EDUCATIONAL COPYRIGHT CONSIDERATIONS IN THE DIGITAL MILLENNIUM Metro Community College March 8, 2004 Turan P. Odabasi Special Associate General Counsel,

EDUCATIONAL EDUCATIONAL COPYRIGHT COPYRIGHT

CONSIDERATIONS IN CONSIDERATIONS IN THE DIGITAL THE DIGITAL MILLENNIUMMILLENNIUMMetro Community CollegeMetro Community College

March 8, 2004March 8, 2004

Turan P. OdabasiTuran P. OdabasiSpecial Associate General Counsel, Patent Special Associate General Counsel, Patent

AttorneyAttorneyUniversity of Nebraska-LincolnUniversity of Nebraska-Lincoln

Peter T. ThewPeter T. ThewContracts CoordinatorContracts Coordinator

University of Nebraska-LincolnUniversity of Nebraska-Lincoln

INTRODUCTIONINTRODUCTION

Providing quality educational material to Providing quality educational material to students is essential. students is essential.

It is easy to place copyright It is easy to place copyright considerations behind other concerns.considerations behind other concerns.

Failure to address copyright issues can Failure to address copyright issues can create tremendous liability for the create tremendous liability for the institution and can render a project institution and can render a project useless.useless.

Knowing the rules can make all the Knowing the rules can make all the difference.difference.

INTRODUCTION (Cont’d)INTRODUCTION (Cont’d)

Public DomainPublic Domain Fair Use & educational guidelinesFair Use & educational guidelines Digital Millennium Copyright Act Digital Millennium Copyright Act

(DMCA)(DMCA) Classroom usesClassroom uses TEACH Act of 2002TEACH Act of 2002

PUBLIC DOMAINPUBLIC DOMAIN

Works no longer protected by copyright are Works no longer protected by copyright are in the public domain and are free for in the public domain and are free for anyone to use without consent of anyone to use without consent of author/owner.author/owner.

Determining what works are in the public Determining what works are in the public domain is not as easy as it sounds.domain is not as easy as it sounds.

In 1989, Congress did away with the notice In 1989, Congress did away with the notice requirement, which was also made requirement, which was also made retroactive for certain works created after retroactive for certain works created after 1978. 1978.

PUBLIC DOMAINPUBLIC DOMAINRights of Copyright OwnersRights of Copyright Owners

The owner of a copyright has the The owner of a copyright has the exclusiveexclusive right to:right to:

Reproduce the copyrighted work.Reproduce the copyrighted work. Prepare derivative works based on the Prepare derivative works based on the

copyrighted work.copyrighted work. Distribute copies of the copyrighted work Distribute copies of the copyrighted work

by sale, license, lending, etc...by sale, license, lending, etc... Publicly perform the copyrighted work.Publicly perform the copyrighted work. Display the copyrighted work.Display the copyrighted work.

TERM OF COPYRIGHT TERM OF COPYRIGHT PROTECTIONPROTECTION

DateDate StatusStatusPublished before Published before 19231923

In public domainIn public domain

Published from 1924-Published from 1924-19631963

If published without If published without notice or not notice or not renewed, work is in renewed, work is in the public domainthe public domain

Published from 1964-Published from 1964-19771977

If published without If published without notice, work is in the notice, work is in the public domainpublic domain

Published 1978 or Published 1978 or afterafter

No notice requiredNo notice required

SONNY BONO COPYRIGHT SONNY BONO COPYRIGHT TERM EXTENSION ACT OF TERM EXTENSION ACT OF

19981998 Extended term of Copyright protection by 20 Extended term of Copyright protection by 20

years.years. Term of copyright protection for works Term of copyright protection for works

published after 1923 is now life of author plus published after 1923 is now life of author plus 70 years.70 years.

The term of protection for works-made-for-hire The term of protection for works-made-for-hire is 95 years from date of publication or 120 is 95 years from date of publication or 120 years from date of creation, whichever expires years from date of creation, whichever expires first.first.

Eldred v. AshcroftEldred v. Ashcroft – Act ruled constitutional by – Act ruled constitutional by Supreme Court.Supreme Court.

PUBLIC DOMAINPUBLIC DOMAINThe InternetThe Internet

Most (all?) websites were developed after Most (all?) websites were developed after 1989, and may be protected without 1989, and may be protected without copyright notice.copyright notice.

Many web sites contain pirated works. Do Many web sites contain pirated works. Do not assume that the author of the website is not assume that the author of the website is the author or has the right to use or license the author or has the right to use or license each work displayed on the web site.each work displayed on the web site.

Derivative works based on works in the Derivative works based on works in the public domain are capable of copyright public domain are capable of copyright protection.protection.

PUBLIC DOMAIN PUBLIC DOMAIN (cont’d)(cont’d)

©1506, Leonardo Da Vinci©1506, Leonardo Da Vinci

PUBLIC DOMAIN PUBLIC DOMAIN (cont’d)(cont’d)

©2003, GyP, Inc.©2003, GyP, Inc.

PUBLIC DOMAINPUBLIC DOMAINGovernmental WorksGovernmental Works

Works Works createdcreated by the federal government by the federal government are in the public domain.are in the public domain.

Many works/collections are bequests from Many works/collections are bequests from private donors and carry certain use private donors and carry certain use restrictions.restrictions.

Restrictions on use are usually noted, but Restrictions on use are usually noted, but you may have to look closely to find them.you may have to look closely to find them.

FAIR USEFAIR USE The fair use doctrine helps copyright law The fair use doctrine helps copyright law

achieve its constitutional purpose by achieve its constitutional purpose by balancing the interests of copyright balancing the interests of copyright owners against the interests of society in owners against the interests of society in using their work.using their work.

Fair use embodies a balance of interests:Fair use embodies a balance of interests: Between owner control and public access;Between owner control and public access; Between owner control and the public’s Between owner control and the public’s

First Amendment rightsFirst Amendment rights..

FAIR USE (Cont’d)FAIR USE (Cont’d) DefenseDefense to copyright infringement claim. to copyright infringement claim. Fair use helps protect public uses such as Fair use helps protect public uses such as

criticism, commentary, news reporting, criticism, commentary, news reporting, teaching, scholarship & research (see 17 teaching, scholarship & research (see 17 U.S.C. U.S.C. §§ 107). 107).

Fair use is one of the most contentious Fair use is one of the most contentious issues in copyright law today (internet file issues in copyright law today (internet file sharing, etc…).sharing, etc…).

Digital Millennium Copyright Act (DMCA):Digital Millennium Copyright Act (DMCA): Did away with defense of fair use for use of Did away with defense of fair use for use of

any encrypted or copy-protected work.any encrypted or copy-protected work.

FAIR USE STATUTEFAIR USE STATUTE Fair Use Statute – 17 U.S.C. §107:Fair Use Statute – 17 U.S.C. §107:

Purpose and character of the use:Purpose and character of the use:- Non-profit/educational vs. Commercial.- Non-profit/educational vs. Commercial.

Nature of the copyrighted work:Nature of the copyrighted work:- Factual, little imagination vs. Imaginative/fanciful.- Factual, little imagination vs. Imaginative/fanciful.

Amount and substantiality of the portion Amount and substantiality of the portion used in relation to the copyrighted work as a used in relation to the copyrighted work as a whole:whole:- Small portion vs. Entire work.- Small portion vs. Entire work.

Effect of use on potential market for Effect of use on potential market for copyrighted work.copyrighted work.

FAIR USEFAIR USEEducational GuidelinesEducational Guidelines

Fair use is more likely to exist Fair use is more likely to exist where:where: A modest portion of the work is used;A modest portion of the work is used; The work is distributed only to students The work is distributed only to students

in one class;in one class; The work is not used more than once;The work is not used more than once; The purpose of the use is solely The purpose of the use is solely

educational instruction or research; andeducational instruction or research; and There is not an efficient or affordable There is not an efficient or affordable

permissions option available.permissions option available.

LINKING TO WEBSITESLINKING TO WEBSITES It is generally permissible to link to third It is generally permissible to link to third

party websites, BUT you do need to be party websites, BUT you do need to be mindful of how you intend to link to the mindful of how you intend to link to the web site.web site. Direct link (or providing a URL) is generally Direct link (or providing a URL) is generally

OK;OK; Need to get permission if you want to:Need to get permission if you want to:

- Cache all or part of the web site;Cache all or part of the web site;- Deep-link to a page other than the home Deep-link to a page other than the home

page;page;- In-line link to a page, or frame a page within In-line link to a page, or frame a page within

your web site.your web site.

DIGITAL MILLENNIUM DIGITAL MILLENNIUM COPYRIGHT ACT COPYRIGHT ACT

(DMCA)(DMCA) Passed by Congress in 1998Passed by Congress in 1998 Codified at 17 U.S.C. Codified at 17 U.S.C. §§1201-1205§§1201-1205 Relates to the “Circumvention of Relates to the “Circumvention of

Copyright Protection Systems”Copyright Protection Systems”

DMCA (cont’d)DMCA (cont’d)

Prohibits circumvention of technological Prohibits circumvention of technological measures that effectively control access to measures that effectively control access to a copyrighted worka copyrighted work

““Circumventing a Technological Measure”Circumventing a Technological Measure” Defined as descrambling a scrambled Defined as descrambling a scrambled

work, decrypting an encrypted work, or work, decrypting an encrypted work, or otherwise avoiding, bypassing, removing, otherwise avoiding, bypassing, removing, deactivating, or impairing a technological deactivating, or impairing a technological measure without the authority of the measure without the authority of the copyright owner.copyright owner.


A technological measure “effectively A technological measure “effectively controls access to a work” if the controls access to a work” if the measure requires the application of measure requires the application of information, or a process or a information, or a process or a treatment, with the authority of the treatment, with the authority of the copyright owner, to gain access to copyright owner, to gain access to the work.the work.

Ex. Embedded microchips, computer Ex. Embedded microchips, computer programs, passwords, etc.programs, passwords, etc.


The Good NewsThe Good News DMCA provides a conditional DMCA provides a conditional

exemptionexemption for nonprofit libraries, for nonprofit libraries, archives, and educational archives, and educational institutionsinstitutions

Permits circumvention of Permits circumvention of technological measures by nonprofit technological measures by nonprofit library, archives, or educational library, archives, or educational institution without liability under institution without liability under DMCADMCA


The Exemption:The Exemption: A nonprofit library, archives, or A nonprofit library, archives, or

educational institution which gains educational institution which gains access to a copyrighted work for the access to a copyrighted work for the sole purposesole purpose of making a good faith of making a good faith determination of whether to acquire determination of whether to acquire a copy of that work does not violate a copy of that work does not violate the DMCA.the DMCA.

There are, however, several There are, however, several conditions…conditions…


The copy of the work may not be The copy of the work may not be retained longer than necessary to retained longer than necessary to make a good faith determination of make a good faith determination of whether to acquire a copy of the whether to acquire a copy of the work.work.

The copy may not be used for any The copy may not be used for any other purpose, other purpose, even otherwise fair even otherwise fair uses/purposesuses/purposes..

A copy cannot reasonably be A copy cannot reasonably be obtained in another form.obtained in another form.

The copy of the work may not be The copy of the work may not be retained longer than necessary to retained longer than necessary to make a good faith determination of make a good faith determination of whether to acquire a copy of the whether to acquire a copy of the work.work.

The copy may not be used for any The copy may not be used for any other purpose, other purpose, even otherwise fair even otherwise fair uses/purposesuses/purposes..

A copy cannot reasonably be A copy cannot reasonably be obtained in another form.obtained in another form.


In addition, to qualify for the In addition, to qualify for the exemption, the collections of the exemption, the collections of the library or archives must be:library or archives must be:

Open to the public, orOpen to the public, or Available not only to researchers Available not only to researchers

affiliated with the library or archives affiliated with the library or archives or with the institution of which it is a or with the institution of which it is a part, but also to other persons doing part, but also to other persons doing research in the field.research in the field.


The Bad NewsThe Bad News A nonprofit library, archives, or A nonprofit library, archives, or

educational institution that willfully educational institution that willfully and for the purpose of commercial and for the purpose of commercial advantage or financial gain violates advantage or financial gain violates the DMCA is subject to:the DMCA is subject to:

Monetary damages for the first Monetary damages for the first offense, andoffense, and

Monetary damages and Monetary damages and loss of the loss of the exemptionexemption for subsequent offenses. for subsequent offenses.


What does all of this mean for me?What does all of this mean for me? Fair Use cannot be claimed for DMCA Fair Use cannot be claimed for DMCA

violations.violations. Educational/Classroom Use cannot be Educational/Classroom Use cannot be

claimed for DMCA violations.claimed for DMCA violations. ““Ripping” clips and songs for Ripping” clips and songs for

educational use is not permitted under educational use is not permitted under the DMCAthe DMCA


How can I use protected material in How can I use protected material in a class?a class?

Courts have held the following are Courts have held the following are allowed:allowed:

Analog filming of digital moviesAnalog filming of digital movies Writing quotes by handWriting quotes by hand


When in doubt,When in doubt, Contact the owner of the work, Contact the owner of the work,

and/orand/or Contact counselContact counsel

CLASSROOM USECLASSROOM USE

ClassroomClassroom uses are provided for under uses are provided for under the following conditions (see 17 the following conditions (see 17

U.S.C. §110(1)):U.S.C. §110(1)): The use occurs at a non-profit educational The use occurs at a non-profit educational

institution;institution; Teachers and students are present in the same Teachers and students are present in the same

place at the same time;place at the same time; The use occurs in a classroom or area devoted The use occurs in a classroom or area devoted

to instruction; and to instruction; and If the work is an audiovisual work, the copy If the work is an audiovisual work, the copy

used must be lawfully obtained or made.used must be lawfully obtained or made.

CLASSROOM USE CLASSROOM USE (Cont’d)(Cont’d)

LIMITED – applies LIMITED – applies onlyonly to in-class, to in-class, face-to-face use of works.face-to-face use of works.

““Virtual Classroom” does Virtual Classroom” does notnot satisfy satisfy requirement that teachers and requirement that teachers and students be “present in the same students be “present in the same place at the same time.”place at the same time.”

Does not apply to distance education Does not apply to distance education or internet-based courses.or internet-based courses.

Old Section 110(2) – amended and Old Section 110(2) – amended and replaced by TEACH Act.replaced by TEACH Act.

TEACH ACT OF 2002TEACH ACT OF 2002 Technology, Education and Copyright Technology, Education and Copyright

Harmonization Act of 2002.Harmonization Act of 2002. Addresses use of educational materials Addresses use of educational materials

in distance education via the internet.in distance education via the internet. Allows educators at non-profit Allows educators at non-profit

educational institutions to copy and educational institutions to copy and transmit portions of copyrighted works transmit portions of copyrighted works over distance learning networks over distance learning networks without the permission of the copyright without the permission of the copyright owner provided certain conditions are owner provided certain conditions are met.met.

TEACH ACTTEACH ACTRequirementsRequirements

1)1) The work must be “legally acquired;”The work must be “legally acquired;”

2)2) The use of the work must be under the The use of the work must be under the supervision or direction of an instructor “as supervision or direction of an instructor “as an integral part of a class session;”an integral part of a class session;”

3)3) The work can only be transmitted to The work can only be transmitted to students “officially enrolled in the course;”students “officially enrolled in the course;”

4)4) The institution may retain copies of the The institution may retain copies of the work only for the amount of time “reasonably work only for the amount of time “reasonably necessary to complete the transmission;”necessary to complete the transmission;”

TEACH ACTTEACH ACTRequirements (Cont’d)Requirements (Cont’d)

5)5) To the extent technologically feasible, To the extent technologically feasible, the institution must implement measures to the institution must implement measures to “reasonably prevent unauthorized access to “reasonably prevent unauthorized access to andand dissemination of the work;” and dissemination of the work;” and

6)6) The institution must “institute policies The institution must “institute policies regarding copyright” regarding copyright” andand must educate its must educate its faculty and staff members about copyright faculty and staff members about copyright law.law.

7) Calls for the creation of fair use guidelines 7) Calls for the creation of fair use guidelines (likely starting in the fall of 2004). (likely starting in the fall of 2004).

TEACH ACTTEACH ACTDutiesDuties

AdministrationAdministration Promulgate appropriate policies;Promulgate appropriate policies; Provide education and promote compliance Provide education and promote compliance

with copyright regulations; and with copyright regulations; and Provide notice to students that course Provide notice to students that course

materials may be copyrighted.materials may be copyrighted. FacultyFaculty

““Supervise” uses of the works;Supervise” uses of the works; Avoid use of unauthorized copies of works;Avoid use of unauthorized copies of works; Avoid use of educational works;Avoid use of educational works; Limit use of works to the amount and Limit use of works to the amount and

duration of that which you would use in a live duration of that which you would use in a live classroom setting;classroom setting;

TEACH ACTTEACH ACTDuties (cont’d)Duties (cont’d)

Faculty (cont’d)Faculty (cont’d) Use works only for educational purposes;Use works only for educational purposes; Retain copies of the work only so long as Retain copies of the work only so long as

needed.needed. Information Technology StaffInformation Technology Staff

Implement procedures/software to limit Implement procedures/software to limit access to works and to “reasonably” prevent access to works and to “reasonably” prevent students from retaining copies of the works students from retaining copies of the works for longer than the “class session;”for longer than the “class session;”

Implement technology to “reasonably” Implement technology to “reasonably” prevent unauthorized further dissemination.prevent unauthorized further dissemination.

Do not interfere with owner’s technological Do not interfere with owner’s technological measures to block copying of digital works.measures to block copying of digital works.

TEACH ACTTEACH ACTComplianceCompliance

University of North Carolina University of North Carolina Copyright Use and Ownership Policy Copyright Use and Ownership Policy (on next slide).(on next slide).

Brief, to the point, basic elements Brief, to the point, basic elements contained.contained.

More detailed UNC implementation More detailed UNC implementation policies and guidelines found at:policies and guidelines found at:http://www.unc.edu/campus/policies/http://www.unc.edu/campus/policies/copyright.htmlcopyright.html

TEACH ACT – Policy TEACH ACT – Policy ExampleExample

……The University Shall:The University Shall:1.1. Inform and educate the University community about Inform and educate the University community about

fair use and the application of the four fair use fair use and the application of the four fair use factors as set forth in 17 USC 107 and as factors as set forth in 17 USC 107 and as interpreted in applicable case law. The four fair use interpreted in applicable case law. The four fair use factors are:factors are:

a.a. The character and purpose of the proposed use.The character and purpose of the proposed use.b.b. The nature of the work to be used.The nature of the work to be used.c.c. The amount and substantiality of the portion to be used.The amount and substantiality of the portion to be used.d.d. The effect on the market or potential market for the work.The effect on the market or potential market for the work.

2.2. Develop and make available resources concerning Develop and make available resources concerning copyright laws in general and the application of fair copyright laws in general and the application of fair use in specific situations.use in specific situations.

3.3. Ensure that faculty, … staff, and students have Ensure that faculty, … staff, and students have access to assistance in making fair use access to assistance in making fair use determinationsdeterminations

TEACH ACTTEACH ACTReaction Among Reaction Among

UniversitiesUniversities Skepticism.Skepticism. TEACH Act does not define what is meant by TEACH Act does not define what is meant by

“reasonable” efforts.“reasonable” efforts. Is mere password protection sufficient?Is mere password protection sufficient? Are more sophisticated means (e.g. tracking) Are more sophisticated means (e.g. tracking)

required?required? What is needed to “educate” the various What is needed to “educate” the various

parties?parties? Some see a “Catch-22” – Colleges may wait Some see a “Catch-22” – Colleges may wait

years for appropriate technology to be years for appropriate technology to be developed, but could face liability if current developed, but could face liability if current technology is found to be insufficient to stop technology is found to be insufficient to stop unauthorized dissemination.unauthorized dissemination.

TEACH ACTTEACH ACTReaction (cont’d)Reaction (cont’d)

EXCITEMENT!EXCITEMENT! Others feel that good faith efforts to Others feel that good faith efforts to

comply with TEACH will shield comply with TEACH will shield Universities from liability - Universities Universities from liability - Universities don’t have to guarantee success.don’t have to guarantee success.

Publishers and content owners are Publishers and content owners are unlikely to sue unless violations are unlikely to sue unless violations are flagrant.flagrant.

The boldest Universities are setting The boldest Universities are setting policies that will eventually become de policies that will eventually become de facto standards, and the rest will follow.facto standards, and the rest will follow.

TEACH ACTTEACH ACTRealitiesRealities

This is a very contentious issue, and will This is a very contentious issue, and will continue to be into the future.continue to be into the future.

Language of Act is vague.Language of Act is vague. Act is not perfect – it reflects a balance Act is not perfect – it reflects a balance

of interests between educators and of interests between educators and content owners. content owners.

Practical difficulties with compliance.Practical difficulties with compliance. Does NOT alter DMCA restrictions.Does NOT alter DMCA restrictions. Regardless of flaws, it is an Regardless of flaws, it is an

improvement over previous law.improvement over previous law.

TEACH ACTTEACH ACTAdditional InformationAdditional Information

North Carolina State’s TEACH Act Toolkit:North Carolina State’s TEACH Act Toolkit: www.lib.ncsu.edu/scc/legislative/teachkit/www.lib.ncsu.edu/scc/legislative/teachkit/

Excellent Article by Kenneth Crews:Excellent Article by Kenneth Crews: www.copyright.iupui.edu/teach_summary.htmwww.copyright.iupui.edu/teach_summary.htm

University of Texas TEACH Act University of Texas TEACH Act information:information: www.utsystem.edu/ogc/intellectualproperty/www.utsystem.edu/ogc/intellectualproperty/

teachact.htmteachact.htm

CONCLUSIONCONCLUSION Unless the use of a third party work is Unless the use of a third party work is

allowed by law, you need to obtain allowed by law, you need to obtain permission to use it.permission to use it. Negotiating comprehensive licenses; ORNegotiating comprehensive licenses; OR Obtaining item by item permission.Obtaining item by item permission.

A successful claim of willful infringement A successful claim of willful infringement can lead to large damage awards for can lead to large damage awards for copyright owners (up to $100,000 per copyright owners (up to $100,000 per infringement).infringement).

Innocent infringement = actual damages.Innocent infringement = actual damages.

CONCLUSION (cont’d)CONCLUSION (cont’d) Good faith effort to obtain permission:Good faith effort to obtain permission:

Document and maintain records of attempts Document and maintain records of attempts to track down the owner;to track down the owner;

Check copyright notice information (if Check copyright notice information (if available);available);

Contact publisher and/or author (if known);Contact publisher and/or author (if known); Conduct an internet search;Conduct an internet search; If all else fails, have a search conducted by a If all else fails, have a search conducted by a

search firm or by the Copyright Office.search firm or by the Copyright Office. Send at least two permission requests, Send at least two permission requests,

last one via certified mail. last one via certified mail. Maintain records of attempts to contact Maintain records of attempts to contact

owners.owners.

CONCLUSION (cont’d)CONCLUSION (cont’d)

PLAN AHEAD – it is much easier to address PLAN AHEAD – it is much easier to address issues ahead of time than to seek to issues ahead of time than to seek to retroactively correct mistakes. retroactively correct mistakes.

Cannot obtain a permission for non-profit use Cannot obtain a permission for non-profit use and later switch to for-profit/commercial use and later switch to for-profit/commercial use without obtaining a new permission.without obtaining a new permission.

Make sure to request all the rights you need:Make sure to request all the rights you need: Set term vs. one time use;Set term vs. one time use; As-is vs. modification;As-is vs. modification; Educational/non-profit vs. for-profit, Educational/non-profit vs. for-profit,

commercial;commercial; On-line use likely requires worldwide On-line use likely requires worldwide

permission.permission.

THANK YOUTHANK YOUTuran P. OdabasiTuran P. OdabasiSpecial Associate Special Associate

General CounselGeneral CounselUniversity of University of

Nebraska - LincolnNebraska - LincolnAlexander Building – Alexander Building –

WestWest312 N. 14312 N. 14thth Street Street

Lincoln, NE 68583-Lincoln, NE 68583-04670467

Phone: (402) 472-0259Phone: (402) 472-0259Fax: (402) 472-0398Fax: (402) [email protected]@unl.edu

Peter T. ThewPeter T. ThewContracts CoordinatorContracts Coordinator

University of University of Nebraska-LincolnNebraska-Lincoln

Alexander Building – Alexander Building – WestWest

312 N. 14312 N. 14thth Street StreetLincoln, NE 68583-Lincoln, NE 68583-

04670467Phone: (402) 472-9469Phone: (402) 472-9469

Fax: (402) 472-0398Fax: (402) [email protected]@unl.edu

EDUCATIONAL COPYRIGHT CONSIDERATIONS IN THE DIGITAL MILLENNIUM Metro Community College March 8, 2004 Turan P. Odabasi Special Associate General Counsel,

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