Tag: education

2018 DMCA Section 1201 Exemptions Announced

On October 26, 2018, the Librarian of Congress issued the final rule for the current exemptions to the section of the Digital Millennium Copyright Act that prohibits circumvention of technological measures that control access to copyright protected works. We have written before about this area of the law and the rulemaking process involved (see our post on the previous exemptions from the last triennial proceeding in 2015).

The Prohibition against Circumvention under Section 1201

Section 1201(a) of U.S. Copyright Law prohibits the circumvention (e.g., descrambling, decryption, or removal) of a technological measure employed on or behalf of a copyright owner that effectively controls access to the copyright protected work. In order to ensure that non-infringing uses of copyrighted works are not unnecessarily inhibited by the prohibition on circumvention, however, a rulemaking session is held every three years to identify exemptions for particular classes of works.

Exemptions are determined by the Librarian of Congress, upon recommendation from the Register of Copyright, and remain in effect for three years.[1] There is no presumption that that a previously adopted exemption will be readopted, but new to the seventh triennial proceeding was the introduction of a streamlined process to renew exemptions adopted in 2015.

2018 DMCA Exemptions

On October 26, 2018, the final rules from the most recent triennial proceeding were announced.[2] The final rule includes exemptions covering 14 classes of works. We have created a chart to summarize all of the exemptions for this rulemaking proceeding. Exemptions include:

  1.  Short portions of motion pictures (including television shows and videos) for purposes of criticism or comment;
  2.  Motion pictures (including television shows and videos), for the purpose of adding captions and/or audio descriptions by disability services offices or similar units at educational institutions for students with disabilities;
  3.  Literary works, distributed electronically, protected by TPM interfering with screen readers or other assistive technologies;
  4.  Literary works consisting of compilations of data generated by patient’s implanted medical devices and personal monitoring systems;
  5.  Computer programs that that operate cellphones, tablets, mobile hotspots, and wearable devices to allow connection to a wireless network (“unlocking”);
  6.  Computer programs that operate smartphones and all-purpose mobile computing devices, to enable interoperability or removal of software applications (“jailbreaking”);
  7.  Computer programs that operate smart TVs for the purpose of enabling interoperability with computer programs on the smart television;
  8.  Computer programs that enable voice assistant devices to enable interoperability or removal of software applications;
  9.  Computer programs contained and controlling function of motorized land vehicles to allow diagnosis, repair, or modification of a vehicle function;
  10.  Computer programs that control smartphones, home appliances, or home systems to allow diagnosis, maintenance, or repair of the device or system;
  11.  Computer programs, for purposes of good-faith security research;
  12.  Video games in the form of computer programs, where outside server support has been discontinued, to allow individual play and preservation by an eligible library, archive, or museum;
  13.  Computer programs, except videos games, no longer reasonably available in commercial marketplace, for preservation by eligible libraries, archives, and museums; and
  14.  Computer programs operating 3D printers, to allow use of alternative feedstock.

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Back to School Workshop: Copyright and Fair Use in the Classroom

Please join the OSU Libraries’ Copyright Resources Center and the Health Sciences Library Copyright Coordinator for a session on copyright in the classroom that will help you understand your rights and responsibilities as an educator. We will review the principles of fair use, suggest tools to help evaluate the rights involved with using copyrighted materials, and utilize case examples to illustrate common copyright questions related to teaching and learning. Bring a laptop or mobile device to participate in interactive portions of the session.

This workshop will be offered twice, and instructors will be available for an additional 30 minutes at the end of each session for optional Q&A.

September 11, 2014
Health Sciences Library (Prior Hall), Room 400

September 22, 2014
Thompson Library, Room 150B

Please RSVP at the following link: go.osu.edu/copyrightRSVP

Copyright Resources Center hosting OSU discussion group for copyright MOOC

Join the OSU Libraries’ Copyright Resources Center for weekly lunch & learn discussions to accompany the upcoming massive open online course (MOOC) “Copyright for Educators & Librarians.” The free online course is available on Coursera and will run from July 21-August 18. The OSU discussion group will meet each Thursday from 12-1pm for the duration of the course to review each week’s material and discuss any questions you might have. This is a great opportunity to review or learn for the first time about copyright issues and questions affecting teaching, libraries, and education.

The  “Copyright for Educators & Librarians” MOOC will be taught by Kevin Smith from Duke University, Anne Gilliland (formerly of OSU) from the University of North Carolina-Chapel Hill, and Lisa Macklin from Emory University. Learn more about the course and sign up for the MOOC here: https://www.coursera.org/course/cfel

Sandra Enimil and Jessica Meindertsma from the OSU Libraries’ Copyright Resources Center will host weekly discussions in Thompson Library, Room 150A each Thursday from 12-1pm (bring your lunch!) for the duration of the course. If you would like to participate from a regional campus, please contact us as soon as possible so that we can arrange for web conferencing. All participants please RSVP to LibCopyright@osu.edu.

OSU discussion group details: 

  • 12-1 pm on Thursdays for the duration of the course: July 24, July 31, August 7, August 14
  • OSU Columbus Campus, Thompson Library, Room 150A
  • Feel free to bring your lunch
  • All participants please RSVP to LibCopyright@osu.edu



By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Copyright Considerations with Electronic Learning

Electronic learning consists of a number of different educational models that allow instructors to deliver instructional content through electronic means. These models include distance learning classes offered through educational institutions (online classes), university course management systems such as OSU’s Carmen, massive open online courses (MOOCs) such as Coursera or edX, and other open educational tools.

These models all function as learning tools, but their structural differences mean that various copyright considerations are raised. Here are some differences to keep in mind:

  • Open v. Closed Structure: Many distance learning classes and course management systems are closed structure, meaning that they are typically limited to a specific number of identifiable enrolled students. MOOCs operate under an open system, meaning a potentially unlimited number of students where enrollment may not be required.
  • Profit v. Non-Profit: Universities and other educational institutes that offer distance learning classes are typically non-profit entities, though for-profit institutes also exist. Two of the largest MOOC providers, Coursera and Udacity are for-profit entities.
  • Instructor Interaction and Student Participation: Like traditional classrooms, distance learning classes include student-instructor and student-student interaction, where individual grading may be based on electronically submitted material or proctored exams. For MOOCs, student-instructor participation may be limited, and students may play a larger role in orchestrating study groups and grading other classmates.
  • Cost: Students enrolled in distance learning classes must pay the tuition required by the provider of the course (ie. the university). MOOCs developed as a free resource and the majority of courses continue to be offered for free.
  • Academic Credit: Students who have completed distance learning courses may elect to receive academic credit for their work. Traditionally, MOOCs did not offer academic credit, however, some universities have been working to offer academic credit or provide the student with verified certificates.

Now that you are familiar with some of the differences in electronic learning models, we can start to look at the copyright issues these differences raise.

1.         Who owns the copyright in the online course? When an original work of authorship is created, such as the development of a course lesson plan or scholarly article, the author of the work holds a copyright in the work. When the author is an employee, however, it may be the case that the employer (the university) is actually considered the author of the work. This is known as the work-for-hire exception.

The general culture surrounding educational institutions is that works of scholarship, unlike lesson plans or other course work materials remain the intellectual property of the instructor. Though some institutions consider scholarly works to be a part of the general course work of the instructor, for clarity, this issue should be discussed so everyone understands the status of each work being produced.

In addition, educational institutions that work with MOOC providers have to understand the terms and conditions of their agreement. MOOC providers may use a Creative Commons licensing scheme, claim ownership of all content that is uploaded (consequently prohibiting copying and distribution of the course work), or something in-between. All terms and conditions should be reviewed to understand the full extent of the restrictions on copyright ownership.

2.          What material can be included in an online course? An instructor or creator of an online course should first consider including their own material to avoid copyright concerns. If the material has been used in the past, for example in the context of prior teachings or publications, the instructor should first confirm that they retain the copyright in the work. In addition, an instructor may include material through the following means:

  • § 110: Federal copyright law allows for some protected materials to be used by non-profit educational institutions, depending on a number of factors. Within a traditional classroom, instructors may display or perform a lawfully made copy of a work, within the context of face-to face teaching, and be protected under § 110(1).  For online courses, use of material is more easily handled through the TEACH ACT (§ 110(2)) (For a checklist of the requirements for protection under § 110(2) click here).  It is not clear whether a university that is non-profit on its own can lose that status when partnering with a for-profit MOOC to provide online classes. But even for non-profit MOOCs, statutory protection under § 110(1) or § 110(2) may be difficult because MOOCs do not limit use of material to a specified number of enrolled students, making limitation on the transmission of material difficult.
  • Fair Use: For-profit MOOCs may still be able to rely on the defense of fair use (§ 107) in the event that copyright issues arise. For a further explanation on fair use factors click here. The material being used in online courses is educational material made available for the purposes of teaching, an example cited within § 107. This may balance out the commercial nature of MOOCs. It is also important to consider the character of the use. Courts have been more inclined to find that the first factor of fair use (purpose and character) is fair when the use of the material is transformative. If an instructor is providing material for the purpose of facilitating discussion/criticism/analysis, then such a use is more likely to be determined to be transformative. It is also important to consider how much of the work is being used. If instructors limit their use to just the portions of the material that is needed, this will help the instructor/university in their fair use argument. Lastly, availability and feasibility of licensing of the material should be considered. If it is easy to obtain a license, and to do so at a fair price, this can weaken a fair use defense.
  • Public Domain: Instructors can include works from the public domain within the course material, or works that are otherwise under an open license.
  • Securing Permission: An instructor can secure permission to use the work from the copyright holder. This permission may often take the form of a licensing fee, which may be at odds with the free structure of many MOOCs.

In addition to considering which materials can be made available to individuals as part of their participation in the course, an instructor or course creator should also consider the issues that may arise in assigning outside reading materials. For traditional face-to-face teaching models, as well as distance learning classes, this usually means purchasing a textbook or other course material through the university book store or copy center. The underlying goal of MOOCs, however, is to provide a free experience to participants.

Many of the same options mentioned above for including material within the course are also options to consider for providing access to materials outside of the course plan: using Creative Commons works or works in the public domain, negotiating new licenses or otherwise obtaining permission from copyright holders for as low of a price as possible, arguing statutory protection under § 110(2), or relying on fair use.

3.         What can participants do with the material? Under the TEACH ACT students may view but not download or otherwise copy materials, but some use of the material may be protected under fair use. Once again, this sort of limitation can pose problems for open courses. If the course material being used is the instructor’s own work, with no limitations placed on further use, or if the work is from the public domain, this issue may be avoided. As with distance learning classes, participants may also wish to rely on fair use, so long as their use is non-commercial and otherwise limited in scope. Lastly, institutions participating in MOOCs may wish to negotiate licensing arrangements with copyright holders in order to allow participants to make copies of the work.

As more educational institutions provide electronic learning options, it is important to be aware of the advantages, limitations and uncertainties that can surround e-learning. Educational institutions and instructors should be conscious of the difference in existing e-learning structures, and how the chosen structure helps to dictate how copyrighted works may be used inside and outside of the electronic classroom. For further information or assistance with questions, please visit the Copyright Resources Center or email libcopyright@osu.edu.

Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

Why Copyright Education?

In May of this year, American Libraries published a letter I wrote about copyright education.  I wrote the letter in response to an opinion piece called “The Copyright Mummies” that Melanie Schlosser, also of OSU, had written in the March issue  about the harm of long copyright terms.  In it, Schlosser argued that we should stop “fetishizing the artist” and recognize that today’s longer copyright terms mostly enrich large entertainment companies and the few, most successful artists, not the average creator and his or her family.  She concluded with a call “to honor the creative process by ensuring a meaningful dialogue between creators—past, present, and future.”

My letter was a partial answer to this question:  Given the reality of long copyright terms and my own pessimism that those terms will get shorter, how do we honor the creative process and have that meaningful dialogue?  Although my answer was aimed toward librarians, it is relevant for all of us.  We need to start that dialogue by knowing something about current copyright law and its impact on our lives and work.

Copyright terms are long these days  (The U.S. Copyright Office has a good circular explaining the complicated laws of copyright duration), and they aren’t likely to be shortened in the foreseeable future.  (See, for example, Eldred v. Ashcroft , holding that a retroactive extension of copyright terms is not unconstitutional.)  Although many postulate about the desirability of going back to shorter copyright terms, long terms are the reality of the copyright world in the U.S. today.

Schlosser is correct that these long terms primarily benefit entertainment and publishing companies.  They also benefit the few creators—and their heirs—who are talented, lucky, and persistent enough to make significant money from their creative work.  As work stays in copyright longer, creators die and their heirs can’t be found.  This problem with orphan works and the lag before work enters the public domain has an effect on the work we do in the future.

Whether or not most of us think of ourselves as artists, we are making copyrighted work all the time when we write papers, make videos for YouTube, or write blog posts.  We’re also reusing copyrighted work as we do these things.  We’re remixing content, quoting books and papers other people have written, trying to get permission to include a chart or diagram in a scholarly paper.  Long copyright terms make all these reuses more problematic.

How do we deal with our position as creators and copyright holders?  How do we decide how relate to other copyright holders?  What can we do with their work legally?  What do we think it is right to do ethically with another’s work?  How do the norms of our professions fit in?  There are a lot of thorny questions with regard to copyright, and the answers are often not clear cut.  But, since we all participate in copyright, let’s start by trying to get a sense of what the law actually says and what are options are at present, and then move on to think about what we wish copyright would be.    The dialogue we hold is between us and the creators of the past, present, and future, and some of that dialogue is with ourselves, as people who participate in both sides of the copyright coin.