Copyright and Higher Education:
Announcement of Recent Development

New Copyright Legislation Directly Affects Teaching and Research
Congress Enacts the Digital Millennium Copyright Act

Copyright Management Center
Indiana University

Kenneth D. Crews,
Samuel R. Rosen II Professor of Law
Associate Dean of the Faculties for Copyright Management
Indiana University-Purdue University Indianapolis
530 West New York Street
Indianapolis, Indiana 46202-3225
Voice: 317-274-4400 Fax: 317-278-3326

http://www.copyright.iupui.edu

In the waning days of the 105th Congress, both the Senate and the House of Representatives overwhelmingly accepted a final version of the Digital Millennium Copyright Act (DMCA); the President signed it into law on October 28, 1998. The DMCA is lengthy and complex legislation that could revise the terms on which faculty, librarians, students, and staff may use email, websites, and other technology at the university. The new law could alter fundamental activities such as library services, research, website development, distance education, and Internet access. Much of this legislation has been highly controversial in academic circles. Many educators had sought to prevent passage of the DMCA or had argued for revising many of its provisions to better foster innovative teaching and research. Some of those efforts were successful, leaving the final bill more acceptable to higher education than it might otherwise have been. In the final analysis, the DMCA affords some benefits for teaching and research, but overall it imposes enormous challenges for higher education at Indiana University and throughout the United States.

This report summarizes the most salient provisions of the DMCA affecting higher education, and suggests how the Act may require changes in common university practices. The Act is divided into "titles," and the organization of this summary reflects those title numbers.

Title I: WIPO Copyright Treaties Implementation

1. New Prohibitions on Using Copyrighted Works. This provision prohibits anyone from circumventing a "technological measure" that controls access to copyrighted works and prohibits removal of "copyright management information" from any work under many circumstances. For example, any action that bypasses computer restrictions on access to databases could become a violation of federal law. Moreover, removing a copyright notice or removing the names of authors from any work also could be a violation if the removal concealed or allowed an infringement of copyright to that work. Fundamentally, these provisions allow copyright owners to impose technological controls and other restrictions on the use of their works, and in the process, to constrain the use of materials for research and teaching in a manner more restrictive than may be established under existing copyright law. The copyright owner could conceivably impose conditions or fees for each use of any "technologically protected" works acquired by the Copyright Management Center or others in the university community.

2. Exceptions for the Benefit of Education and Libraries. These new restrictions are subject to several complex exceptions, many of which are specifically for the benefit of higher education. First, the prohibition on circumventing technological restrictions does not take effect for two years. Second, once taking effect, the restrictions may not apply to particular classes of works and to particular persons, if the restrictions would "adversely affect" the ability to make "noninfringing uses" of those works, as determined by the U.S. Copyright Office. Further, libraries will be allowed to circumvent protections if they are reviewing the work in good faith for purposes of determining whether to purchase it. Moreover, the DMCA specifies that nothing in it will affect rights of fair use. Thus, while this new law imposes a heightened responsibility on educators and librarians to respect the rights of copyright owners, it would, in an awkward twist, allow breaking restrictive codes that may block otherwise lawful uses of copyrighted works. In order to implement such exceptions, individuals may need to review and determine the appropriateness of potentially technical activity; in order to manage the implications of this new law, the university may need to negotiate more aggressively with copyright owners to obtain more workable terms and fewer restrictions on protected materials.

3. Three-Year Review of the Law. During the initial two years after enactment, and every three years thereafter, the Librarian of Congress, upon recommendation of the Register of Copyrights, is required to conduct proceedings to examine and review the effect of the restrictions on the availability and use of copyrighted works, especially for education and libraries. These reviews are an opportunity for the university to collect and present data and examples of these effects; they could also be the foundation of a major research study that could have national implications.

4. Encryption Research and Reverse Engineering. Researchers in these areas often need to circumvent technological controls in order to reverse engineer software or to undertake encryption research for the purpose of testing and improving the effectiveness of such controls. The DMCA allows continuance of those activities, but only under tightly defined circumstances. Accordingly, the university may need to monitor the reverse engineering of software, perhaps by prior approval from University Information Technology Services. The university may also need to subject any encryption research to advance review and approval, perhaps through the Office of Research and Sponsored Programs in a manner similar to current review of human subjects studies.

Title II: Online Service Provider Liability

Reduced Risk of Infringement Liability for University Computer Networks. In an important development for all universities that provide Internet access, the DMCA potentially eliminates some risks of copyright infringement liability for an online-service provider ("OSP"), subject to numerous conditions specified in the Act. An OSP is defined broadly as "an entity offering the transmission, routing, or providing of connections for digital online communications." Indiana University routinely offers these services to faculty, librarians, staff, and the broader university community. Possible infringements may occur when a user of the network or system transmits copyrighted works, caches works in computer memory, includes a work on a website, or possibly even links to an infringing work on another site. The university may be able to escape liability for infringements committed by faculty and other users, generally if the university is acting solely as a conduit for the transmission of information. The liability, however, remains with the individual who committed the infringement.

The DMCA might provide a welcome degree of legal certainty about the university’s potential OSP liability, but that benefit comes at a significant price. The new law requires implementation of numerous operational procedures that, if not carefully applied and monitored, could sharply limit the use of technologies for teaching and research, and that could raise serious problems of academic freedom and appropriate oversight of faculty activities and discipline for malfeasance.

In general, the university may escape liability upon meeting elaborate, technical conditions related to the structure of the network system. In addition, the university must meet numerous procedural conditions, such as the following:

• Designating a university agent who would receive notifications of claimed infringements submitted by third parties. The U.S. Copyright Office would record this information and provide a publicly available directory of such agents, assessing a fee for this service.
• Implementing, administering, and tracking notifications of claimed infringements committed by users of the system and expeditiously removing or disabling access to material.
• Adopting a policy and informing subscribers and account holders of the policy that would provide for termination of service if that subscriber or account holder repeatedly infringes the copyrights of third parties.
• Removing or disabling access to materials if the university obtains knowledge of infringing activity or becomes aware of facts that suggest infringement.
• Adhering to numerous and extensive technical requirements for the storage and transmission of the infringing materials and all materials that may be communicated on the OSP’s system or network.
  

Under well-established law, an employer is ordinarily likely to be liable for the unlawful activities of employees acting within their duties at the workplace. Thus, if the university provides email and website services to faculty members for their teaching and research, the university may not be acting as a "mere conduit" for the communication, as would a typical OSP. Instead, the university may be liable as would any other employer. The DMCA extends the OSP protection to the university, even in the context of faculty activities, but subject to additional conditions:

• The OSP is a public or nonprofit educational institution, such as Indiana University.
• The claimed infringements are made by a "faculty member or graduate student who is an employee" of the university and who is "performing a teaching or research function."
• The infringing activities do not involve providing online access to "required or recommended" instructional materials.
• The university has not received more than two formal notices of claimed infringement during the preceding three years with respect to that faculty member or graduate student. While the statute disqualifies notices that make "intentionally" false claims, the law does not deal with the problem of notices that may inadvertently prove to be false, incorrect, or otherwise not claiming an actual infringement due to fair use or other legal exception.
• The university provides "all users of its system or network" information about copyright, and that information must "accurately describe, and promote compliance with, the laws of the United States relating to copyright."

In exchange for meeting these conditions, the university receives limited protection. It is protected from liability arising only from the copyright infringements, but not arising from other legal claims that may even arise from the same activity, such as breach of contract, trademark infringement, or defamation.

Title IVB: Additional Provisions of Importance to the University

1. Possible Revision of the Law for Distance Education. The DMCA charges the Copyright Office with the duty to recommend to Congress any changes in the law with respect to the use of copyrighted works in distance education. Given the growth of these activities at IU, this provision is of tremendous importance. Existing "distance-education" law, Section 110(2) of the Copyright Act, sets sharp restrictions on the use of materials in distance education. The potential magnitude of the Copyright Office study is enormous, because "distance education" today encompasses multiple forms of transmission, from television to Websites, and includes the vast range of copyrighted materials, from text to software, that enhance the educational experience. This DMCA calls into consideration the teaching content permitted in distance education, the likely need for consistent controls on access and delivery, and the availability of licensing for the use of copyrighted works. Despite this broad scope, however, the Copyright Office is required to report its findings and recommendations to Congress in April 1999. Those findings and recommendations will likely have momentous consequences for IU and all colleges and universities. The process of review and recommendation, however, gives IU an opportunity to participate in those recommendations and to express its concerns about this issue to the Copyright Office and to members of Congress. The Copyright Management Center, in coordination with the Indiana Partnership for Statewide Education and the Indiana Commission for Higher Education, is taking immediate steps to address these issues. The CMC is organizing a meeting of Indiana’s public and private institutions of higher education, to be held on January 21, 1999, for the purpose of gathering data with respect to distance education and preparing a report for the U.S. Copyright Office and Indiana’s delegation to Congress.

2. Copies of Transmissions. Notwithstanding all of the various limits on the use of materials in transmissions, the DMCA sets new conditions and restrictions under which the university may be able to make copies of our own transmissions made for distance education, public television, and other purposes.

3. Library Copying and Preservation. The amendments to Section 108 of the Copyright Act offer good and bad news for libraries. First, they clarify and assure that preservation copies of unique or deteriorating works may be made in digital formats; however, the digital version may be used only on the library premises. Second, they allow the library to copy works if the works are currently in formats that have become technologically obsolete. Finally, the amendments address a long-standing controversy in Section 108 by specifying that all copies made by the library under Section 108 must include the formal copyright notice, if available, or a specified statement about the applicability of copyright to the work. The Copyright Management Center has circulated to IU libraries detailed summaries of these developments. Those summaries are available on the CMC website, at the address noted above.

This document was prepared for the Indiana University community by the Copyright Management Center. It is the work of Dwayne Buttler, Coordinator of the CMC; Noemi Rivera-Morales, doctoral student in the IU School of Library and Information Science; and Prof. Kenneth Crews.

This document is for information only and is not legal advice. It is the work of the CMC and does not necessarily reflect the official policy of Indiana University.

Return to CMC's US Copyright Statutes Page

Revised: December 21, 1998

Copyright © 2002-2006 Indiana University