Important Changes in the Law...

Legislation has resulted in broad changes and exemptions that affect us, particularly in academe. The University, as an online service provider (OSP), has increased safe harbors, and individuals (not employers) now have primary liabilities. Additionally, the use of contracts and markets for licensing is increasing, as are the built in technical protections of licensed works (copyright protection systems, TPM and DRM, digital rights management systems.) Unauthorized use of copyrighted works is more prominent, visible, and targeted — on the internet, no place is too small to be noticed.

Correspondingly, infringement penalties are significantly higher, now including civil as well as criminal penalties:

• Penalites are up to $150,000 per item
• Civil and criminal charges
• Statutory damages
• Actual damages
• Attorney fees
• Impounding/destruction of copy
• Institution may be named as contributory or accessory

Besides violating others' rights and federal law, infringements increase personal as well as institutional liability. Moreover, infringing behaviors contradict the academic mission of encouraging scholarship and teaching respect for others' works. Each member of the University community is accountable for copyright compliance.

Changes to Copyright Legislation that Affect You...

• Sony Bono Copyright Term Extension Act
  • Lengthens terms of copyright protections
  • Use the public domain chart to determine protection coverage
• DMCA, Digital Millennium Copyright Act (1998) Sect. 1201
  • Bans circumvention of encryption devices
  • Defines the university as an online service provider (OSP) and sets take-down procedures for infringement claims
  • Significant liabilities for individuals
  • Triennial monitoring and comment seeking for proof of adverse effects, so that changes to the law can be considered and made
  • Latest review period ended 12/1/2005, with comment review/replies due 2/2/2006 Read comments at http://www.copyright.gov/1201/comment_forms/index.html
• TEACH ACT (2002) for distance education
  • Revises Sect. 110 (2), adds Sect. 112(f)
  • Expands, defines digital rights for distance education
  • Digital uses are now closer to, but not the same, as uses for face to face exemptions
  • Significant requirements of institutions and individuals in order to claim the exemption
  • Allows "reasonable and limited portions" for transmissions of works
  • Not intended for digital posting of reading materials, reserve-type assignments, or items to be used out of the class
  • Reinforces the importance of the fair use doctrine
  • Allows for digitization of analog materials under specific conditions

DMCA and TEACH, in particular, have rigorous requirements associated with them, both for compliance as well as in how exemptions can be used. The biggest change for universities is the requirement for institutions as OSPs to have a copyright policy in place, to have a named agent to receive and act upon infringement claims, and to engage in copyright awareness. These requirements provide new safe harbors for institutions while also diminishing institutional liabilities.

It is now harder for individuals to claim accidental unauthorized use or use a simple "good faith" defense to an infringement claim. This site, and the CaseLearns introductory sessions on copyright, are things that can support your claim and intent of educated copyright usage. More information about the DMCA and TEACH are available on our web resources page.