpose To examine ways to reduce the inappropriate use on
campuses of P2P file sharing technologies, To discuss their differences on federal intellectual property
legislative issues. Assumptions
Universities believe in and support copyright law. Universities share with the entertainment industry a
mutual concern about the use of P2P for unauthorized retrieval, use, and redistribution of copyrighted materials.
We will seek ways to reduce the inappropriate use of P2P technology without restricting free speech and expression, invading privacy, or limiting the legitimate uses of P2P.
Requests for Information First RFI (April 2003) – technologies
that may help reduce copyright infringement and bandwidth saturation that occur through widespread use of Peer-to-Peer file sharing
Second RFI (June 2003) – information on technology or services that can distribute licensed content, such as music and movies, to authorized users.
Content Community Challenges Enforcement Alternatives
Intermediaries – P2P Application Providers Direct Infringers – students and citizens Online Service Providers
New Business Models Subscription Services & New Intermediaries Lowering CD Prices
