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

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

Janet,

That is, of course, the key question.  We have seen courts stretch the
definition of transformative pretty far in some cases, where they clearly
wanted to find fair use and believed that they must find transformativeness in
order to rule in favor of fair use.  Personally, I wish we could go back to
the Campbell case, where the Supreme Court explicitly said that a finding of
transformativeness was not a sine qua non for fair use, and even mentioned
copying for teaching as the prime example of a practice that could be fair use
without having to be transformative.  Of course, that argument would be
significantly harder for a for-profit.

Kevin


-----Original Message-----
From: Nepkie, Janet [mailto:Janet.Nepkie@xxxxxxxxxxx]
Sent: Friday, February 03, 2012 12:44 PM
To: Kevin Smith; Bob Holley; digital-copyright@xxxxxxxxxxxxxx
Subject: Re: Copyright, for-profit educational institutions, and distance
education

Kevin,
Thanks very much for the interesting and thoughtful post you've given us.

In the event that a for-profit university declares its use of protected
materials to be a fair use, I look forward to hearing how such use may
considered "transformative."

Janet Nepkie

Dr. J. Nepkie
SUNY Distinguished Service Professor
Professor of Music and Music Industry
Fine Arts 145
State University College
Oneonta, NY 13820
tele: (607) 436 3425
fax:   607 436 2718
nepkiej@xxxxxxxxxxx





On 2/3/12 10:37 AM, "Kevin Smith" <kevin.l.smith@xxxxxxxx> wrote:

>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)
>
> <mailto:aa3805@xxxxxxxxx> aa3805@xxxxxxxxx (email)