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Campus Copyright

Rights and Responsibilities:

A Basic Guide to
Policy Considerations
This document was developed by representatives of the Association of American Universities (John
Vaughn), the Association of Research Libraries (Duane Webster and Mary Case), the Association of
American University Presses (Peter Givler), and the Association of American Publishers (Allan Adler).
These organizations represent sectors which play central roles within higher education in the creation,
use, and management of copyrighted works. The principal objective of this project was to bring together
these groups, which have differing perspectives and often conflicting views on the appropriate use of
copyrighted works, to produce a document that conveys their common understanding regarding the basic
meaning and practical significance of copyright for the higher education community. The association
representatives above gratefully acknowledge the invaluable advice and drafting assistance of Professor
Laura Gasaway (University of North Carolina, Chapel Hill) and attorney Bruce Joseph (Wiley Rein &
Fielding LLP) in producing this document.

Copyright of the material in this booklet is held jointly by Association of American Universities, the
Association of Research Libraries, the Association of American University Presses, and the Association
of American Publishers. Permission is granted to reproduce and distribute copies of the work in its
entirety for nonprofit educational or library purposes, provided that copies are distributed at or below
cost, that the copyright notice is included on each copy, and that no alterations or modifications in the
text are made.

December 2005
TABLE OF CONTENTS

Introduction ..........................................................................................................................1

Importance and Purpose of Copyright .................................................................................3

Part I: Copyright Basics ......................................................................................................5

Section
A. What is Copyright? ......................................................................................5
B. How Does a Copyright Come into Being? ..................................................6
C. Duration of Copyright and the Public Domain ............................................6
D. Ownership of Copyright and Transfers ........................................................7
E. Licenses........................................................................................................8
F. Exceptions and Limitations on the Copyright Rights ..................................9
G. Exceptions and Limitations on the Copyright Rights—Fair Use ................9
H. Exceptions and Limitations on the Copyright Rights
—Fair Use Guidelines...............................................................................11
I. Exceptions and Limitations on the Copyright Rights
—Face-to-Face Instruction .......................................................................12
J. Exceptions and Limitations on the Copyright Rights
—Distance Education ...............................................................................13
K. Exceptions and Limitations on the Copyright Rights—First Sale .............15
L. Exceptions and Limitations on the Copyright Rights
—Libraries and Archives ..........................................................................15
M. Copyright Infringement and Applicable Legal Remedies .........................17
N. Limitations on Liability for Infringement—Service Provider Liability ....19
O. Technological Protection Measures ...........................................................21
P. Special Case—State Institutions ................................................................21

Part II: Institutional Policy Issues .....................................................................................23

Section
A. Why Adopt a Copyright Policy? ................................................................23
B. Educational Materials about Copyright Law .............................................23
C. The Policy Requirements of the TEACH Act ............................................24
D. The Policy Requirements of the Service Provider Liability Limitation ....24
E. Other Potential Policy Issues—Faculty Ownership of Copyrights............26
F. Other Potential Policy Issues—Fair Use
and the Classroom Guidelines .................................................................. 27
G. Other Potential Policy Issues—Coursepacks .............................................27
H. Other Potential Policy Issues—Reserves and Electronic Reserves ...........28

Conclusion .........................................................................................................................30
A S S O C I A T I O N O F A M E R I C A N U N I V E R S I T I E S

Campus Copyright Rights and Responsibilities A BASIC GUIDE TO


POLICY CONSIDERATIONS

INTRODUCTION

T
his document has been prepared by the Part I of this document provides a primer on
Association of American Publishers, the copyright law. Part II addresses specific issues
Association of American Universities, that may be relevant to development of an
the Association of American University Presses, institutional copyright policy.
and the Association of Research Libraries; and
has been endorsed by the American Council on Copyright law protects the author’s original
Education and the Authors Guild. It is intended expression in creative works such as writings,
for the following purposes: music, movies, art, and images. Copyright law
should not be confused with trademark law,
• to present a basic explanation of which protects symbols and other designations
copyright law with an emphasis on its of the origin of a product or service, or with
application to colleges and universities; patent law, which protects inventions. Although
all three are referred to generally as “intellectual
• to provide a discussion of current property law,” the subject matter and nature of
copyright issues in the higher education protection in each are very different.
setting that reflects the concerns
and points of view of colleges and Why would universities and colleges find this
universities and the publishing document useful?
community with which these institutions
regularly interact and collaborate; • Creation and use of copyrighted works
lie at the heart of the educational
• to encourage colleges and universities and research activities of institutions
to review their institutional policies on of higher learning. Colleges and
the use and management of copyrighted universities create and use hundreds of
works in light of the continuing copyrighted works every day.
evolution of digital technologies and
the numerous revisions to copyright and • Although the underlying principles
related laws generated in part by that of copyright have not substantially
evolution; and changed, the legal landscape has
changed considerably as a result of a
• to provide information to colleges and number of statutory amendments and
universities concerning the development court decisions.
of educational materials for their
students, faculty, and staff that provide • Developments in digital technologies
guidance on the creation, use, and have produced new ways to create
management of copyrighted works in and use copyrighted works, enhancing
this shifting legal and societal landscape. their availability and utility, while
2 Campus Copyright Rights and Responsibilities

simultaneously increasing the potential


risks of infringement to copyright
owners.

• As more copyrighted works are made


available in digital formats, efforts are
increasingly being made to control
access and use by contractual licenses,
rather than sale of a copy.

• Because educational institutions have


become operators of digital networks,
they should understand laws that can
limit the risk of institutional liability
for copyright infringement by faculty,
students, and other network users,
conditioned on certain institutional
policies and actions.

This document is not intended to provide legal


advice or serve as a substitute for consultation
with competent legal counsel on matters
regarding the development and implementation
of institutional policies or compliance with
copyright law.

Every institution appropriately will have its


own approach to the formulation of institutional
policy and the development of educational
material. This document should not be read to
suggest that any one policy or set of materials
is appropriate for all institutions. Institutions
have great flexibility to shape copyright policies
and develop materials to meet their own needs.
Similarly, copyright owners are likely to
have their own views regarding uses of their
copyrighted content in particular circumstances.
Campus Copyright Rights and Responsibilities 3

IMPORTANCE AND PURPOSE


OF COPYRIGHT

U
niversities and colleges are major Copyright provides a basis for the publishing
stakeholders in the world of copyright. operations of university presses and scholarly
As part of the scholarship, research, societies, and makes possible the contributions
and teaching activities conducted at these of innumerable other authors and publishers
institutions, faculty and students frequently to the educational process. In this capacity,
create and exercise rights with respect to their copyright benefits colleges and universities
own copyrighted works while also making economically in the form of payments from the
extensive use of the copyrighted works of others. sale or licensing of a work, and also provides
important non-economic benefits that accrue
The Constitution authorizes the enactment of to faculty authors, including heightened
copyright laws by granting to Congress the professional visibility and scholarly reputation,
power to “promote the progress of science as well as preservation of the integrity of
and useful arts, by securing for limited times their creative works—all of which factor into
to authors and inventors the exclusive right to considerations for tenure and promotion.
their respective writings and discoveries.” In
practical terms, copyright law serves public In sum, copyright law supports a fundamental
ends by providing individuals with an incentive mission of colleges and universities to
to pursue private ones: copyright rewards create and disseminate new knowledge and
authors for the creative exercise of their talents understanding through teaching, research, and
through the provision of proprietary rights for scholarship in two basic ways: (1) by providing
the commercial exploitation of their works, incentives for the creation of new works through
which provides an economic incentive for them the provision of proprietary rights to copyright
to create new works that advance the public owners, and (2) by providing limitations on
welfare through the proliferation of knowledge those rights in order to facilitate public access to
and ideas. and use of creative works.

At the same time, copyright law recognizes


the public interest in ensuring the free flow of
information and ideas, and imposes important
restrictions on the scope of copyright that
are designed to facilitate this free flow
of information and ideas. Many of these
limitations on the rights of copyright owners
are particularly important in the academic
environment and several are specifically
designed for nonprofit educational institutions.
A S S O C I A T I O N O F A M E R I C A N U N I V E R S I T I E S

Campus Copyright Rights and Responsibilities PART I: COPYRIGHT BASICS

SECTION A • literary works (including novels, articles,


WHAT IS COPYRIGHT? texts, poems, and computer programs);
• musical works (the notes and lyrics

C
opyright is a doctrine of federal law written by songwriters);
that invests the “author” of a creative • dramatic works (such as plays);
work of original “expression” with • pantomimes and choreographic works;
certain exclusive rights, enforceable by law, • pictorial, graphic and sculptural works
for a limited period of time, and subject to (including photographs and drawings);
defined limitations. U.S. copyright law is found • motion pictures and other audiovisual
in the Copyright Act, Title 17 of the United works (including television programs
States Code. Unless otherwise noted, statutory and home movies);
references in this document are to the Copyright • sound recordings (the sounds made
Act and Title 17. by the performing artist and record
company);
These exclusive rights, set forth in Section • architectural works; and
106 of Title 17, include the rights to do, and to • compilations and databases of the
authorize others to do, the following: foregoing and of other material (to the
extent they reflect original “authorship”
• reproduce copies of the work; in the selection or arrangement of
• distribute copies of the work to the elements).
public;
• create derivative works based on the Copyright cannot apply to the following (even
work; if they are contained within works of the types
• perform the work publicly (in the case of identified above) (see Section 102(b)):
certain types of works) and, in the case
of sound recordings, to do so by digital • facts
transmission; and • ideas
• display the work publicly (in the case of • processes or procedures
certain types of works). • concepts
• principles
Violation of any of these rights, by engaging • systems or methods of operation
in the activity without authority from the • discoveries
copyright owner or a relevant statutory
exception or limitation on the right at issue, Copyright does not apply to works created by
is called “infringement” and is subject to an officer or employee of the United States
potentially significant civil liability and, in Government, acting within the scope of his or
certain cases, criminal liability. Infringement her official duties. There is no similar exception
and the legal remedies for infringement are with respect to works created by state or local
discussed in Part I.M. government officials or employees. See Sections
105, 101.
Copyright can apply to a wide array of different
types of works, including those identified in In the United States, copyright is governed
Sections 102(a) and 103: exclusively by federal law, which generally
preempts state laws addressing the same rights.
6 Campus Copyright Rights and Responsibilities

The federal courts have exclusive jurisdiction A work is protected by copyright even if it does
to interpret, apply, and enforce the copyright not contain a formal copyright notice (the word
statutes enacted by Congress, which means that “copyright,” abbreviation “copr.,” or symbol
state courts generally cannot consider copyright “©” with the year of first publication and
cases. See Section 301 (preemption) and 28 name of the copyright owner), although works
U.S.C. § 1338 (exclusive jurisdiction). first published before March 1, 1989, without
notice, may have entered the public domain (see
It is important to distinguish the copyright in a discussion of the public domain in Part I.C).
work from the ownership of a particular copy
of a work. For example, ownership of a copy
of a book does not include ownership of any of SECTION C
the copyright rights, such as the right to make DURATION OF COPYRIGHT
copies of the content of that book. See Section
AND THE PUBLIC DOMAIN
202. There are, however, specific exceptions and

C
limitations on the copyright rights that allow
opyrights may last for a long time.
the owner of a copy of a work to take certain
Determination of the precise term is
actions with respect to that work that do not
complex and, in the United States,
violate the exclusive rights of the copyright
depends on when the work was first created and
holder. See Parts I.F-L.
published.

• As a general rule, works first published


SECTION B before January 1, 1978, are protected
HOW DOES A COPYRIGHT for 95 years from the date of first
COME INTO BEING? publication, or 120 years from the date
of creation, whichever is longer, but

A
copyrightable original work of creative there are numerous exceptions.
expression is protected by copyright
automatically, from the moment it is • Works by named authors first published
fixed in any “tangible medium of expression” after January 1, 1978, are protected for
(such as paper, film, or a computer disk or the life of the author plus 70 years.
memory) from which it can be perceived,
reproduced, or otherwise communicated, either • “Works made for hire” (see Part I.D),
directly or with the aid of a machine or device. anonymous works and pseudonymous
For example, copyright attaches to a literary works are protected for the 95- or 120-
work such as an article or a novel as soon as year term described above.
the author writes it on paper or types it onto a
computer hard drive. No other act or process • As a result of the way copyright terms
need take place. are calculated, and as a result of a
20-year extension of copyright terms
Although registration of a work with the U.S. enacted in 1998, a good rule of thumb is
Copyright Office is not necessary to obtain that works first published in the United
copyright protection, there are significant States in 1922 and before are in the
benefits to the copyright owner from registration public domain.
if the owner must go to court to enforce a
copyright against an alleged infringer. See A work whose term of copyright protection
discussion of remedies in Part I.M. has expired, or a work that was not subject
Campus Copyright Rights and Responsibilities 7

to copyright protection (e.g., a work of the The “author” of a work created by an


U.S. Government), is said to be “in the public employee acting within the scope of his or her
domain.” Such a work may freely be copied, employment is the employer, which may be a
distributed, performed, displayed, or otherwise person or an entity, such as a corporation. This
used in ways unrestricted by copyright rights. is the so-called “work made for hire” doctrine.
There are certain complexities:
International copyright is quite complex and is
beyond the scope of this brochure. Copyright is • The status of a person as an employee
territorial, but the U.S. has copyright agreements is typically analyzed under the common
with the vast majority of countries of the world. law applicable to the employee-employer
A general rule of thumb is that works by authors relationship, not a special copyright
of those countries or works first published in rule. The courts have identified relevant
those countries are protected in the U.S. as if factors to be considered in making this
they were U.S. works, with some exceptions and determination.
differences.
• An independent contractor is not
Copyright notice was required to be placed on an employee. However, there is a
published works prior to 1989. Works published special rule by which the work of an
under the authority of the copyright owner independent contractor also may be
without copyright notice prior to March 1, 1989, a “work made for hire.” Specifically,
are likely to be in the public domain, but their the work must fall within one of
status should be checked. nine enumerated categories (notably
including instructional texts, translations,
tests, answer materials for tests,
SECTION D compilations, and audiovisual works, but
OWNERSHIP OF COPYRIGHT not computer programs) and the parties
must agree in writing that the work is a
AND TRANSFERS
“work made for hire.”

A
s noted, the initial owner of the
• The ownership of copyright in course
copyright in a work is the “author”
materials and writings created by
of the work. A surprising number of
university and college faculty acting
issues can arise relating to identification of the
within the scope of their employment,
“author.”
particularly new forms of digital course
materials, raises a complex set of issues.
Normally, the author of a work created by an
For a more detailed discussion, see Part
individual is the individual.
II.E.
A “joint work” is defined as a work created
Ownership of all or any part of any right under a
jointly by two or more authors with the
copyright may be shared or transferred, in whole
intention that their contributions be merged into
or in part, by the author. This is often the case
inseparable parts of a single work. Each author
when a work is to be published, as publishers
owns an undivided interest in a joint work,
often seek ownership of the copyright, or at
and may freely use and exploit the rights in the
least of the exclusive right to distribute copies
work, subject to a duty to share the profits from
of the work within the United States and certain
such exploitation with the other joint author(s).
other rights.
8 Campus Copyright Rights and Responsibilities

Transfer of ownership of all or any part of a are more likely to avoid subsequent disputes
copyright must be accomplished in writing between publishers and institutions regarding
signed by the transferor. A transfer of the entire what rights have actually been licensed.
copyright is often referred to as an “assignment.”
A license may be implied by the parties’
Each of the copyright rights is divisible across reasonable expectations or conduct. For
numerous parameters (for example, by time example, if one hires a contractor to create
period, geographical area, medium, etc.) and materials for a Web site, even though the
transfers may be for all or any such division of contractor may retain ownership of the
one or more of the rights. Examples of partial copyright in the materials, the expectation of
transfers include: transfers of all or some of the the parties could well lead to an implied non-
exclusive rights for a limited period of time; exclusive license to include the materials on the
transfers of certain rights limited by territory; Web site.
transfer of rights (e.g., distribution) in certain
forms, or by certain media. Licenses are contracts. As contracts, they create
rights and obligations for both publishers
Only the “owner” of a relevant right under the and institutions as parties to those contracts.
copyright may bring an infringement action. Institutions may wish to consider ways to
communicate information about contractual
rights and obligations to those within the
SECTION E institution who are bound by them or can benefit
LICENSES from them.

A
license is a grant of rights to a third Licenses typically are governed by state
party to exercise all or part of one or contract law rather than by federal copyright
more of the copyright rights. Again, the law. Depending on the circumstances,
rights are divisible across numerous parameters violation of the terms of a license relating to
for purpose of licensing. a copyrighted work may give rise to a claim
for breach of contract under state law or for
Licenses may be “exclusive” or “non- copyright infringement under federal law, or
exclusive.” Exclusive licenses grant the right to both types of claims. License terms may be
to exercise all or part of the copyright rights to negotiable or non-negotiable (as they often are
a single person or entity. Exclusive licenses are for works available in standard form in the mass
treated under the law as transfers of ownership market). Some non-negotiable licenses may be
of the licensed rights. Thus, they must be in unenforceable under the laws of certain states.
writing and they include the right to sue for
infringement. Licensing has become common for digital forms
of works. There continues to be disagreement
A licensee under a non-exclusive license about the advantages and disadvantages of
typically is not the only person or entity granted licensing and certain license restrictions.
the right to do the specified actions. An example
would be the license to use Windows 2000, Some argue that the licensing of digital media
which all users receive. permits more options for control and use of a
work and more variety and choice in arranging
A non-exclusive license need not be in writing; pricing and other terms of use.
it may be oral. Written licenses, however,
Campus Copyright Rights and Responsibilities 9

Others counter that licensing is often used in statutory limitations on rights granted to the
an effort to curtail the statutory limitations on copyright owner. Several are particularly
copyright, including certain actions available to relevant to institutions of higher learning. Most
the owner of a copy of a work. For this reason, of the exceptions and limitations are found in
there is an ongoing debate as to whether all such Sections 107 through 122 of the Act.
licenses concerning the use of a copyrighted
work are, and should be, enforceable contracts The exceptions and limitations include:
apart from copyright law, or whether there are
circumstances in which, as a matter of law • fair use—Section 107;
and public policy, the statutory limitations on • performances and displays in face-to-
copyright rights (discussed in the next section) face teaching—Section 110(1);
can, and should, pre-empt license terms that • distance learning—Sections 110(2) and
narrow or eliminate the ability to engage in 112(f);
uses of a copyrighted work that are otherwise • first sale—Section 109;
permitted under copyright law. • reproduction by libraries and archives—
Section 108; and
This debate, and the limitations on copyright • limitations on liability for digital
rights, should be kept in mind when negotiating network service providers—Section 512.
licenses or acquiring copies of copyrighted
works that are subject to licenses. Another important exception has already been
mentioned in Part I.A: the rule that copyright
Copyright owners are free to forego the protection does not extend to any fact, idea,
assertion of any of their rights and may, system, process, or method of operation. See
likewise, shorten the term of their copyright. Section 102(b).
Some copyright owners are choosing to
accomplish this by the way in which they
structure their licenses. One example is SECTION G
the range of online agreements available EXCEPTIONS AND LIMITATIONS ON THE
through the Creative Commons (http://www.
COPYRIGHT RIGHTS—FAIR USE
creativecommons.org).

T
he “fair use” doctrine is one of the
important safety valves of U.S.
SECTION F copyright law. The doctrine arises
EXCEPTIONS AND LIMITATIONS ON THE under a statutory provision (Section 107) which
COPYRIGHT RIGHTS provides that certain uses of a copyrighted work
that might otherwise violate an exclusive right

C
opyright is limited to a bundle of of the copyright owner are not infringement.
expressly stated rights, as described
in Part I.A. For example, a copyright The doctrine is flexible, but its application
owner does not gain exclusive rights to control often is uncertain, as it generally requires
the reading of a work, private performance or consideration of all of the facts and
display, or other uses that are not enumerated in circumstances surrounding the particular use
Section 106. of the copyrighted work at issue. As a result,
the fair use doctrine has been the subject of
In addition to these inherent limitations, the numerous court cases.
Copyright Act contains numerous express
10 Campus Copyright Rights and Responsibilities

Section 107 includes a non-exhaustive, be more subject to fair use than creative works
illustrative list of uses that may qualify as fair such as musical compositions, novels and
use: “[T]he fair use of a copyrighted work, motion pictures. Some works are less likely to
including such use…for purposes such as support fair use, such as standardized tests and
criticism, comment, news reporting, teaching work booklets that by their nature are meant to
(including multiple copying for classroom use), be “consumable.”
scholarship, or research, is not an infringement
of copyright.” The amount and substantiality of the portion
used considers how much of the copyrighted
Section 107 then lists four non-exclusive factors work is used in comparison to the copyrighted
that a court must consider when assessing work as a whole. Generally, the smaller the
whether a particular use is fair use. The four amount used, the more likely the use will be
factors are weighed against each other; no one is considered to be a fair use. Conversely, the
determinative in every case: larger the portion of a work used, the less likely
it is to be fair use, although in appropriate
• the purpose and character of the use, circumstances (e.g., research, classroom display
including whether such use is of a or distribution, parody) use of an entire work
commercial nature or is for nonprofit (e.g., an article, a short poem, musical work
educational purposes; or photograph) may be a fair use. There is no
• the nature of the copyrighted work; bright line for determining whether a certain
• the amount and substantiality of percentage, number of words or bars of music
the portion used in relation to the used qualifies as a fair use. The “amount and
copyrighted work as a whole; and substantiality of the portion used” also is a
• the effect of the use on the potential qualitative test; even though one reproduces
market for or value of the copyrighted only a small portion of a work, that portion
work. still may be too much if what is reproduced is
deemed to be the “heart of the work.”
In evaluating the purpose and character of the
use, nonprofit uses and educational uses are The effect on the potential market for or value
generally favored and more likely to be deemed of the work factor calls for consideration
fair use than commercial uses. However, not of the extent to which the use is likely to
all nonprofit educational uses are fair use; and cause economic harm to the owner due to
not all commercial uses fail to qualify as fair the displacement of opportunities to sell the
use. Transformative uses of a work (those that work or license its use. Courts have typically
add something new, with a further purpose limited this inquiry to markets that have been
or different character, altering the first with or are likely to be developed by the copyright
new expression, meaning, or message) rather owner. Even if the loss an owner incurs from
than those that merely reproduce the work, are a particular use is not substantial, courts have
generally favored in considering this factor in held that, in appropriate cases, this factor
fair use determinations. requires consideration of whether there would
be substantial harm to the market for the work,
The nature of the copyrighted work focuses on or derivative works based on the work, if the use
the work itself. The legislative history and case were to become widespread.
law suggest that certain types of works are more
susceptible to fair use than others; for example,
scientific articles that are factual in nature may
Campus Copyright Rights and Responsibilities 11

SECTION H • The Classroom Guidelines are not


EXCEPTIONS AND LIMITATIONS ON THE law or regulation. However, they
COPYRIGHT RIGHTS—FAIR USE GUIDELINES
were published in the House Report
that accompanied the 1976 Copyright

B
ecause fair use requires a case-by-case Act, and were specifically cited in the
assessment, efforts have been made Conference Report to the 1976 Act “as
over the years to develop guidelines part of [the legislators’] understanding
in order to reduce some of the uncertainties for of fair use.” The Guidelines also were
institutions in making such assessments. endorsed by the American Council on
Education and have been cited with
During the course of the debates leading up to approval by some courts. See H.R. Rep.
the Copyright Act of 1976, representatives of No. 94-1733, at 70-71, reprinted in 1976
a number of publishers, authors, and education U.S. Code Cong. & Ad. News 5811-12.
associations developed the “Classroom
Guidelines” (see Agreement on Guidelines As is often the case with such guidelines, the
for Classroom Copying in Not-For-Profit Classroom Guidelines are regarded by many
Educational Institutions, H.R. Rep. No. 94- to embody a trade-off between certainty and
1476 at 68-70, reprinted in 1976 U.S. Code flexibility. Some instructors keep their copying
Cong. & Ad. News 5681-83), which were of copyrighted materials for classroom use
intended to provide greater clarity concerning within the limits defined by the Guidelines
the application of fair use to the reproduction in order to take advantage of the safe harbor
of certain copyrighted works by teachers in they provide. However, not all members
nonprofit educational institutions for research or of the academic community support such
instructional purposes. Several important points guidelines; concerns have been expressed that
should be considered when relying upon the guidelines, by their nature, will be construed as
Classroom Guidelines: limiting the flexibility of fair use, rather than
establishing minimum safe harbors. Indeed,
• The Guidelines provide a safe harbor some institutions, in their own policies, have
for teachers who make single copies of mistakenly treated the guidelines as defining the
works for their own scholarly research extent of fair use. They do not.
or for their use in teaching or preparation
for teaching. The Guidelines identify considerations relating
to the reproduction and distribution of multiple
• The Guidelines also define the scope of copies for students: brevity, spontaneity, and
a “safe harbor” for teachers who wish to cumulative effect. Additionally, the students
distribute multiple copies of copyrighted may not be charged more than the cost of
works to their students without seeking making the copies, and each copy must contain
permission or paying royalties. a notice of copyright.

• As a safe harbor, the Guidelines • The brevity factor sets forth word and
represent minimum and not maximum portion limitations.
allowances. By definition, therefore,
there will be instances in which actions • Spontaneity means that the copying is
that fall outside the Guidelines are still done at the instigation of the individual
fair use. teacher and that the decision to
reproduce the work is made so close in
12 Campus Copyright Rights and Responsibilities

time to the moment the faculty member opportunities and challenges confronting
wants to use the work that it would be copyrighted works in the digital environment,
unreasonable to expect timely reply to none of the proposed fair use guidelines was
a request to the copyright owner for formally adopted.
permission.

• The cumulative effect factor limits the SECTION I


copying of particular material to one EXCEPTIONS AND LIMITATIONS ON THE
course and places limitations on what
COPYRIGHT RIGHTS—FACE-TO-FACE
may be copied. For example, the safe
harbor generally is limited to one article INSTRUCTION

S
or two excerpts per author or three per
periodical volume or other collective ection 110(1) provides that the
work during the class term. performance or display of a copyrighted
work by instructors or pupils in the
The safe harbor provided by the Guidelines: course of face-to-face teaching activities of
a nonprofit educational institution are not
• does not include copies of the same item infringement of copyright, notwithstanding the
made by the same teacher from term to rights of the copyright owner. There are certain
term, limitations:

• will not apply to the reproduction and • The performance or display must be in
distribution of more than nine instances a classroom or similar place devoted to
of multiple copying for one course instruction.
during the class term.
• A performance or display of a motion
There are two other Guidelines developed in picture or other audiovisual work or
1976 and endorsed by Congress that deserve an image from such a work must be
attention—the “Guidelines on the Educational from a lawfully made copy (or one that
Uses of Music” and the “Guidelines on the person making the performance or
Photocopying-Interlibrary Arrangements.” The display had no reason to believe was
former Guidelines appear immediately after the unlawfully made). A copy made pursuant
Classroom Guidelines, in H.R. Rep. No. 94- to permission or an applicable exception
1476 at 70-71, 1976 U.S. Code Cong. & Ad. or limitation on the copyright rights
News 5684-85; and the latter Guidelines may be (e.g., fair use) would be considered
found in H.R. Rep. No. 94-1733 at 72-3, 1976 “lawfully made.”
U.S. Code Cong. & Ad. News 5813-14.
The exception applies to any type of
In the mid-1990s, the U.S. Patent and copyrighted work. Thus, for example, it is
Trademark Office sponsored a series of permissible to perform a play or a motion
discussions, known as the Conference on picture, or to display a photograph or a poem in
Fair Use (CONFU), which sought to develop the classroom.
consensus among representatives of education
and library groups, publishers, and copyright Like the other specific exceptions and
owners, on guidelines for fair use of digital limitations to the copyright rights, uses that
works. Although the conference fostered do not meet the specific limitations of Section
useful exchanges among the groups on the 110(1) may still qualify as fair use.
Campus Copyright Rights and Responsibilities 13

There is a separate, related exception to the • The exception for displays applies only
copyright rights that is not specifically directed to the display of amounts comparable
to educational settings but that is relevant to to that which is typically displayed in
face-to-face teaching. Under Section 109(c), the course of an in-person classroom
the owner of a particular lawfully made copy, session.
or any person authorized by such owner, may
display that copy publicly, either directly or by • The exception does not apply to the
projection of no more than one image at a time, performance or display of a work if
to viewers present at the place where the copy given from a copy that was not lawfully
is located. Unlike Section 110(1), this exception made and the institution making the
applies only to the owner of a copy or someone performance knew or had reason to
authorized by the owner, not to a person who believe it was not lawfully made.
acquired the copy through rental, lease, or loan.
This exception, however, is not subject to some • The exception applies only to
of the Section 110(1) limitations. performances or displays that (1) are
made by, at the direction of, or under
the supervision of, an instructor (e.g., by
SECTION J the instructor or a student) as an integral
part of the distance education analog of
EXCEPTIONS AND LIMITATIONS ON THE
a “class session” offered as a regular part
COPYRIGHT RIGHTS—DISTANCE EDUCATION of the systematic “mediated instructional

I
activities” of a nonprofit educational
n 2002, Congress enacted the Technology, institution or governmental body, and
Education and Copyright Harmonization (2) are directly related and of material
Act—or TEACH Act—which expanded the assistance to the teaching content of the
scope of the copyright exception applicable to transmission.
distance education transmissions (e.g., over the air
or over the Internet), as well as to the use of online • The exception applies only if the
materials in the context of face-to-face teaching. transmission is made solely for, and—to
the extent technologically feasible—
The TEACH Act revises Section 110(2) in an reception is limited to students enrolled
effort to permit the use of copyrighted materials in the course (e.g., by password access).
in real time and asynchronous digital distance
education on much the same terms as in live The exception is available to an institution only
face-to-face teaching. if it has instituted policies regarding copyright,
provided informational materials to faculty,
The exception applies to any copyrighted students, and relevant staff members that
work other than a work produced or marketed describe and promote compliance with U.S.
primarily for performance or display as part of copyright law, and provides notice to students
“mediated instructional activities” using digital that materials used in connection with the
networking (i.e., materials expressly created for course may be subject to copyright protection.
use during online distance education classes), These institutional policy issues are discussed in
subject to certain limitations: greater detail in Part II.C.
• The exception for performances applies The exception is available in connection with
only to “limited portions” of works other a digital transmission (e.g., an Internet-based
than non-dramatic literary or musical works.
14 Campus Copyright Rights and Responsibilities

course) only if the institution has applied direction of the instructor and analogous to the
technological measures that reasonably type of performance or display that would take
prevent retention of the work in accessible place in a live classroom setting; the instructor
form by the recipients (i.e., on the recipients’ need not be online at the time of the student
computers) for longer than a comparable in- transaction. Mediated instructional activities
person class session, and reasonably prevent do not include other uses of copyrighted works
further unauthorized dissemination of the work. in the course of digital distance education,
In addition, the institution must not interfere including student use of supplemental or
with technological measures used by copyright research materials in digital form, such as
owners to prevent such retention and further electronic reserves and other digital library
dissemination. resources. Moreover, even within the context
of the mediated class experience, the TEACH
The legislative history of the TEACH Act makes Act exception does not apply to the use of
clear that the limitation on retention refers to such works as textbooks, coursepacks, or
retention by the students and does not limit the other material, copies of which are typically
length of time the work may be made available purchased or acquired by students in higher
on the institution’s server. education for their independent use and
retention in connection with the class.
Technologies available today to prevent
retention and further dissemination include The TEACH Act also amended Section 112 of
various digital rights management (DRM) the Copyright Act, which allows institutions to
technologies, and streaming technologies that store material on their servers to enable distance
prevent retention on the receiving computer. education transmissions.

The legislative history, in the Conference This provision applies primarily to digital
Report, describes a class session as generally versions of copyrighted works.
“that period during which a student is logged
on to the server of the institution” making the However, an institution may digitize those
display or performance. It is “likely to vary with portions of an analog version of a work to be
the needs of the student and with the design displayed or performed under Section 110(2)
of the particular course.” A particular class if no digital version of the work is available, or
session is not the entire semester or term, but the if the digital version is subject to technological
materials can remain on the institution’s server protection measures that prevent its use.
for the duration of its use in one or more courses
(e.g., the entire semester or term). The materials Like the other specific exceptions and
“may be accessed by a student each time the limitations to the copyright rights, uses that
student logs on to participate in the particular do not meet the specific limitations of Section
class session of the course in which the display 110(2) may still qualify as fair use.
or performance is made.” See H.R. Rep. No.
107-685 at 231, reprinted in 2002 U.S. Code
Cong. & Ad. News 1183-84.

The “mediated instructional activities” to which


the TEACH Act applies are those that use a
work as an integral part of the class experience,
controlled or supervised by or under the
Campus Copyright Rights and Responsibilities 15

SECTION K a nonprofit educational institution to


EXCEPTIONS AND LIMITATIONS ON THE another nonprofit educational institution
COPYRIGHT RIGHTS—FIRST SALE
or to faculty, staff, and students is not
prohibited by Section 109(b). There also

A
s a general rule, and subject to certain is a specific exception for the lending of
limitations and exceptions, one who computer programs by nonprofit libraries
has acquired ownership of a lawfully under certain conditions.
made copy of a copyrighted work may dispose
of possession of that copy by sale, gift, loan, The first sale doctrine applies to all forms
rental, or any other means of transfer, without of copies of works that can be physically
running afoul of the copyright owner’s right transferred, including copies embedded in such
of public distribution. This doctrine is codified digital formats as CDs and DVDs. The Copyright
in Section 109(a) and is generally known as Office has expressed the view that digital
the “first sale” doctrine because once a copy transmissions of copies are not subject to the
is sold, the copyright owner loses his or her first sale doctrine, although the appropriateness
right to control further distribution of that copy. of application of a first sale doctrine to such
The first sale doctrine is the basis of significant transmissions remains the subject of debate. The
economic activity, such as stores that purchase principal arguments against including a digital
copies of videos and DVDs and then rent the transmission within the first sale doctrine are that
copies, second-hand bookstores that sell copies such an exception would allow reproduction as
of books they have purchased, book owners who well as distribution of the work and, in contrast
donate those books to libraries, and libraries that to physical copies such as a book, digital copies
lend copies of materials that they own. The first can be easily and flawlessly duplicated, thereby
sale doctrine has some limitations: creating the risk that the transmission of a single
copy becomes the redistribution of limitless
• Section 109(d) provides that the first sale copies. However, if and when technological
doctrine does not apply to copies that management systems support the reliable
are obtained by rental, lease, or loan, transmission of a single copy together with the
without acquiring ownership. destruction of the sender’s copy, the current
reservations about digital transmission under the
• Notwithstanding the first sale doctrine, first sale doctrine would seem to be eliminated,
the Act specifically prohibits the rental, and some form of first sale doctrine could then
lease, lending, or similar temporary be implemented for the distribution of a copy of a
disposal of possession of a phonorecord copyrighted work via digital transmission.
or a copy of a computer program for
direct or indirect commercial advantage.
However, this prohibition does not apply SECTION L
to nonprofit educational institutions or EXCEPTIONS AND LIMITATIONS ON THE
nonprofit libraries under certain defined COPYRIGHT RIGHTS—LIBRARIES AND
circumstances. Specifically, the rental, ARCHIVES
lease, or lending of a phonorecord

A
for nonprofit purposes by a nonprofit t the request of libraries and archives,
library or educational institution is Congress enacted a series of specific
not prohibited by Section 109(b). The exceptions to copyright owners’
transfer of possession of a lawfully exclusive rights, as well as a general protection
made copy of a computer program by from liability for unsupervised copying by library
16 Campus Copyright Rights and Responsibilities

users on library premises. See Section 108. of single copies of journal articles or
These specific exceptions are safe harbors, and other parts of collective works.
do not preclude the right of fair use. Depending
on the circumstances, the general right of fair The provision makes clear, however,
use under Section 107 may allow more or less that these limitations do not prevent a
copying and distribution of copyrighted works library or archive from participating
than the specific rights extended by Section 108. in interlibrary loan arrangements, so
The Section 108 exceptions do not supersede long as those arrangements do not have
contractual obligations that may be assumed by as their purpose or effect the receipt
a library when it obtains a copy of a work. The of copies by the requesting library in
Section 108 exceptions are of two types: aggregate quantities that substitute for a
subscription to or purchase of the work.
• Copying for library users
The Conference Report on the 1976
One of the most important provisions Act notes that the National Commission
of Section 108 is the right of libraries on New Technological Uses of
or archives to make for a user Copyrighted Works (CONTU), after
“single copies” of an article or other consulting with interested parties,
contribution to a copyrighted collection developed guidelines that allow a
or periodical, or a copy of a small part library to receive up to five articles
of any other copyrighted work, where in any year from the same journal or
the copy becomes the property of the other collective work published in the
user and the library has no notice that past five years. The guidelines do not
it will be used for a purpose other than address works more than five years old.
private study, scholarship, or research. Guidelines on Photocopying-Interlibrary
This right applies to copies made from Arrangements, H.R. Rep. No. 94-1733
journals or other works in the library’s at 70-73, reprinted in 1976 U.S. Code
own collection, or copies obtained from Cong. & Ad. News 5811-14.
another library by “interlibrary loan.”
• Copying for the library’s collection
An additional right to make a copy of
an entire work, or a substantial part of a In addition, Section 108 extends
work, for a user is extended to libraries specific rights to make three copies of
and archives, provided the library has unpublished works for preservation
determined that a copy of the work purposes, and three copies of published
cannot be obtained at a fair price, the works to replace deteriorated, damaged,
copy becomes the property of the user, lost, or stolen copies, or if the existing
and the copy will be used for private format in which the work is stored has
study, scholarship, or research. become obsolete. The copies may be
digital, provided that they are not made
These rights extend to the isolated and available to the public in that format
unrelated reproduction and distribution outside the premises of the library or
of single copies, but not to “related or archives.
concerted” reproduction of multiple
copies of the same material or the Another provision of Section
“systematic reproduction or distribution” 108 allows a library or archive to
Campus Copyright Rights and Responsibilities 17

exercise substantially broader rights SECTION M


of reproduction and distribution of COPYRIGHT INFRINGEMENT AND APPLICABLE
copyrighted works in the last 20 years LEGAL REMEDIES
of their copyright terms, provided

A
the works concerned do not continue violation, or infringement, of a right
to be subject to normal commercial of a copyright owner occurs when a
exploitation. protected work is used in a manner
that constitutes the exercise of any exclusive
Section 108 establishes conditions that the right of the copyright owner (e.g., reproduction
library must satisfy in order to qualify for the or distribution), but such use is neither (1)
exemptions, as well as establishing certain authorized by the copyright owner, nor (2)
exclusions from the exemptions: within the scope of one of the limitations
applying to the copyright owner’s assertion of
• In order to qualify for the “single copy” that exclusive right.
authorization, a library or archive must
display a warning of copyright at the Generally, violation of the copyright owner’s
place where copy orders are taken and exclusive right requires that the amount of the
on its order form, and the copy of the protected work that is taken (e.g., copied) is
work should contain an appropriate “substantial.” However, substantiality generally
copyright notice. is tested both in terms of the quantity and
quality of what is taken, and the standard used
• Except for the preservation right and by courts is often quite low—that is, a relatively
the right to replace copies that are lost, small amount, measured quantitatively or
stolen, damaged, etc., these rights do qualitatively, may be judged to be substantial.
not apply to a musical work, a pictorial, Copying need not be verbatim; substantial
graphic, or sculptural work, or a motion similarity to expression in the copied work
picture or other audiovisual work can constitute infringement. However, where
(except for illustrations or other adjuncts the similarity involves expression that is not
to works whose copying and distribution original to the author of the copied work, there
is otherwise permitted by Section 108). is no infringement.
Section 108 makes clear that it is not intended to The issue of whether what is taken is substantial
impose liability on libraries or their employees should not be confused with the third factor
for the unsupervised use of reproducing of the fair use doctrine, which requires
equipment on the library’s premises, provided consideration of the amount and substantiality
that the equipment displays a notice that of the portion used. The considerations are
the making of a copy may be subject to the different, and fair use typically permits a greater
copyright law. However, this limitation on quantity of taking than the underlying question
library liability does not extend to a person of whether the amount taken is “substantial”
who makes copies, or requests for copies, in enough to constitute infringement. Thus, if the
excess of what is permitted under the fair use taking is not substantial enough to qualify as
provisions of Section 107. infringement in the first place, then the issue
of fair use would not arise; if the amount taken
is substantial enough to constitute possible
infringement, then a fair use analysis may
18 Campus Copyright Rights and Responsibilities

conclude that the taking was not infringement The U.S. Supreme Court’s decision in the
based on the greater substantiality permitted by Grokster case recently held that the concept
the third factor of the fair use doctrine. of intentional “inducement” could give rise to
liability for one who distributes a product that
There are three types of infringement: direct is capable of both lawful and unlawful uses.
infringement, contributory infringement, and The Court, in a case concerning distributors
vicarious liability for infringement. They are of free software products that allow computer
subject to different requirements: users to share electronic files through peer-to-
peer networks, ruled that “one who distributes
• Direct infringement is the doctrine that a device with the object of promoting its use to
applies to the party that actually carried infringe copyright, as shown by clear expression
out the act that violates the copyright or other affirmative steps taken to foster
owner’s exclusive rights. Often, this infringement, is liable for the resulting acts of
doctrine has been extended to apply infringement by third parties.” Although the
to acts of employees acting within the Court’s decision provided some examples of the
scope of their employment. The doctrine kinds of “expression or other affirmative steps”
is based on “strict liability,” meaning that could provide evidence supporting one
one will be liable whether or not one person’s liability for inducing infringing acts by
knew that the work was copyrighted others, a clear picture of the scope and nature
and whether or not one intended to of this basis for liability will require further
infringe or knew that one’s conduct was development by the federal courts in future
infringing. cases.

• Contributory infringement is the The Copyright Act provides numerous remedies


doctrine that applies to a party against the infringer, including the possibility of
that, with knowledge of an act of substantial monetary liability:
infringement, induced, caused, or
materially contributed to the act of • In any case of infringement, the
infringement. Courts have held that copyright owner may seek temporary
providing significant facilities used and permanent injunctions against
for infringement can count as material continued infringement.
contribution. Different courts have
construed the requisite “knowledge” • In any case of infringement, the
differently, with some requiring actual copyright owner may obtain “actual
knowledge and others finding liability if damages” from the defendant in the
the alleged contributory infringer knew amount of financial losses suffered by
or should have known that the infringing the copyright owner as a result of the
act was occurring. infringement, as well as any profits
made by the defendant as a result of the
• Vicarious liability may be imposed on infringement (to the extent that such
one who obtains a financial benefit from profits are not already taken into account
an act of infringement and has the right in calculating the losses suffered by the
and ability to control the infringing copyright owner).
conduct. Again, courts vary on the nature
of financial benefit and the level of • The copyright owner may seek an order
control that may give rise to liability. impounding articles involved in the
infringement.
Campus Copyright Rights and Responsibilities 19

• If the copyright was registered before the SECTION N


infringement (or within three months of LIMITATIONS ON LIABILITY FOR
publication in the case of infringement INFRINGEMENT—SERVICE PROVIDER
of a published work), the copyright
LIABILITY
owner may obtain reasonable costs and

S
attorneys’ fees in the discretion of the
ection 512, added by the Digital
court. Note that a prevailing defendant
Millennium Copyright Act (DMCA)
may also seek attorneys’ fees that may
in 1998, provides certain limitations
be awarded in the discretion of the court.
on the potential copyright liability of colleges
and universities that provide Internet access
• If the copyright was registered before the
and other digital network services to students,
infringement (or within three months of
faculty, and other third party users of the
publication in the case of infringement
services.
of a published work), the copyright
owner, in lieu of actual damages,
The section precludes any monetary remedies
may seek statutory damages within
and limits the scope of injunctive relief against
a specified range in an amount to be
a service provider if certain conditions are met,
determined by the finder of fact (i.e., the
and the service provider would otherwise be
jury in a jury trial or the judge if there
found liable for copyright infringement as a
is no jury). The range is between $750
result of the conduct of a third-party user of the
and $30,000 per infringed work (not
service provider’s system or network, to the
per infringing act). The amount may be
extent that the service provider:
increased to up to $150,000 per infringed
work in a case of willful infringement, or
• serves as a conduit for the
reduced to not less than $200 per work if
communication (e.g., where the user is
the infringement was truly innocent.
browsing the World Wide Web, receiving
or sending email, or engaging in peer-to-
• There is a special rule for nonprofit
peer file sharing of material on the user’s
educational institutions and libraries
own computer);
which provides for elimination of
statutory damages if the infringing
• automatically caches material on its own
reproduction was undertaken with
servers to facilitate its users’ access to
reasonable grounds for believing that the
off-network materials;
infringement was a fair use. See Section
504(c)(2).
• hosts material that third parties cause to
reside on the service provider’s system
• The Copyright Act provides for criminal
or network (e.g., providing Web page
liability in cases of willful infringement
hosting services); or
for commercial advantage or private
financial gain, or in cases of willful
• provides directories, links, or other
electronic distribution or reproduction of
information location tools that may lead
works with a total retail value of more
to infringing material.
than $1,000. See Section 506.
The conditions that apply to each of the
foregoing activities vary, with protection for the
conduit function being essentially unconditional,
20 Campus Copyright Rights and Responsibilities

and protection for hosting and linking Section 512 makes clear that a service provider
depending on a carefully negotiated “notice and is not obligated to monitor the material on its
takedown” procedure. The notice and takedown system or network.
procedure conditions the liability limitation
on the service provider removing or disabling The section also includes an expedited subpoena
access to allegedly infringing material upon (1) process that allows a copyright owner to seek
the receipt of a compliant “takedown” notice; the identity of an alleged infringer who has been
(2) the acquisition of “actual knowledge” that the subject of a takedown notice. There is an
the material is infringing; or (3) awareness of ongoing dispute about whether the subpoena
facts and circumstances from which infringing process applies only to material residing on
activity is “apparent.” the service provider’s system or extends to the
conduit function. The two federal appellate
Certain copyright owners have been serving courts that have considered the issue have held
“takedown” notices in connection with peer- that the expedited DMCA subpoena provision
to-peer file sharing and other examples of the does not apply to the conduit function.
service provider conduit function. An institution
may choose voluntarily to respond to such Certain of the liability limitations in Section 512
notices. However, the liability limitations of are subject to institutional requirements, which
Section 512 do not require such response. are discussed in greater detail in Part II.D.
Notably:
The Section 512 service provider liability
limitations apply to the transmission, storage, • To qualify for any protection of Section
and caching of material on the institution’s 512, a service provider (including
system as a result of the conduct of third a library or an institution of higher
parties. They do not apply when the institution learning) must adopt, reasonably
itself is acting as the content provider (e.g., on implement, and inform subscribers
departmental home pages or other official pages about a policy that provides for the
of the institution’s Web site). termination in appropriate circumstances
of subscribers and account holders who
However, Section 512 also includes a subsection are repeat copyright infringers.
that addresses the relationship between a
nonprofit institution of higher education and • To qualify for protection against liability
its faculty and graduate students. See Section for material residing on the system
512(e). Specifically, the knowledge or actions or network, a service provider must
of a faculty member or graduate student who designate an agent to receive takedown
is performing a teaching or research function notices, must post information about that
will not be attributed to the institution if certain agent on its Web site, and must provide
conditions are met. See Part II.D. the same information to the Copyright
Office.
Section 512 also protects a service provider
from liability claims by users for removing • To qualify for the special non-attribution
allegedly infringing material if the service rules applicable to institutions of higher
provider takes appropriate steps to notify the education in Section 512(e), the institution
affected user. must provide its users with materials
that accurately describe and promote
compliance with U.S. copyright law.
Campus Copyright Rights and Responsibilities 21

Section 512 only applies if a service provider, SECTION P


under the applicable circumstances, would be SPECIAL CASE—STATE INSTITUTIONS
found liable as an infringer absent the liability

T
limitations. The section explicitly preserves here is currently substantial doubt
other defenses to the claim of infringement (e.g., as to whether public universities, as
fair use). state entities, are subject to liability
for damages under federal copyright, patent,
and trademark law because of the doctrine
SECTION O of sovereign immunity under the Eleventh
TECHNOLOGICAL PROTECTION MEASURES Amendment to the Constitution. They are,
however, subject to injunctive remedies for

C
opyright law was expanded in 1998 infringement.
by the DMCA to include a number
of prohibitions on the circumvention Congress has considered but not enacted
of technological protection measures that are legislation to require states to waive their
applied by copyright owners to protect their sovereign immunity as a condition for being
works. These prohibitions, and the remedies able to use federal intellectual property law
for their violation, are different from those to protect their own intellectual property.
applicable to copyright infringement. The constitutional questions are exceedingly
intricate and complicated. Public universities
Specifically, the law prohibits the act of may wish to consult with their counsel and their
circumventing a technological protection state governments concerning these issues.
measure (e.g., encryption) that effectively
controls access to a copyrighted work.

The law also prohibits the manufacture, sale


or trafficking in devices, services, software,
or components that are primarily designed to
circumvent a technological protection measure
that either (1) controls access to a copyrighted
work, or (2) protects a right of a copyright
owner.

The scope of these prohibitions, and their


relationship to fair use and other copyright
exceptions, has been a continuing source of
controversy and concern.
A S S O C I A T I O N O F A M E R I C A N U N I V E R S I T I E S

Campus Copyright Rights and Responsibilities PART II: INSTITUTIONAL POLICY ISSUES

SECTION A The following sections raise issues that


WHY ADOPT A COPYRIGHT POLICY? institutions may wish to consider in developing
or updating their copyright policies; these

A
s both users and producers of sections provide suggestions only and are not
copyrighted works, colleges and intended to be construed as model elements of
universities rely on copyright and have an institutional copyright policy.
an interest in fostering respect for copyright
and in promoting the availability and use of
copyrighted works for research and education. SECTION B
EDUCATIONAL MATERIALS ABOUT
Two provisions of the Copyright Act are COPYRIGHT LAW
expressly conditioned on the existence of a

T
copyright policy: he distance education exception and
one aspect of the service provider
• under the service provider liability liability limitations also are expressly
limitation discussed in Part I.N, a conditioned on an institution developing and
service provider must adopt, reasonably providing its students and faculty members
implement, and inform subscribers with information that accurately describes and
about a policy that provides for the promotes compliance with copyright law.
termination in appropriate circumstances
of subscribers and account holders who • To qualify for the distance education
are repeat infringers; and (TEACH Act) exception discussed in
Part I.J, an institution must provide
• the distance education exception informational materials about copyright
discussed in Part I.J, is available to law to faculty, students, and relevant
an institution only if it has instituted staff members.
policies regarding copyright.
• Under the service provider liability
Copyright law increasingly is becoming the limitation discussed in Part I.N, an
focus of significant attention in society, and institution of higher education must
consequently, institutions may wish to provide provide all users of its system or network
information about copyright law as part of their with materials that accurately describe
educational activities. and promote compliance with U.S.
copyright law in order to qualify for the
Copyright infringement is unlawful, and the special non-attribution rules of Section
adoption of a copyright policy affords an 512(e).
opportunity to make this point clear to students,
faculty, and staff. The material provided in Part I of this document
easily may be adapted and used as the basis for
Fair use is one of the ways in which copyright those educational materials.
law accommodates First Amendment
protections, and higher education institutions
have an interest in developing copyright policies
that encourage the full exercise of fair use.
24 Campus Copyright Rights and Responsibilities

SECTION C • providing that performances or displays


THE POLICY REQUIREMENTS OF should (absent a determination that a
THE TEACH ACT
given use is, independently, fair use)
be limited to those made by, at the

T
he TEACH Act states only that a direction of, or under the supervision of
condition of the exemption is that the an instructor as an integral part of the
institution “institutes policies regarding analog of a “class session”;
copyright.” The legislative history adds little,
stating that the requirement, together with the • addressing how instructors or the
requirement to provide information, is intended institution will limit, to the extent
to promote an environment of compliance with feasible, access to enrolled students;
the law. The lack of specificity suggests that the legislative history makes clear that
an institution has substantial flexibility in the this is not intended to impose a general
development of a copyright policy to meet the requirement of network security, and
condition of the TEACH Act. The institution identifies systems such as “password
should consider developing policies that address access or other similar measures”;
the issues discussed in this document as the
institution believes appropriate. • addressing how the institution will
apply technological measures that
Among the issues that an institution may want reasonably prevent retention or further
to include in a policy directed to the TEACH dissemination of the performed work;
Act are means of complying with the various the legislative history recognizes
conditions imposed by the TEACH Act itself. that flexibility with respect to these
Thus, the policy may include guidelines or rules: requirements is necessary to accomplish
the pedagogical goals of distance
• limiting the type and, for works other education; and
than nondramatic literary or musical
works, the amount of works that may • addressing whether, to what extent, and
be placed on a server for distance in what manner, if at all, the institution
education (absent a determination will exercise control over the decisions
that a given use is, independently, of faculty in selecting materials for use
fair use). For example, the institution in distance education.
may want to provide that instructors
should not, without permission, (1) use
works produced primarily for digital SECTION D
“classroom” use or works that otherwise THE POLICY REQUIREMENTS OF THE SERVICE
would typically be purchased as a PROVIDER LIABILITY LIMITATION
textbook or part of a coursepack for that

S
class; (2) for other than nondramatic ection 512 specifically requires a service
literary or musical works, use more provider that wishes to rely on the liability
than the appropriate portions of works limitation extended by that section’s
covered by the exemption; (3) digitize provisions to adopt, reasonably implement, and
analog versions of works unless the inform subscribers about a policy that provides
conditions for such digitization are for the termination in appropriate circumstances
satisfied; or (4) use source material of subscribers and account holders who are
other than lawfully made copies; repeat copyright infringers.
Campus Copyright Rights and Responsibilities 25

The legislative history to the DMCA, which • the factors that will be taken into
embodied the full agreement among the parties account in determining what sanctions
that negotiated Section 512, makes clear that are appropriate under the circumstances
Congress contemplated substantial flexibility in (e.g., whether the infringement was
the design of such a policy. undertaken for commercial or malicious
purposes, the number of times the
The Senate Report recognizes that “there person infringed, whether the person
are different degrees of online copyright has previously been warned under the
infringement, from the inadvertent to [sic] the institution’s policy); and
noncommercial, to the willful and commercial.”
See S. Rep. No. 105-190 at 52. • the process that will be invoked to make
the foregoing determinations.
Further, the Report makes clear that the
provision is not intended to suggest that a In order to ensure that the non-attribution
service provider “must investigate possible provisions of Section 512(e) are available, the
infringements, monitor its service, or make institution may want to include policies:
difficult judgments as to whether conduct is or
is not infringing.” As discussed in connection • that instruct a faculty member or
with exceptions and limitations, there are many graduate student not to provide online
unauthorized uses of copyrighted works that are access (other than as authorized by
not infringing. the TEACH Act or the copyright
owner, or permitted as a fair use) to
In short, it would be reasonable to adopt a policy instructional materials that were required
directed to actual repeated infringement (not or recommended reading for a course
merely a copyright owner’s allegations), where taught at the institution by the faculty
appropriate circumstances (e.g., particularly member or graduate student within the
harm or willfulness) exist to justify termination. prior three-year period; and

The legislative history indicates that in • that address circumstances where the
determining—for purposes of making a decision institution has received more than two
about terminating a subscriber or account valid takedown notices pertaining to
holder—whether infringement has occurred, a graduate student or faculty member
it would be reasonable for an institution to during the preceding three-year period.
conclude that the requirement is limited to
adjudicated or other clear cases of infringement In addition to the required policy, an institution
that have been subjected to full internal review. may consider it advisable to adopt a policy to
address additional service provider liability
Such a policy may include provisions regarding: issues raised by Section 512, such as:

• the showing that is needed before a • who will serve as “designated agent” for
person will be deemed an infringer or the institution, and what system will be
a repeat infringer (e.g., adjudication of in place to provide the name, address,
liability, unrebutted takedown notices); telephone number, and email address of
the agent to the Copyright Office and to
• the notifications and opportunity for post that information on the institution’s
response that will be provided to a Web site;
person deemed to be a repeat infringer;
26 Campus Copyright Rights and Responsibilities

• how a designated agent should respond SECTION E


to takedown notices, including both OTHER POTENTIAL POLICY ISSUES—
notices for which takedown is necessary FACULTY OWNERSHIP OF COPYRIGHTS
to preserve the liability limitation (e.g.,

U
for compliant notices relating to material nder the “work made for hire”
residing on Web pages hosted on the doctrine, copyrighted works created by
institution’s servers) and for those where an employee acting within the scope
it is not (e.g., for conduit activities, such of his or her employment are owned by the
as peer-to-peer file sharing by users); employer. However, institutions typically take
the position—as a matter of academic tradition,
• when an institution should consider itself institutional policy, or both—that a faculty
to have “actual knowledge” or awareness member owns the copyright in textbooks,
of facts and circumstances from which journal articles, and other scholarly works
infringing activity is apparent; he or she writes for publication. New digital
media present a new set of ownership issues
• what systems the institution will have distinct from the cases of faculty ownership
in place promptly to provide notice to of traditional scholarly publications and
a user when it responds to a takedown institutional ownership of unambiguous works
notice from a copyright owner by for hire. Increasingly, new digital media involve
removing material residing on its system significant investments of intellectual, financial,
or network placed by that user, and what and physical resources from both faculty
systems the institution will have in place members and the institution. In such cases,
to respond to “counter notices” asking many institutions are establishing policies that
for the material to be replaced and notice decide issues of ownership and revenue based
to be given to the copyright owner that on considerations of academic mission and the
the material was lawfully on the system relative contributions of the parties.
or network;
Institutions should consider how to resolve these
• how a designated agent should respond to potentially conflicting strains and to address
non-compliant takedown notices (e.g., in issues such as rights in new media, the effect of
the case where the notice contains some institution support for the work, and the status
of the required information and Section of work done specifically at the request of the
512 withholds liability limitations unless institution.
the service provider contacts the person
providing the notice); and In the traditional publication process, faculty
members usually sign contracts that transfer
• how the institution should respond some or all of the exclusive rights to their work
to subpoenas issued pursuant to the to publishers. Electronic communication and the
expedited, ex parte process in Section Internet provide new opportunities for faster,
512(h) (including the institution’s broader, and more economical dissemination
position on the scope of the Section of research and scholarship; and authors,
512(h) subpoena authority). publishers, and universities are exploring
new arrangements that substantially improve
scholarly communication. To facilitate these
developments, some universities are discussing
with faculty and publishers ways to retain
Campus Copyright Rights and Responsibilities 27

the rights to use faculty members’ own work SECTION G


in the classroom, in their research, in future OTHER POTENTIAL POLICY ISSUES—
publications, and to post their work on publicly COURSEPACKS
accessible Web sites.

C
oursepacks have evolved over time,
from essentially ad hoc collections of
SECTION F short readings designed to supplement
OTHER POTENTIAL POLICY ISSUES—FAIR the assigned text to pre-planned collections of
USE AND THE CLASSROOM GUIDELINES book chapters, articles, exercises, and other
copyrighted and instructor-created materials

A
s discussed in Part I.G, determination that form the core assigned reading for a class.
of whether a given use is fair use When does the reproduction and distribution of
depends on a careful consideration such material constitute fair use? When does it
of four factors. Faculty members making the require permission for the use of the material?
decision to use copyrighted materials may not
always have all of the relevant information. Two court cases have held that the unauthorized
At the same time, the law provides substantial production and sale of coursepacks containing
protection (e.g., remission of statutory damages) copyrighted works by commercial photocopy
in favor of faculty members who believe and services constitutes copyright infringement and
have reasonable grounds for believing that their not fair use. In these cases, the coursepacks
conduct is fair use. An institution may wish were pre-planned collections of substantial
to consider whether it is best to leave fair use portions of copyrighted works constituting
decisions up to individual faculty members or assigned reading. In one case, the packs formed
whether it is possible to provide centralized “an entire semester’s resources.” One important
guidance or advice regarding fair use issues. factor in these decisions was the commercial
nature of the copy service. No court has yet
Alternatively, an institution may decide it is considered the extent to which the institution
appropriate to identify certain activities that it may be liable for the copying of coursepacks
concludes would clearly not qualify as fair use. by commercial centers, or whether possible
As fair use requires consideration of complex institutional liability would be affected if the
factors, the institution may wish to obtain copying is done by an arm of the institution
legal advice from counsel that specializes in rather than a commercial entity.
copyright law.
Some argue that the reproduction and
Similarly, an institution may wish to adopt distribution of a coursepack cannot be fair
policies related to the Classroom Guidelines use when the selections are pre-planned and
discussed in Part I.H. Such policies might advise constitute the primary assigned reading.
faculty members of conduct permitted under Although ad hoc supplemental selections are
the guidelines or might provide procedures for more likely to be considered fair use, others
evaluating conduct that exceeds the guidelines. believe analysis of the four fair use factors could
still lead to a finding of fair use even for primary
Universities may wish to develop fair use policies assigned readings.
that accommodate the inherent ambiguity and
situation-specific nature of fair use. Similarly, no court has yet addressed the issue
of “electronic coursepacks.” Some argue
that electronic distribution of material as
28 Campus Copyright Rights and Responsibilities

assigned readings creates a greater risk to the are to be made available, whether the institution
market for a work in light of the possibility has a license to the electronic full-text of the
of further electronic dissemination. However, material, and whether it is possible to apply
institutions may have procedures to limit technological protections to materials that are to
the distribution of electronic coursepacks be distributed electronically.
through password-controlled access or other
technological mechanisms. To the extent that
such mechanisms offset the potential risks, the SECTION H
pedagogical benefits of electronic coursepacks OTHER POTENTIAL POLICY ISSUES—
should argue for their use, consistent with
RESERVES AND ELECTRONIC RESERVES
existing requirements for managing traditional

R
coursepacks.
eserve operations in libraries developed
as a means for faculty to provide
A related practice is the posting by faculty
students with material intended as
of assigned materials for a course, either on
supplemental reading, or with access to
faculty-generated Web sites or using course
important materials not included in the textbook
management software. The posted content
but of such limited extent that purchase of
often is not monitored or controlled by the
the entire additional work was not warranted.
institution, but may create liability for the
Print reserves usually include one or a few
institution. Although making such material
copies of books (which may include a copy of
available without permission is not necessarily
the textbook or coursepack used in the class
infringement, the considerations relevant to
as a backup) and one or a few photocopies of
coursepacks and electronic coursepacks are
articles, along with copies of previous exams,
likely to apply. Some concerns may be reduced
syllabi, and other materials. In general, materials
by encouraging faculty members to work
reproduced for reserve are owned by the library
through the institution’s library, which may have
or the faculty member. Students are allowed to
established or can establish authorized access
use materials for a limited period of time and
to assigned course materials, or by encouraging
often photocopy the material for later reading.
faculty members to post links to copyrighted
material on the copyright owner’s Web site or
Most academic libraries have developed
other Web sites authorized by the copyright
local policies for reserves. Some academic
owner. The discussion of service provider
libraries follow the 1982 American Library
liability limitations in Part I.N, also may be
Association Model Policy Concerning College
relevant to the issue of the institution’s risk.
and University Photocopying for Classroom,
Research and Library Reserve Use. This policy
An institution may conclude that it is
treats reserves as an extension of classroom
appropriate to establish policies relating to
use and is based on the Classroom Guidelines.
coursepacks and faculty posting of assigned
Although the policy was neither negotiated nor
material, to minimize potential risk and to
agreed upon by publishers, libraries have used
provide norms for copyright compliance.
it for over twenty years to guide their reserve
Factors that an institution may wish to address
operations. Other academic libraries, however,
in such a policy could include the amount of
base their reserve policies on a direct analysis
material to be copied and how it relates to
of the four fair use factors rather than on the
the source work as a whole, who is to do the
Classroom Guidelines’ generic interpretation of
copying, whether permissions are practical to
the fair use exemption. An institution may wish
obtain, the period of time for which materials
Campus Copyright Rights and Responsibilities 29

to consider including a discussion of library


reserve policies in its copyright policy.

Many libraries now also offer electronic


reserves, based on fair use principles,
adaptations of the 1982 ALA Model Policy, or
other policies or guidelines. The development of
electronic reserve systems offers the opportunity
to provide access to course materials in a
more effective way, but also creates some
additional risk of unauthorized reproduction
and distribution. Materials that are digitized for
electronic reserve typically are owned by the
library or faculty member. Students may access
electronic reserve materials from anywhere
they have Internet access and often are able to
download and print copies for later use.

Many libraries limit access to electronic reserve


materials through the use of Internet Protocol
(IP) or password authentication.

Libraries may also link to licensed electronic


works where such activity is not prohibited by
the license.

There is disagreement over the definition and


appropriate use of electronic reserves. To the
extent that electronic reserves are extensions
of traditional print reserves, providing
access to important excerpted materials or
supplementary material, their use should be
compliant with copyright law and not raise
concerns, particularly if distribution is limited
through password-controlled access or other
technological mechanisms. However, to the
extent that electronic reserves exceed the
purpose and scope of print reserves and have
functionally become electronic coursepacks,
they are likely to raise all of the issues and
concerns discussed in Part II.G.
30 Campus Copyright Rights and Responsibilities

CONCLUSION

T
he groups that produced this document
have sought to describe their common
understanding of the basic aspects of
copyright law and its application to academic
practice. They do not agree on all issues and
have tried in those cases to convey the differing
perspectives that institutions might take into
consideration in developing or refining their
own policies. Inevitably, disagreements will
arise concerning the use of copyrighted works,
but if institutions make concerted efforts to
incorporate the principles of copyright law into
their campus policies, and affirmatively educate
their faculty, students, and staff about copyright
rights and responsibilities as defined by those
policies, such disagreements will likely be
minimized and can be resolved through good-
faith discussions. We hope that this document
will assist institutions in such efforts to develop
or refine their copyright policies.
Sponsored by:
Association of American Universities
Association of American University Presses
Association of Research Libraries
Association of American Publishers