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Gray Matter: Copyright Law, Policy, Digital Works and Higher Education Kimberly B. Kelley, Ph.D. Associate Provost and Executive Director Information.

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Presentation on theme: "Gray Matter: Copyright Law, Policy, Digital Works and Higher Education Kimberly B. Kelley, Ph.D. Associate Provost and Executive Director Information."— Presentation transcript:


2 Gray Matter: Copyright Law, Policy, Digital Works and Higher Education Kimberly B. Kelley, Ph.D. Associate Provost and Executive Director Information and Library Services and Center for Intellectual Property, University of Maryland, University College

3 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

4 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

5 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…

6 The Case of Dr. No

7 What are the issues?

8 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.

9 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.

10 Is it lawful?

11 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)

12 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: – uidebks.htm The use falls under one of the exemptions of the TEACH Act

13 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:

14 Fair Use Only limitation on the exclusive rights of the copyright owner A defense, not an exemption Based on analysis of 4 factors

15 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

16 Fair Use Checklist

17 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

18 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

19 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

20 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

21 DMCA: Anti- circumvention Ban on any act of circumvention Ban on distribution of tools and technologies used for circumvention

22 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

23 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?

24 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.

25 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

26 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 days (NOTE: only restore if the copyright owner has not filed a legal petition against the alleged offender)

27 What Do You Do? The Church of Scientology informs you that you have links to confidential documents, they assert its a violation of their copyright. The offender is a site, that you link to, its not on your campus network.

28 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

29 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 its a student on your ResNet (i.e., residential network)

30 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…)

31 Dr. No Returns

32 Issues?

33 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

34 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

35 Is it lawful?

36 Resources for Further Study: Fair Use The Center for Intellectual Property at UMUC Stanford Universitys Copyright and Fair Use Overview Univ of Texas System Fair Use document The Copyright Management Centers (CMC) Fair Use Checklist Fair Use Issues from the CMC

37 Resources for Further Study: TEACH Act The TEACH Act and some Frequently Asked Questions Copyright1/Distance_Education_and_the_TEACH_Act/TEACHfaq.htm Copyright1/Distance_Education_and_the_TEACH_Act/TEACHfaq.htm Distance Education and the TEACH Act Copyright1/Distance_Education_and_the_TEACH_Act/Default3685.htm Copyright1/Distance_Education_and_the_TEACH_Act/Default3685.htm TEACH Act Checklist from the University System of Texas: The Center for Intellectual Property at UMUC Janis Bruwelheides TEACH Act Highlights and Resources The TEACH Toolkit

38 Resources for Further Study: The DMCA The Digital Millennium Copyright Act The Electronic Frontier Foundations DMCA Archive Jonathan Bands White Paper on the DMCA Complying with the Digital Millennium Copyright Act The text of the DMCA The Association of Research Libraries (ARL) analysis of DMCA: The DMCA by Stanford University: FAQ about Anit-circumvention Provisions of the DMCA

39 Questions?Questions? Thank You!

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