Copyright Synopsis

 

Current copyright covers any work of creative expression fixed in a tangible medium, for 70 yrs for an individual copyright, or 95 yrs for corporate copyright.

What about fair use?
Though there is significant debate on the issue, recent judicial decisions have held that the fair use defenses under §107 of the Copyright Act do not apply to the DMCA (Digital Millennium Copyright Act). A significant policy debate continues as to whether this is in the public’s interest, but under present law, it is not wise to assume that one can violate the DMCA for a fair use purpose. Consequently, at present, one cannot circumvent digital copy protections, as prohibited by the DMCA, in order to access a copyrighted work for a fair use purpose.

Exceptions
There are some exceptions to the provisions of the DMCA, which allow, for example, circumvention of copyright protections in specific situations or for specific purposes. It should be noted at the outset, however, that such exceptions are limited in scope and one would be wise to reference the DMCA directly or consult an attorney to ensure that the exceptions apply to your intended use. Some examples of exclusions from liability that are included in the DMCA are:

Library or educational use
Law enforcement or governmental use
Reverse engineering
Analog tape copying (pertaining to some VHS/Beta videotapes)

Fair purpose, fair use?
Maybe. This question comes up a lot and it arises from a casual reading of the first sentence of the fair use provision in which several examples of purposes of use are listed. This often yields an interpretation that using any copyrighted work for the purpose of teaching or research is a fair use. This is not correct. The purpose of the use is one factor for consideration in determining whether or not a use is a fair use, but this is not the only consideration. Some educational uses of copyrighted works are fair uses, and some uses are not.

Is your use fair?
Members of the academic community rely on Section 107 for much of what they use for internal educational purposes. But as we move to educational models where course materials are distributed over the Internet or broadcast on educational television, fair use may no longer apply so broadly. Educators and the institutions they work for are held to higher standards if they wish to use copyrighted materials without permission (see the TEACH Act of 2002 for more information). In considering whether fair use is appropriate for your purpose, you should carefully consider how your use of copyrightable materials owned by others will impact an existing or potential market for the work, even if the work is used for non-commercial, educational purposes. Reliance on fair use to incorporate the works of others in multimedia or digital content to be commercialized or distributed broadly may not be appropriate. For assistance on evaluating whether or not fair use applies to your project, contact the Copyright Information Officer.

 

What additional permissions does the TEACH Act grant?

The TEACH Act only modifies previous copyright law in certain specific instances. It does not in any way modify the previous standards for “fair use” of copyrighted materials.

Specifically the TEACH Act:


Permits the display and performance of nearly all types of works
Removes the previous restriction that content must be transmitted to a classroom, so now there is no restriction on a recipient’s location
Permits the retention of content and student access for the length of the “class session”
Permits the copying and storage of materials when necessary for digital transmission to students
Permits the digitization of analog works if they are to be used for a limited time and are not already available through another means to the institution

What new requirements are established under the TEACH Act?

To be in compliance, each institution must:


“Institute policies regarding copyright” (e.g. establish standards for employees and students)
Provide information materials about copyright to students, faculty, and staff
Provide notice to students when “materials… may be subject to copyright protection”
Limit the transmission of educational content to enrolled students
Prevent the storage of materials where that they are accessible to anyone besides enrolled students
Prevent the retention of materials by students for periods longer than the “class session”
Prevent the dissemination of materials