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DMCA, TEACH, and Copyright in Higher Education

October 17, 2007

DMCA, TEACH, and Copyright in Higher Education

by Becky Albitz, Electronic Resources & Copyright Librarian, Penn State

Brief History of Copyright
Copyright are rights granted by U. S. Congress to an author or creator of an original work; does not require registration with the U. S. Copyright office, although registration has its benefits (to file an infringment suit and collect damages, for example). U. S. Constitution Article 1, Section 8; codified in the Copyright Act of 1976; updated in 1998 to take care of digital stuff and bring the U. S. in compliance with other countries’ treaties.

You can actually (as the public) can do a lot with copyrighted works, covered under Fair Use.

Doctrine of First Use (Section 109)
-permits you, as holder of a copyrighted work, to sell, lend, rent, or dispose of the physical manifestation of that copyrighted work without permission
-you do not own the copyright to the work, just the physical object
-does not apply to personal copies of computer programs and phonorecords

Doctrine of Fair Use (section 107)
-the stuff we do in higher education
-reserves in libraries falls under this category
-4 factors: 1) purpose and character of use, whehter such use is of a commercial or for nonprofit educational purposes; 2) published or unpublished (published weighted more); 3) amount and substantiality of the portion used (how much? CONFU was an attempt to prescribe, but not accepted by ALA); 4) actual market effect

Court Cases establishing Fair Use boundaries
1-Basic Books v. Kinko’s Graphics Corp (educational vs. for-profit use) (Supreme Court decision)
2- Sony v. Universal Studios (Betamax) and Newmark, et al. v. Turner, et al. — when can you make copies of movies and shows on TV; the technology became the issue. For personal use; were not available for sale.
3- Harper & Row v. Nation Enterprises (how much is too much?) Time to Heal, autobio by Gerald Ford. Time got first serial rights, but Nation published 400 words, the core of the work.
4-Ludlow Music v. JibJab (copyright infringement or parody?) -“This Land is Your Land” – Woody Guthrie’s estate sued; settled out of court; lawyers posted their letters online, parody was motive. Tune was actually in the publicd domain. Never got to court, and there was no settlement.

Permitted copying (libraries and archives) – section 108
ILL, individual patron use, preservation of unpublished works, replacement of damaged, lost, or stolen published works, or whose format is obsolete

There is a push to update this with, with the Section 108 Working Group; Librarian of Congress can accept or reject the report

Performance and display – Section 110
-big areas for problems in libraries – vido, dvds and films – are exempt from copying

When can you show a film
-in a regularly scheduled class
-in a classroom or similar place
-if tape off TV, can keep for 40 days
-has been updated under TEACH
-Movie Licensing, Inc. will sell licenses for showing commercial films

-essentially can’t show film in public places

-passed in 1998, updated 1976 copyright law
-prohibits circumvention of technological protection measures
-prohibits alteration of info embedded in digital works (watermarks, e.g.)
-limits online service providers’ liability; someone at an institution has to be designated for take-down notices; have to take down material only

-more info:

-Exceptions to anti-circumvention prohibition: every 3 years, Librarian of Congress may make exceptions for certain classes of works; newest wrinkle: in 2006, permitted circumvention of copyright protection of a/v works included in the educational library of a college or university’s film or media studies dept. — media studies of film professors may circumvent — very specific; has to be listed as a film course; has caused a lot of problems; film industry did NOT like this exception, probably reason exception was kept so narrow

Bono Copyright Extension Act
-passed with DMCA; extended copyright from life of holder +50 years to 70 years before stuff goes into public domain
-extension challenged in the Supreme Court-Eldred vs. Ashcroft; Supreme Court refused to hear the course, because Congress has the sole right to change copyright

-passed in 2002 to address concerns surrounding distance education not addressed inthe DMCA
-primarily makes changes to section 110
-institutions may choose to be TEACH Act compliant or not
-TEACH can be used along with fair use- neither is mutually exclusive

To be TEACH Act compliant
1-have to be a nonprofit accredited educational institution or a governmental agency
2-have a policy on use of copyrighted materials
3-provide accurate information to faculty, students and staff about copyright
4-your systems may not interfere with the technological controls for the materials you want to use
5-the materials you want to use must be specifically for students in your class
6-only those students in a class may access the material…
and lots more! (see PowerPoint)

If you do all this stuff, you can use copyrighted materials, print, audio, and video, without seeking permissions or paying fees, BUT TEACH Act is intended to justify use for distance learners, not to replace face-to-face classroom interaction and is NOT to be used as justification for electronic reserves.

Licensing and Copyright
-When you sign a license for an electronic resource, book, video, etc., you give up your copyrights.
-Contract law trumps copyright law
-Know your rights under copyright, and negotiate to have those rights reinstated in the contracts you negotiate!

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