 |
  |
Dealing With the Higher Education Opportunity Act’s New Copyright Protection RequirementsNovember 2009 The Higher Education Opportunity Act (HEOA), enacted in August 2008, placed new obligations on colleges and universities in several domains, including copyright protection. On October 29, 2009, the Department of Education released its final regulations on the implementation of these new requirements. The regulations became effective on July 1, 2010. The new requirements will spur many colleges and universities to examine and modify their existing copyright policies, statements, and procedures. We are writing this memo in order to encourage our clients and friends to institute policies that not only comply with the law but also further the institution’s own views about its academic mission and responsibilities. The Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), which lobbied for the new requirements, may be expected to suggest aggressive approaches to compliance, based on their understandably strong desire to combat illegal peer-to-peer file sharing. But RIAA’s and MPAA’s campaign against file sharing has sometimes smacked of overkill (witness the RIAA’s now-abandoned campaign of in terrorem lawsuits against college students). College and university administrators may be tempted to follow the RIAA and MPAA recommendations, if only as the path of least resistance. But we want to emphasize that the statute and regulations do not require a lock-step response and that they provide each college and university with a substantial degree of discretion in fashioning its response. The Higher Education Opportunity Act thus provides educators with an opportunity for making their own considered decisions about copyright education. Overview of the New Requirements
The HEOA and regulations require colleges and universities (1) to notify students annually about institutional policies and potential liability for copyright infringement, including peer-to-peer file sharing, and (2) to develop and certify plans for combating the unauthorized distribution of copyrighted material, including through the use of “a variety of technology-based deterrents.”
To remain “eligible institutions” for student loan and assistance programs under the Higher Education Act, colleges and universities are now required to provide an annual notice to students that describes institutional policies and sanctions related to copyright infringement. The disclosure must include the following:
Colleges and universities will have to examine and, in some cases, revamp their existing notices, in order to comply with the regulations. The notices may be sent by mail or email, and may be included as part of larger sets of rules and regulations that are sent to students. One example of such an “Annual Copyright Compliance Letter,” recently sent by the University of Southern California to its students, can be found at www.usc.edu/its/copyright/letter. Although the USC letter undoubtedly complies with the new regulations, it reflects USC’s particular take on copyright education. It focuses on the RIAA’s and MPAA’s efforts to monitor and combat illegal file-sharing. (Perhaps that’s because so many of the recording companies and movie studios are USC’s Los Angeles neighbors). The USC letter has little to say about copyright outside the realm of file sharing or about the doctrine of fair use. Other colleges and universities may wish to make different decisions about the content of the notices to students, consistent with each institution’s own educational philosophy and goals.
The HEOA and regulations require each institution to certify that:
In its comments on its new regulations, the Department of Education indicates that the required technology-based component may include such technologies as bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of responding to Digital Millennium Copyright Act (DMCA) notices from copyright owners, and a variety of commercial products designed to block or reduce illegal file-sharing. The regulations make clear that although the institution must periodically review its plans to combat unauthorized distribution of copyrighted material by users of the institution’s network, “no particular technology measures are favored or required for inclusion.” Moreover, the regulations acknowledge the institution’s need to ensure that any such plans do not “unduly interfere with educational and research use of the network.” The regulations also give the institution considerable discretion in the way it responds to the HEOA mandate to provide legal alternatives to illegal downloading “to the extent practicable.” The institution is required to review periodically such “legal alternatives” and to make information about such alternatives available to students. But the actual offering of any such legal alternatives remains to be “determined by the institution.” It is clear that HEOA does not require colleges and universities to offer students free music or videos through legal channels. The Opportunity: Better Education About Copyright
Although the HEOA and the new regulations may create new burdens for colleges and universities, we think it also provides an opportunity. As noted above, the Act and regulations leave institutions of higher education with a great deal of discretion. By prompting institutions to re-examine their copyright policies and procedures, HEOA may help the institutions to formulate policies that not only deter copyright infringement but also educate students, faculty, and staff about the purposes of copyright in a free society. In this spirit, here are just a few of the questions that colleges and universities may want to consider as they respond to HEOA in the realm of copyright protection:
The Act requires only that you notify your students. But your faculty and staff may need copyright education, too. As anecdotal evidence of this need: Recent postings on NACUANet suggest that some professors believe that student papers and student art work can be freely used by the professors or the college without permission, for their own educational purposes. This view seems to reflect a double standard that has no basis in copyright law.
The Act and regulation do not require an exclusive focus on peer-to-peer file sharing. In our view, the notice should not overemphasize file sharing at the expense of other concerns. If we end up conveying the impression that copyright law is mainly about file sharing, we will have done our students a disservice. There may be particular areas of concern, in addition to file sharing, that you may wish to highlight in the notice. For example, some colleges and universities have expressed justifiable concern about companies like CourseHero.com that encourage students to post course materials (such as syllabi, lecture outlines, and tests) for consumption not only at the students’ own institution but also by students at other colleges. You may want to inform your students that such course materials are protected by copyright, and can be posted only with the professor’s and/or college’s permission.
The Act requires you to inform your students about the potential civil and criminal liabilities for copyright infringement (which can at least theoretically include jail time). But if colleges are to tell their students about liability for infringement, we think they should also give more than lip service to the doctrine of fair use, which is central to the academic enterprise. Under the fair use provision of the Copyright Act, the fair use of copyrighted material for such purposes as criticism, comment, news reporting, teaching, scholarship, and research is not an infringement. Without fair use, we would have a hard time teaching or learning at all. Deciding whether particular uses are “fair” is a highly fact-specific and often subtle inquiry. But although the inquiry is subtle, an important part of copyright education is to explain how the fair use provision strikes a vital balance between copyright protection and free expression.
In considering “technological deterrents,” institutions of higher learning should consider not only the technological effectiveness of particular techniques but also their possible unintended effects, both positive and negative. For example, traffic monitoring may be valuable not only in detecting illegal file sharing but also in protecting network resources for the entire university community. At the same time, however, particular approaches to identifying the highest bandwidth users might give administrators more access than they need to the content of students’ (and, for that matter, faculty and staff members’) communications. Moreover, some such approaches could take on a Big Brother quality that is inconsistent with the college’s values. The questions to be asked and the answers to them may not be the same for all colleges and universities. In our view, the way that each institution poses and answers such questions may reflect not only its technological sophistication but also its view of its educational mission. Zick Rubin and Brenda Marshall Ulrich
© 2009 by The Law Office of Zick Rubin www.zickrubin.com |
