Copyright Principles in Action

VI. Professors’ Web Pages or Bulletin Boards

A. Web Pages

Certainly material on an instructor’s web page written by the instructor can be displayed, copied and distributed as the copyright holder sees fit. The problems that could arise involve material "borrowed" from others. The "other" authors and sources could be students in the class, fellow academics, published scholarly articles, and creative works unconnected to academia. While there may be unquestioned educational value in exposing students to such other material not available in the textbook and too lengthy or too specialized to be acquired via a course pack, the same rules apply. Thus, unless the portions placed on the web site can qualify under fair use, permissions will be required (even from students in the class or in previous classes). One feature that could be important in weighing the impact factor in the fair use analysis is whether the site is only on the campus intranet and can only be accessed by a class-member-only password or whether it is on the Internet accessible to "the world". Also, if the use of the copy was in the nature of "criticism" or "commentary" (e.g. a book review) this would weigh the type-of-use factor favorably (as, of course, would an instructional use).

There is a slight possibility that the use of others’ copyrighted material on an instructor’s web page would qualify under the remote education exemption of Section 110(2) . The presently insurmountable problem is that this section basically envisions a "live transmission" to a remote classroom. In the context of a class web page, the class would not necessarily access it in "real time" (at least so far as the instructor’s lecture was concerned) and the class members would most likely access it from their residence (though a library or computer lab location would certainly also be available). This statutory concept of "remote education" is rapidly becoming anachronistic as the practice evolves into "distributed learning". Hopefully, Congress will be convinced to amend Section 110 to bring it more into line with current technology. Even if this amendment were to happen, there almost certainly would be a requirement that the web site prominently display a restriction that the downloading students can make those copies only for their own personal use and cannot make further copies or sell or loan the downloaded version to anyone else.

It may well be desirable to identify other Internet locations of material of which the students should be aware. Certainly it is safe to display a list of such locations. It is also non-infringing to have a outward-link to someone else’s website where copyrighted material may be found. If that outward link is to the copyright holder’s site which can be accessed without a password (sometimes linked to a user fee), there may be an implied license for those who access it to copy and use it freely. If the outward link is to someone else’s (other than the copyright holder’s) site, the material may be there under license or permission or it may be there illegally. However, the courts so far have not held merely allowing a visitor to your site to connect (via an outward link) to an infringing site to be contributory infringement on your part (though publishers may argue that the link is "facilitative" of the remote display and thus should support contributory infringement). The foregoing presumes you are not remunerated in any fashion for affording the pathway or for advertising the other site. However, if a copyright holder notifies the University that the remote site is infringing (actual notice) or University administrators are "aware of facts or circumstances from which infringing activity [at the remote site] is apparent", the University will not qualify for a statutory immunity from monetary liability. That is not to say a court would necessarily hold the University liable; it merely means that the specified statutory defense will not apply. It is important to note that it is no defense to infringement to say that the material was downloaded off any old Internet site to become part of the instructor’s web page. If the material was infringing elsewhere, no special immunity will apply to the instructor’s page simply because that material was taken off the Internet.

It should be noted that research data itself cannot be the subject of copyright. This is because it is factual and/or inseparable from the underlying idea. Cf. Miller v. Universal City Studios, 650 F.2d 1365, 1368, 1372 (5^th Cir. 1981). However, this does not necessarily mean that the text of the scientist’s article would not be copyrighted. The judicial policy is that the discovery or the scientific fact cannot be monopolized even by its discoverer, although her way of expressing herself in the report of her conclusions and analysis may be copyrightable.

B. Electronic Bulletin Boards

Electronic bulletin boards are somewhat different in that the operator or manager of the board is more passive and may not have personally uploaded or posted the infringing material on the board. Thus a professor might "host" or "provide" a bulletin board for students in his class to use. If the board is accessible via the Internet, there is considerable case-law precedent as to liability for infringement. A synopsis of some of the leading cases can be read by in Appendix G. Some of the cases involve commercial bulletin board operators, i.e. they charged their users a subscription fee or an access fee. Other operators went further and profited from actual "hits" or "downloads" or sold custom downloading software or hardware to their users. Both types of operators have been held to be vicarious or contributory infringers even when they themselves were not the person who posted the infringing material. Alternatively, a subscription operator was found to be a direct infringer under the theory that the images (originally posted by others) were "publicly displayed" on the operator’s server even though they could only be seen by the (hundreds or thousands of) subscribers. And, in a well-reasoned and detailed decision, an online access (service) provider (an OSP) was held to be a contributory infringer when all it functionally did was passively provide Internet access for a bulletin board operator on whose board a third party had posted infringing material. The copyright holder had informed the OSP of the infringing posting and the OSP was held liable because it did nothing to remove the material from its server in the days following its being put on notice.

Where the postings involve images or music, the fair use issues are easier to resolve against the board operator since the portion copied is usually 100%. And, as we enter the era of e-commerce, the impact factor may be significantly negative as well since the copyright holder might not only sell books or photographs (or digitized copies of art) in hard copy, but may also sell the text or images or tunes off a web site for electronic downloading.

Thus if an instructor creates or operates an electronic bulletin board, she must do a reasonable fair use analysis when others’ works are posted by her (or obtain permission or do the posting consistent with a license to the University). Even if the material is posted by a student, if she is notified that infringing material is on the board, she must do a due diligence investigation (a copyright symbol, e.g., is prima facie evidence that the material is copyrighted) to determine whether the posting is fair use or is authorized by the copyright holder. If the answers are negative, she would be well advised to promptly remove the infringing material (after refering the matter to the UO Office of General Counsel). Absent notification, the best procedure (for legal protection) is to not monitor or edit the postings on the board and to limit the board access to the campus intranet. Of course, pedagogically, the instructor may very well want to monitor and participate in the board activity since she saw fit to facilitate the board in the first place. In such case, the students should be given some elementary copyright information so that they understand that posting (beyond fair use) copyrighted material without permission is unacceptable.

C. The Digital Millennium Copyright Act

The Digital Millennium Copyright Act of 1998 (DMCA) has added optional procedures for "Internet Service Providers" (which the University is for its community of students and staff so long as it, the University, is not also the content provider). These procedures (after the University achieves some internal educational requirements and appoints an agent for receiving notice) can allow the University to protect itself from liability for the infringing postings of persons not acting in furtherance of university employment and which do not lead to a direct financial benefit to the University. These procedures, if opted for, essentially provide that the University must contact the web-page owner and inform him or her that it has received a valid notice of infringing material on that page. If the page-owner will not voluntarily take down the material, the university must disable access to the material (and, if it has delivered a copy of the complaint to the page-owner, will not be liable to the page-owner for having done so).

Under the DMCA procedures, the page-owner may deliver a timely counter-notification to the university (alleging non-infringement or a mistaken identification and agreeing to accept service of legal process from the complaining party). If the allegations in the counter-notice appear to be correct, the university must send a copy of the counter-notice to the complaining party and state that the removed material will be restored after ten business days (unless the complaining party files in court for a restraining order against the page owner). If any notices or counter-notices are received under the DMCA, the UO Office of General Counsel should be consulted immediately.

Additionally, when no notice of infringement has been received, the DMCA will protect any Internet Service Provider from liability for infringing postings of which is was unaware in its passive roles as a conduit to the Internet or as an electronic repository of user-directed, non-transient information storage. Copyright Act, sec. 512.

... Continue to Part VII