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TEACH vs. DMCA Showdown Looming
TVmisGuided writes "A copyright showdown between the DMCA (Digital Millennium Copyright Act) and the Teach (Technology Education and Copyright Harmonization) Act is brewing that will have serious implications on the future of higher education on-line. The article
from Chronicle.com spells out the upcoming brouhaha. IMO, this will be one of the strongest litmus tests of the DMCA since it was signed into law in the U.S."
A group representing college media centers is warning the
U.S. Copyright Office about a possible conflict between two federal
laws, one meant to limit electronic access to copyrighted material and
the other designed to broaden access to the same material for online
education.
At issue are the Technology Education and Copyright
Harmonization Act and the Digital Millennium Copyright Act. The first
measure is known as the Teach Act and was signed into law in November.
It amended copyright law to allow college instructors to use
nondramatic works, such as news articles and novels, and portions of
dramatic works, such as movies, in online courses without paying fees
and without seeking the copyright holder's permission.
The second law, which took effect in 1998, has a section that
makes it illegal to bypass technologies that block access to
copyrighted material. In a letter sent last month to the Copyright
Office, the Consortium of College and University Media Centers says it
wants clarification of that section of the digital-copyright law, known
as the anti-circumvention provision.
What worries the media centers is that colleges might not be
allowed to bypass copying protections even when they need to do so to
use materials from CDs and DVDs for distance education, as permitted by
the Teach Act in certain circumstances. The problem arises when digital
materials are not also released in non-digital formats that the
colleges can fall back on, such as print.
The group represents 312 college media centers, many of which are responsible for helping faculty members create online courses.
The group's letter was among dozens sent to the copyright
office. It is considering exceptions to the anti-circumvention
provision, as it is legally required to do every three years.
Noting that colleges have barely begun to apply the provisions ...
of the Teach Act, the group says that given the law's "great promise
and its expected wholesale adoption by nonprofit higher education
we cannot wait another three years to deal with the impact of this
conflict after the fact."
Jeff Clark, the chairman of the college media group's
government regulations and public-policy committee, wrote the letter.
He says he knows of no specific cases in which colleges have felt
constrained from taking advantage of the Teach Act because of the
anti-circumvention provision.
"It was more a proactive measure," he says.
Allan R. Adler, vice president for legal and governmental
affairs for the Association of American Publishers, which helped draft
the Teach Act, says the kind of conflict that Mr. Clark's letter
describes would be "very rare." Publishers of books and journals almost
always have analog versions of digital material. Those that do not
often market digital material specifically for educational purposes, he
says.
Later this year, the Copyright Office is expected to reveal
its opinions on the comments it has received during hearings on the
issue.
The Technology, Education and Copyright Harmonization (TEACH) Act This site gives a bit more background into why it was considered necessary, as well as examples of how it is to be implemented.
Since we all know what the DMCA is, would be to have a link or two to the TEACH act for those of us who dont know what its about
The house...
www.ala.org/washoff/teach.html
Couldnt find a good senate one... but thats a start
moo.
Educators and Copyright (Score:2)
by Bonker (243350) on 15:09 Tuesday 25 March 2003 (#5593550)
(http://www.furinkan.net/)
Many educators I know (Elementary school teachers, so take that into account) honestly beleive they are completely immune from copyright law because they are educators.
I routinely hear of a teacher buying or borrowing a book and then copying that book in its entirety on a xerox machine, and then distributing copies to students or other teachers. When asked about it, the response is invariably the same. "Oh, it's okay. I'm a teacher."
But educators are exempt from copyright laws in many ways that common folk are. There are four factors outlined in Section 107 of the copyright law that determine fair use for educators:
The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for or value of the copyrighted work.
So it's essentially a "good faith" doctrine: is the copied portion brief? Is this use of the work likely to threaten its market potential? Is your intent to avoid paying for copyrighted materials?
Educators definitely have rights and privilages outside of mere mortals. They do not have blank checks or blanket protection-- but they certainly are exempt in many ways. If that was the last copy of an out-of-print or hard to find book, or a book that those other educators or students would otherwise not be able to obtain (ie, cost prohibitive) and their copies would not be further distributed (here, we re-collect and/or destroy copies like that once we're done with them) then it is fine.
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Actually, Departments at my school, Vanderbilt University, are forced to pay in the THOUSANDS to show a movie to a classroom or provide to the class a chapter of a book. I'm not sure about the legality of taking clips, but I know we are currently paying to do so.
barzelay.net
He's not questioning his legal right to use the clips as he is, you're right in that the DMCA does not cover this. However, the DMCA does prevent him from legally unencoding the DVD streams to generate the clips that he's using. The DMCA also covers the creation of the clips, even if the DVD is not encoded, since creating DivX clips of various scenes is not one of the original manufacturer intended uses.
In other words, the clips themselves are not in question, it is the method in which he's obtained them.
His legal alternative? Request the clips from the studio already in DivX format, for consumption by his class.
Likelyness that he'd ever see a response from the studio? nil
In fact, technically that is breaking the law, and it's the reason we get all worked up about it. The DMCA makes it a crime to "[...] circumvent a technical protection measure that [...] protects a copyrighted work". Nowhere does the DMCA say that the crime occurs only when the subsequent use of the work would constitute copyright infringement. (It does make a limited exception for enumerated classes of works; such enumeration is the province of the Librarian of Congress, and so far that office has not granted many exceptions. DVDs are definitely not within the exception to date.)
Fair use is a defense only to an accusation of copyright infringement. Since infringement doesn't have to be alleged in a DMCA case, you never get to raise the issue of fair use.
IANAL either, but I have spent an enormous amount of time discussing this on the DVD-discuss list.
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