Subject: RE: Copyright, for-profit educational institutions, and distance education From: Eric J Harbeson <eric.harbeson@xxxxxxxxxxxx> Date: Fri, 3 Feb 2012 12:44:14 -0700 |
Kevin and all, I agree that the "shift the responsibility to the faculty" won't work (isn't the sole remaining charge in the GSU case that they were responsible under respondeat superior?), and I certainly agree that we need to do more fair use education. However, though this is implied in Kevin's comment, I think it's worth pointing out that in the case of the University of Phoenix discussion, the statutory damage remission clause in 504(c)(2) wouldn't apply, since the (librarian|faculty) is not an "employee or agent of a nonprofit educational institution, library, or archives..." I expect that there is a very credible fair use defense here, but that maybe a pretty high wire to walk without a safety net? Cheers, Eric Harbeson -----Original Message----- From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx] Sent: Friday, February 03, 2012 8:37 AM To: Bob Holley; digital-copyright@xxxxxxxxxxxxxx Subject: RE: Copyright, for-profit educational institutions, and distance education 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)
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