Copyright

Tracy Mitrano Director of IT Policy and Computer Policy and Law Programs Cornell University

Agenda
History of Copyright in Anglo-American Law Copyright in American Higher Education
Peer to peer infringement Course management and e-Reserves Intellectual property agreements

The Impact of Copyright Law on the Future of American Higher Education

The Printing Press and the Book

From monasteries to movable type
Printing press (western) 1436/7 Critical component of Protestant Reformation

Stationers Company 1557

(And if we believe WeberCapitalism) Query: now that it is invented, how and who is going to control it? Absolute monarchy of Tutor reign and monopoly control
De facto copyright law and the foundation of exclusive rights but neither natural nor property Publishers as the arm of the crown

Rise of literacy and individual interpretation of the Bible

Anglo-American Copyright Law

Statute of Anne 1709
For authors first, not publishers
Following the political economic trends of modern individualism and capitalism

Fourteen years of protection, renewable for another fourteen Stationers rights for 21 years to publish Limits introduced concept of public domain and thus:
Aided democracy by providing information for informed, deliberative citizenry Balance interests of incentive for authors, rights for publishers and needs of public

Anglo-American Copyright Law

Constitutional Convention
Washington: access to information required to maintain an informed citizenry as bulwark against tyranny (i.e. public domain) Jefferson: fear of monopolies caused him to winnow authors/publishers protection (i.e. no exclusive rights, and very limited years) Madison: copyright not property, but policy, balancing incentive with learning, progress and innovation.

Article I, section 8:

Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Copyright Law of 1790

Exclusive right
From Stationers
Still with us

Fourteen years, renewable once

From Statute of Anne Policy, not property Specific

Registration required

Now for individual 70 years plus life of author

But nota bene the scope: books, maps

Not now, general: original work in a tangible medium

Not now, except for damages

Legislative History
First copyright law:
Copyright Act of 1790

Major revisions:
1831 1870 1909 1976

1976 is the current law, and each development of the law represents an expansion of scope and terms.

Why Is Copyright Law Out of Balance?

Scope. Historically content more rigidly defined
Currently: original work fixed in a tangible medium.

Registration required
Not now, except for damages

Originally copyright law encompassed a smaller class of material, maps. etc..

Almost ubiquitous Especially in digital form and the functionality of personal computer and network systems.

Why Is Copyright Law Out of Balance?

Terms.
Originally 14 years (renew once), limited definition, maps, etc. 1909 Act, 14 years plus two renewals, for total of 56. 1976 provided for 50 years plus life individual and 95 years for a company. 1998 Bono Amendment added 20 more years and suggests that copyright protection be extended in perpetuity.

Why Is Copyright Such a Big Deal?

Copyright is the core battle for control of the Internet. Imbalance with social norms, business models, technology and law. Internet placed the expansion of copyright law in a meaningful light for society at large
Digitization Personal computers Networking services

Unusual positioning of academia at the precipice of content creators and users.

Core of 1976 Copyright Law

Original work fixed in a tangible medium No copying, distributing or derivative works
Moral rights

Important Exceptions
Fair Use
Character Nature Amount Market Effect

First Sale Doctrine (libraries)

Compulsory licenses

Digital Millennium Copyright Act 1998

Amended 1976 Copyright Act by including digital material
Process
Section 512 Notice and Take Down
Conduit theory Safe Harbor for Higher Education Register with Library of Congress No knowledge Terminate Account of Repeat Offenders

Substance
Anti-circumvention provisions
Disallow tampering with encryption systems designed to prevent copying No reverse engineering Research provision very narrow, may still hamper academic research Universal v. Reimedres Edward Felten, Princeton

Coupled with the Copyright Term Extension Act

DMCA and Higher Education

Combination of factors:
Higher education lead the development of Internet communications
Big pipes

File share program technology

Fastest feed Automatic sharing

Demographic population
Youth, entertainment and personal identity Inflated cost of CDs v. few resources

Cornell
Comply
As a conduit, no duty; as a matter of policy:
Block immediately upon notice Letter to student
Cease and desist If intentional, refer to Judicial Administration for discipline Security compromise Counter Notice

Hosted on our computers:

Safe harbor, DMCA registration with Library of Congress

Cornell
Educate
IT Policy tutorial
https://cuweblogin2.cit.cornell.edu/cuwl-cgi/policyPub.cgi

Annual Notice
http://www.cit.cornell.edu/oit/policy/memos/ DMCA as well as institutional response to subpoena

University Computer Policy and Law Program

Information technology ethics education http://www.cit.cornell.edu/oit/ucpl/

Cornell
No monitoring for Content
University Policy 5.9, Privacy of the Network
Cornell University as a practice does not monitor or restrict the content of material transmitted on the university network or posted on university-owned computers except for the purposes of operational maintenance and security, but reserves the right to limit or remove access to its networks and to material posted on its computers, when applicable university policies or codes, contractual obligations, or state or federal laws are violated.

Cornell
Legal Music Program
http://www.cit.cornell.edu/services/music/
Formerly, the story revolves largely around

DRM (digital rights management) and Competition with free P.S. UT System
http://www.utsystem.edu/ogc/intellectualProperty/dmcais p.htm

The Real Issue for Higher Education?

Not peer to peer file sharing that constitutes infringement on the part of students, but how the law, technology, business models and social norms are impinging on higher education missions in teaching, research and outreach.

The Issue in 2001: TEACH Act

Technology Education and Copyright Harmonization Act Original concept
Parity between face-to-face exceptions to copyright law and distance education
http://www.lib.ncsu.edu/scc/legislative/teachkit/overview.html
http://www.lib.ncsu.edu/scc/legislative/teachkit/checklist.html

Reality
Extraordinary difficult with which to comply
Course management systems More restrained? Better to rely on fair use options?

Five years later

The American Association of Publishers threatens to sue Cornell University for copyright infringement on its course management and e-reserves systems
http://www.copyright.cornell.edu/policy/Copyright_Guidelines.pdf

Changes in Course Management System

We have changed some text for input of text on the course management system:
Front page overview on copyright, links and references, forewarning of the good faith sign off at the end; Last sign off page where individual attests in good faith that there is no copyright infringement.

Thoughts:
Authentication will not protect institution against copyright infringement!
If done to take advantage of the the TEACH Act, it is a misreading of it;
Intent to harmonize face to face and distant, not to provide more exposure. Indeed, consensus is that it provides less than fair use and is complicated and difficult to implement.

But this procedure does take the IT people out of the middle of the problem and your VP out of jail!

E-Reserves
Cornell content down 70% from last year!
Question:
Because that much was infringing in the past; or Because people are afraid, or can no longer be bothered to sort out the complexities of copyright law with their material to the degree required to assure good faith; or Because the copyright clearance/business model system for clearance is absent, cumbersome and inadequate to the task?

Impact of Copyright Law on Higher Education

http://cyber.law.harvard.edu/media/files/copyrightandeducation.html

Intellectual Property Policy within the Academy

Example of a poor one, in need of revision:
http://www.policy.cornell.edu/cm_images/uploads/pol/Copyright.html Whats wrong with it?
encoded

Example of a good one: Michigan

http://www.copyright.umich.edu/official-policy.html

Whats right with it?

Substantial university resources

Dream HE Copyright Policy

Policy Statement:
X complies with all copyright laws.

Reason for Policy

To comply with all copyright laws and to strive for the fullest expression of the institutions missions.

Principles and Procedures

DMCA Compliance
Course Management and E-Reserves Systems

Intellectual Property

Why Is Academia Uniquely Positioned to Negotiate?

Higher education is between malefactors on the left (everything should be for free) and the malefactors on the right (content ownersfair use) Higher education includes the whole spectrum of opinion about digital copyright Academia is in a unique position to speak to a sound social policy and legislative agenda on these matters. And assume a leadership position in American society and politics to do so.

Conclusion
Copyright specifically and intellectual property are among some of the most important policy issues of our day, both in terms of national and institutional policy. Higher education should champion the issue in order to maintain its missions and preserve its institutional autonomy nationally and abroad and to provide a beacon to the world on how to balance private property, open markets, availability of information and the free flow of ideas.

Conclusion
American higher education has the right motives:
Free inquiry. Learning for learnings sake. Free expression.

All values fundamental to American civil society and to higher education

Role of the citizen in a democratic republic relies on access to information in the public domain. Through that information the citizen remains informed and educated and can therefore participate in the democracy responsibly. Return a sense of balance between incentive and innovation.