Office of Copyright: Special Topics

The Technology Education And Copyright Harmonization (TEACH) Act is an extension of the exemptions for not-for-profit educational institutions to include uses associated with internet technology and distance learning. In short, the following actions are allowed under the TEACH Act:

• Display (showing of a copy) of any work in an amount analogous to a physical classroom setting.
• Performance of entire non-dramatic literary works.
• Performance of entire non-dramatic musical works.
• Performance of “reasonable and limited” portions of other types of work (other than non-dramatic literary or musical work) EXCEPT digital educational works.
• Distance education students may receive transmissions at any location.
• Retention of content and distant student access for the length of a “class session.”
• Copying and storage for a limited time or necessary for digital transmission to students.
• Digitization of portions of analog works if no digital version is available or if digital version is not in an accessible form.

The work must NOT be:

• Part of a work marketed specifically for online education.
• Already available through alternative sources in a digital format.
• Unlawfully or suspected unlawfully made copies of works covered by U.S. Copyright Law.
• The conversion of print or other analog versions of works, such as textbooks or coursepacks, into digital formats.
• Ancillary works that might be viewed or listened to outside of class.
• Over the limits permitted as a fair use.

The “first sale” doctrine provides that once you buy a copy of a copyrighted work, you may do anything that re-publishes the work. You can re-sell it, give it as gift, or even rent it. The copyright owner cannot prevent you from doing this, nor is the copyright owner entitled to any of the money you might receive.

There are, of course, exceptions to the doctrine. They exist in two areas.

1. Phonorecords (items that reproduce sound only) may not be rented, but may be resold.
2. Computer programs may not be rented if they can be copied during their normal course of operation. Computer programs may be resold.

Neither of these exceptions apply to non-profit lending by a non-profit library or non-profit educational institution

One of the exclusive rights retained by copyright owners is the public performance of copyrighted works. A performance is public when the performance takes place in a venue which is either accessible to the public, or where people beyond one’s family or friends may gather. Watching a DVD in your dorm room with your friends is not a public performance. Taking this same DVD and showing it in the common area of the dorm or in one of NSU’s conference rooms is a public performance, and must be licensed. Performance of the same DVD in a face-to-face teaching session in a classroom, is a public performance, but is specifically exempt under the copyright law.

With regards to music, NSU has entered into license agreements with the three major performing rights organizations that permit virtually any kind of performance, in any setting, by NSU faculty or students. Included in this are live concerts, DJ performances, and the campus radio and television operations. Not included are performances of musicals and operas, or any performance by internet streaming.

Photographs and images present a particularly thorny problem in the internet age. The ease with which a photograph may be copied and retransmitted means that the image may be several times removed from the photographer that is the source of the photograph. The lack of copyright notice does not mean that the work is in the public domain. The copyright act does not require that copyright notice be placed on a work, and though illegal, a prior copier may have removed the copyright notice, watermark or other restrictive copyright management tools.

If the image in question was published or registered for copyright before 1923, then it can be assumed to be in the public domain. If the image is the product of the United States Government, such as images taken by NASA, then the image also lacks copyright protection and may be freely used. Otherwise, you should assume that the photograph is protected by copyright. An index of public domain and royalty-free images can be found here.

Even if protected by copyright, certain uses of the image may be “fair use” for which permission is not required. Bear in mind that fair use is a complex concept that is constantly evolving.

The Digital Millennium Copyright Act (DMCA) provides two major changes to the Copyright Act. The first is that it provides “safe harbor” from liability for web sites that allow third parties to post information on the site, such as YouTube. The second is that it prohibits the circumvention of technical measures meant to control access to a copyrighted work, the so called “anti-hacking” provisions.

In order to qualify for “safe harbor” protections, the following procedures must be followed:

1. The website must have a “designated agent” to receive take-down notices. The identity and contact information for this person must be revealed in a filing made with the Copyright Office. Failure to do this eliminates the safe harbor provisions regardless if the other requirements are met.
2. The website must not have actual or implied knowledge of the presence of infringing material on their website, and when informed, promptly removes such material.
3. The complaining copyright holder must file with the designated agent a “take-down” notice, which identifies:
   1. The identity of the copyrighted work claimed to be infringed,
   2. The identity of the work claimed to be infringing, and information sufficient for the website to locate the material,
   3. Contact information for the complaining party,
   4. A statement by the complaining party that the information is accurate, and
   5. An electronic signature of the copyright owner or their authorized agent.
4. Once the website receives a take-down notice, as long as the notice is compliant, it must remove or disable access to the material. The website is not supposed to judge the take-down notice on the merits of the alleged infringement; for example, if the website believes that the use falls under “fair use.” The statute does not provide for ”judgment calls” on behalf of the website, even though certain website hosts have acted as if they have such discretion. The website’s only recourse under the copyright law in the face of a compliant notice is to take the material down.
5. If the person or business believes that the material is not infringing and should not have been taken down, they may file a “counter-notice.” The contents of the counter-notice must include:
   1. Identification of the material alleged to have been removed wrongfully,
   2. A statement under penalties of perjury (this means it’s the same as if you were on the witness stand in Court and have sworn to tell the truth) that the person or business has a good faith belief that the material was taken down wrongfully,
   3. The name, address and telephone number of the person making the declaration,
   4. A consent to personal jurisdiction in the Federal District Court where the person or business is located for purposes of being served with a copyright infringement lawsuit, or
   5. If the person or business is located outside the United States, a consent to personal jurisdiction anywhere that the service provider is located, and
   6. That the person or business making the counter notice agrees to accept service of process.
6. If the counter-notice is sufficient, then the service provider must put back the material taken down within 10 to 14 business days, unless the original complainant has notified the service provider that a copyright infringement lawsuit has been filed.

The DMCA anti-circumvention provisions are as follows:

1. Prohibits circumvention (hacking) of any technological measure designed to control access to the work, such as a password, or dongle. Also prohibited are hacks that circumvent a “protection measure” such as copyguarding or encryption.
2. Prohibits the distribution of software or other material designed to hack the technological measures designed to control access. Such hacks are judged on:
   1. Primarily designed as a hack,
   2. Have a limited commercial use, other than a hack, or
   3. Is marketed as a hack.
3. Contrary to what some commentators have said, the provisions regarding the circumvention measures do not apply when the circumvention is performed in what otherwise would be a fair use of the copyrighted material with additional exemptions for not-for-profit libraries and educational institutions.

Sharing files by Bit Torrent or other peer to peer (P2P) file sharing applications is not, in and of itself, copyright infringement, if you have permission, or the work is in the public domain. However, sharing copyrighted works without permission via P2P applications is absolutely illegal and a violation of NSU’s Acceptable Use Policy. File sharing copyrighted works via P2P applications over NSU’s network not only exposes NSU to potential liability, but many of these files contain viruses and malware, which will harm NSU’s network.