Special Rules Regarding Liability of Nonprofit Educational Institutions
These are rules only lawyers could love. Yet, they are not oppressive and each institution can formulate simple procedures to make these provisions work smoothly.
Section 512(e) of the DMCA expands the safe harbors to include infringing acts of a faculty member or graduate student employee performing a teaching or research function. For transitory communications or system caching, the faculty member or student shall be considered a "person other than the provider," and avoid disqualifying the institution from eligibility. For the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. However, the following conditions must be met:
1. The faculty member or graduate student's infringing activities do not involve providing online access to course materials that were required or recommended during the past three years;
2. The institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing; and
3. The institution provides all of its users with informational materials describing and promoting compliance with copyright law.
The requirement that all users be provided with informational materials means that additional education is necessary to comply with the DMCA.
In order to comply with the requirements for limitation of liability, a model provision drawing on many existing university models follows. The provisions should ideally be linked to the home page copyright notice and should also be a primary hit for a search of "copyright infringement."
DMCA Compliance Policy and Notification Agent
It is the policy of the University of North Carolina General Administration to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512 ("DMCA"). Pursuant to the DMCA, the University of North Carolina General Administration has designated an agent to receive notification of alleged copyright infringement occurring on webpages or computer servers. If you believe that your copyrighted work is being infringed on a The University of North Carolina General Anministration site, please notify our designated agent, preferably by email, at:
Contents of Notice
The University of North Carolina General Administration may not be able to act on your complaint promptly or at all if you do not provide the following information.
The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing the designated agent of an alleged copyright infringement, you must:
1. Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a list of the works on that site.
2. Describe the material that is claimed to be infringing and provide sufficient information to permit The University of North Carolina General Administration to locate that material.
3. Provide your contact information, including an address, telephone number, and, if available, an e-mail address.
4. Certify or include a statement that you have a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner's agent, or law.
5. Certify that the information that you have provided The University of North Carolina General Administration is accurate. You should attest under penalty of perjury that you are authorized to enforce the copyrights that you allege have been infringed.
6. Include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner.
Before you allege an infringement, you should consult copyright materials to confirm that the use is, in fact, infringing. The United States Copyright Office provides basic information, online, at http://www.copyright.gov/circs/circ1.pdf, which can assist you to determine whether an exception or defense, such as fair use, may apply to the use of your copyrighted work.
Notice, Takedown, and Putback Procedure
The University of North Carolina General Administration expects all users of its system to comply with applicable copyright laws. However, if the University of North Carolina General Administration is notified of a claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond appropriately, which may include removing or disabling access to the material that is claimed to be infringing. The University of North Carolina General Administration will follow the procedures outlined in the Digital Millennium Copyright Act with regard to appropriate notifications of the user and the complaining party, acceptance of counter notifications, and, where indicated, "putback" of the alleged infringing material. Refer to the United States Copyright Office for the provisions of the DMCA at http://www.loc.gov/copyright/legislation/dmca.pdf.
Where it has been clearly established that the University of North Carolina General Administration user is a repeat offender, the University of North Carolina General Administration may terminate that person's account.
US Copyright Law and the University of North Carolina General Administration Policy
Individuals who infringe copyright-protected materials on The University of North Carolina General Administration networks may be subject to discipline. In appropriate circumstances, penalties for violations of The University of North Carolina General Administration Policy may include, but are not limited to, termination of all computing privileges.
Copyright infringement is a violation of federal law and subject to severe civil penalties and sanctions. Copyright infringement can also be a violation of federal criminal law. Thus, every user of The University of North Carolina General Administration networks and web must maintain a basic understanding of copyright law and must comply with the University of North Carolina General Administration policies.
For more information on U.S. copyright law and the DMCA, consult the Web site of the U.S. Copyright Office [http://lcweb.loc.gov/copyright]. The U.S. Copyright office has a variety of circulars and forms, available online or printed, which can provide answers and guidance to many copyright questions and issues. The Copyright Office's Circular 1, http://www.copyright.gov/circs/circ1.pdf, has simple, concise, explanations and descriptions of what you must do to keep from infringing copyrights of others, as well as protecting your own creative works. In addition, there are resources available through the library or through a simple web search on copyright.
This proposed language provides the required notification and procedures to take advantage of the DMCA liability limitations, and also provides at least rudimentary materials for copyright education so that it invokes the limitations for educational institutions. Additional information linked to the copyright notice, such as a PowerPoint tutorial or fair use primer, is highly recommended, as are seminars and distribution of printed materials. This policy is just a first step.
Evaluating Notice and Warning Repeat Infringers
While the OSP can take down or block materials without potential for liability for its acts, this does not mean that the OSP should automatically react by removing or blocking materials upon notice of infringement. The copyright laws are difficult enough to create confusion, and disrupting a faculty page during a semester, or removal of something that is clearly allowed because of fair use or another defense, would be counter-productive. Immediate contact with the user alleged to be the infringer, review of the work, and a reasoned decision should protect all parties involved.
On the other hand, there are clear and obvious infringements, which can be removed or blocked immediately. The OSP should not hesitate to remove or block works that clearly infringe.
Given the clear advantages of registration and notice, there is no reason to forego the safe harbors provided by the DMCA. A simple policy and procedure should provide valuable and important protection from very serious potential liability for copyright infringement, and also provide additional guidance for constructive and legal use of the web and networks at higher education institutions and entities.