Copyright Basics Summary

• What is it, What Does it Protect
  • Authorıs Original Expression of Facts & Ideas
  • Fixed in Tangible Medium of Expression
• Copyright Ownerıs Exclusive Rights
  • Reproduce, Display, Perform, Distribute, Derivatives
• Balanced by Limitations
  • Fair Use and the Educational Use Exception
    • Rights to Use Without Permission
    • When/Under What Circumstances

Copyright Basics 1

• Constitutional Basis
  • Promote the Useful Arts
• Careful Balance Between Owner And User Rights
• Copyright Act of 1976
  • Protects Authorıs Original Expression of Ideas and Facts
  • Fixed in a Tangible Medium of Expression
  • Print, Film, Video, Etc.

Copyright Basics 2

Copyright = "Bundle Of Exclusive Rights"

• Reproduce
• Distribute
• Sale, Lease, Loan, Rental, Gift
• Perform Publicly
• Literary, Musical, Dramatic, Dance, AV Works
• Display Publicly
• Graphic and Sculptural Works, Etc.
• Prepare Derivative Works or Adaptations
• Rights are Transferable in Whole or in Part

Copyright Basics 3

Ownership of Copyrights

• Author
• Collective Works
  • Contributions to vs. Collective Work Itself
• Joint Works
  • Screenwriters
  • Composer/Lyricist
• Works Made for Hire
  • Employer = Owner, Unless Written Agreement
  • Commissioned Works
    • 9 Categories/Work for Hire
  • Relevance to Distance Learning

Copyright Basics 4

Penalties & Remedies for Infringement

• Actual Damages
• Statutory Damages
  • Innocent/Willful Infringement
  • Registration
  • Special Non-Profit Education & Library Remission Rule
• Injunction
• Attorneys Fees

Copyright Basics 5

Key Limitations on Exclusive Rights

• Fair Use
  • A Defense not an Exemption
  • Factually Based
  • No Bright Line
  • Voluntary Guidelines
• Off Air Copying
• Classroom Copying
• CONFU
  • Balancing of Interests by the Court

Copyright Basics 6

Fair Use -- Continued

Four Part Balancing Test

• Purpose of the Use
  • Commercial or Noncommercial
• Nature of the Work
  • Factual or Creative
• Amount & Substantiality of Portion Used
  • Size vs. Importance to the Whole
• Economic Impact on Market Value of the Work

Copyright Basics 7

The Educational Use Exemption

• Face-to-Face Teaching -- Section 110(1)
  • Performance/Display by Nonprofit Educational Institution
  • In a Classroom or Similar Place Devoted to Instruction
    • Lawful Copy

Copyright Basics 8

Educational Use Exemption -- Continued

• Transmission - - Section 110(2)
  • Performance/Display of Nondramatic Literary or Musical Work
    • Regular Part of Systematic Instructional Activities
    • By Nonprofit Ed. Institution or Governmental Body
    • Transmission Primarily Intended for Reception In
      • Classroom or Place Normally Devoted to Instruction or
      • By Disabled or Government Employees/Official Duties or "Special Circumstances"

Copyright Basics 9

Educational Use Exemption -- Continued

• Exemption of Limited Scope
  • Legislative History
    • Also "Special Circumstances"
  • Closed Circuit vs. Broadcast
  • Digital Millennium Copyright Act On-Line Distance Education Study

Does Copyright Apply To The Web?

• YES!!!!!!!!!!
• But Gray Areas
  • Particularly Educational Use Exception and Fair Use
• Legislative And Voluntary Fixes
  • CCUMC Electronic Multimedia Guidelines
    • Controversial
    • Time, Portion, Size Limitations
    • Content Owners Support: Libraries & Higher Ed Oppose
    • But Useful Guidance
  • Digital Millennium Copyright Act On-line Distance Learning Study

Distance Education DMCA Online Study

• Section 403
• Register of Copyrights Recommendations to Congress on "How to Promote Distance Education Through Digital Technologies...While Maintaining an Appropriate Balance...."
  • Consult With Nonprofit Institutions, Copyright Owners, and Libraries
  • Pleadings, Hearings, Demonstrations
  • Released May 25, 1999
  • http://www.loc.gov/copyright/disted

Distance Education DMCA Online Study 2

Register Directed to Consider:

• Need for an Exemption for Distance Education Through Interactive Digital Networks
• Categories of Works Covered by the Exemption
• Quantitative Limitations on Portions of Works That may be Used
• Parties Entitled to the Benefits of the Exemption
• Eligible Recipients of Distance Education Materials
• Technological Measures Against Unauthorized Access, Use or Retention of Material as a Condition of Eligibility
• Impact of License Availability
• Other Digital Network Distance Education Issues

Register's Findings and Recommendations

"Report on Copyright and Digital Distance Education" http://www.loc.gov/copyright/disted

Key Findings

• Distance Education is a "Vibrant and Burgeoning Field"
• Postsecondary-Level Distance Education at all Levels is Growing Most Rapidly
• Distance Education is at a "Particularly Critical Point in Time"
• Distance Education is Rapidly Expanding Because of the Use of Digital Technologies
• The New Technologies Have Made Distance Education Courses "More Convenient and Better Suited to the Needs of Different Students"
• Distance Education Is "Reaching Wider Audiences, Covering all Segments of the Population"
• The Postsecondary Audience Is Increasing at the Fastest Pace Because of Distance Educationıs "Responsiveness to the Needs of Older, Non-traditional Students and Professionals Seeking Professional Development or Training Courses
• The Growth of Distance Education Has Led to Changes Among the Providers, "With Courses Offered by Both Nonprofit and For-profit Entities, on Both a Nonprofit and For-profit Basis, Through Varieties of Partnerships Among Educational Institutions and Corporations"
• Many Educational Institutions Have Had "Recurrent Problems With Licensing for Digital Distance Education" (Primarily Difficulty in Locating the Copyright Owners, Tardy Responses, or Unreasonable Costs)
• Distance Educational Providers Commonly "Limit Access" to Courses to "Students Enrolled in a Particular Class Through the Use of Firewalls, Passwords, IP Address, Domain Name Screening, Hardware Connections, Encryption or the Use of CD-ROMS
• The Federal Government Has Actively Promoted Distance Education in Recent Years Through New Student Aid Rules and Funding Programs
• Current Copyright Law Does Not Adequately or Fully Address the Needs of Distance Education or Content Owners

Recommendations

1. Amend Section 110(2) of the Copyright Act to Bring It Into the Digital Age
   • Expand Rights Exempted by the Section 110(2) to the Extent Technologically Required by Adding Reproduction and/or Distribution Needed to Accomplish Digital Transmission
   • Specify That the Performance or Display Must be "Mediated"
     • Use of the Work an Integral Part of the Distance Education Class, and Controlled by the Instructor
     • Performance or Display Analogous to Activity That Would Occur in a Live Classroom Setting
   • Eliminate the Physical Classroom Requirement, but Limit the Benefit of the Amended Provision to Students "Officially Enrolled in the Particular Course for Which the Transmission Is Made"
     • Standard: Transmission Made "Solely, to the Extent Technologically Feasible, for Reception by the Defined Class of Eligible Recipients"
   • Add New Safeguards to Counteract New Risks to the Integrity of the Copyrighted Works Used Under Amended Section 110(2)
     • Including Prevention of Unauthorized Access and Downstream Copying or Dissemination
   • Continue to Limit Eligibility to Use Section 110(2) to Nonprofit Educational Institutions
     • Query: Substitute Accreditation for Nonprofit
   • Expand Categories of Works Covered by the Section 110(2) Performance Exemption Beyond Nondramatic Literary and Musical Works, but With Limitations and Safeguards to Protect the Integrity of and Market for the Work
     • Section 110(2) Could Be Broadened to (A) Permit the Performance of Only "Reasonable and Limited Portions" of Additional Categories of Works, Including Audiovisual Works
   • Notwithstanding Current Section 110(2) Limitations, Educators May Use Other Types of Works in Digital Distance Education Courses Under the Fair Use Doctrine
     • Particularly Where the Work Used Is the Subject of Study in a Class Offered by a Nonprofit Institution
     • Only Illustrative Portions are Used
     • Risks to the Market for the Work are Controlled
   • But
     • A "Limited Portion" Means the Equivalent of a Film Clip
     • Reasonableness of Amount Measured by the Nature of the Market for That Type of Work and the Pedagogical Purposes of the Use

2. Clarify That Fair Use Is Fully Applicable in the On-line Environment

3. Defer Consideration of the Need for a Stand Alone Distance Education Exemption Until Newly Emerging Licensing Schemes and Technologies are in Place That Can Limit Delivery of Distance Education Courses to Enrolled Students and the Studentsı Ability to Engage in Unauthorized Copying and Downstream Distribution

Ownership Of Electronic Courses

• Historically, Faculty Own the Copyright in their Scholarly Works
  • Traditional Works: Text Books, Journal Articles, Lecture Notes, Syllabi, etc.
• Administrators View Electronic Courses Differently Than Traditional Works of Scholarship
• Issue To Be Considered With Electronic Courses
  • Who Owns the Course
    • Instructor Or Institution
  • Work Made for Hire
    • Within Scope of Employment or Commissioned
  • Substantial Use Of Institutional Resources
    • Type and Amount
  • Who Can Use the Course
    • Licensing
  • Who Can Update The Course
  • Revenue Sharing
• Compensation
  • No Clear Trend
  • OSU and ITC Studies
  • Revenue Sharing

Other Digital Millennium Copyright Act Provisions

• On-Line Service Provider Liability
  • New Section 512 Of Copyright Act of 1976
  • Limits ISP's Copyright and Subscriber Liability
    • Notice and Take Down
    • Knowledge and Control
  • Designation of Agent to Receive Notice
  • Subpoena to Identify Infringer
  • Injunctions Against ISP Providing Access to
    • Infringing Material
    • Infringing Subscribers

Educational Institution Is An OSP Like AOL

Nonprofit Educational Institutions: Section 512(e)

• When is Knowledge of Violation Knowledge?
• "The University Environment Is Unique"
• On-Line Infringing Actions of Faculty and Graduate Student Employees When "Performing a Teaching or Research Function"
• On-Line Access to Material not "Required or Recommended " for Employeeıs Course Within Past 3 Years
• More Than 2 Notifications Alleging Infringing Activity by Employee Within 3 Years
• Institution Copyright Compliance Instruction
• Traditional Defenses Like Fair Use Unaffected

Anti-Circumvention of Effective Technological Protection Measures

• Limited Nonprofit Education Institution Exemption

Copyright Management Information

• Protect Integrity of CMI

Distance Education Intellectual Property Issues by Kenneth Salomon

Dow, Lohnes & Albertson, PLLC
Washington, DC
202-776-2566
ksalomon@dlalaw.com
http/www.dlalaw.com