RE: Copyright, for-profit educational institutions, and distance education

[Kevin Smith <kevin.l.smith@xxxxxxxx>]

You are clearly correct that the TEACH Act is limited to non-profit
institutions and is unlikely to be available to the University of Phoenix or
other for-profit institutions.  And I am very skeptical that there would be a
way to structure the teaching so that it could qualify as non-profit, within
the structure of the for-profit institution (your option 1).

Option 2 -- paying for permission either on a case-by-case basis or under a
blanket license -- seems the most sensible alternative to me, and the one I
believe most for-profits opt to pursue.  It should be noted, however, that a
fair use analysis would still be open to the for-profit institution, although
its for-profit status would make the fair use argument more difficult.  So it
is possible that the for-profit could assert a very limited fair use and then
either restrict the distribution of materials to what falls within that narrow
boundary or pay permission for materials that fall outside of it.

Your option 3 concerns me a great deal.  I know some institutions believe that
they can shift liability to faculty through the use of signed declarations and
similar mechanisms, but I doubt very much that that is truly effective.  For
the employing institution to effectively avoid "joint and several" liability,
they would have to show that the employee was acting outside the scope of her
employment.  If the tort (copyright infringement) occurred as part of teaching
a course for which the instructor had explicitly been hired, this argument
would be very difficult.  I routinely tell institutions (non-profits) that
they should not rely on these attempts to shift liability and should, instead,
help teach their faculties about copyright and fair use, so that good faith
decisions are made, and both institution and employee are thereby protected
under the section 504(c)(2) remission of statutory damages.

I am not intimately familiar with Lipinski's book on liability, although a
copy lives on my shelves.  Can you point me to where you find a statement that
"faculty violation of copyright does not create a legal liability for the
institution"?  I am quite doubtful that the book makes this statement, at
least in such a comprehensive way.

Thanks,
Kevin

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
kevin.l.smith@xxxxxxxx


-----Original Message-----
From: Bob Holley [mailto:aa3805@xxxxxxxxx]
Sent: Thursday, February 02, 2012 7:22 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Copyright, for-profit educational institutions, and distance
education

In a discussion with colleagues today, no one knew how for-profit institutions
such as the University of Phoenix can successfully teach their online course
without breaking the law in regards to copyright. The Teach Act applies only
to non-profit institutions and therefore does not allow for-profits to legally
use copyrighted materials in distance education.



"Section 110(2), as amended by the TEACH Act, extends the Classroom Exemption
to accommodate the performance of copyrighted materials for distance education
by accredited, non-profit educational institutions that meet the Act's
qualifying requirements." From:
http://www.libraryvideo.com/aboutus/lvccopyright.asp



This statement would appear to gut the ability of for-profits to offer
distance education courses since almost all such courses depend upon the fair
use of copyrighted information. The conversation discussed three possible ways
around this problem:



1.       The for-profit institutions are set up in some convoluted way that
the teaching part is non-profit.

2.       The for-profit pays the fees for each use of a copyrighted item.

3.       The for-profit lets the faculty member do it without worrying about
the consequences since the copyright holder can sue only the faculty member
and not the institution since faculty violation of copyright does not create a
legal liability for the institution. (From my reading Tom Lipinski's book on
copyright liability for libraries.)



I tried to ask this question at a Teach Act training session years ago but
wasn't able to get through.



Any thoughts?



Bob



Dr. Robert P. Holley

Professor, School of Library & Information Science

106 Kresge Library

Wayne State University

Detroit, MI 48202

1-888-497-8754, ext 705 (phone)

313-577-7563 (fax)

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