Copyright Policy of EDUcourses.net
EDUcourses.net’s status as an exclusively online educational institution creates unique challenges for crafting and implementing a copyright policy. As a for-profit institution, EDUcourses.net does not qualify for the educational exemptions granted to non-profit academic institutions covering classroom and other instructional uses, performance or display of copyrighted works under the Copyright Act of 1976 (17 U.S.C. § 110).
The exemptions used by libraries and archives (17 U.S.C. §108), while intended by Congress – based on the Act’s legislative history – to cover both for-profit and not-for-profit institutions, likely do not cover “non-library” activities at EDUcourses.net.
The fair-use provisions of the Copyright statute (17 U.S.C. §107) have been interpreted by the courts in ways that offer little practical guidance for for-profit entities. (In one of the most frequently cited cases, American Geophysical Union et al v. Texaco, Inc. the courts found – in applying the “purpose and character of use” standard that comprises one of the four factors for determining fair-use – that copying engaged in by a company library for researcher use was neither for-profit/commercial nor not-for-profit/educational but a new category labeled “intermediate use”).
Widespread disagreement among lawyers, publishers, researchers and libraries about the applicability of this and other related cases – and the unhelpful nature of these decisions for any practical application – makes erring on the “protect everything” side warranted.
More recently enacted copyright legislation – e.g., the TEACH Act and the Digital Millennium Copyright Act – although designed to address some of the concerns of higher education, either does not apply to for-profit entities (TEACH Act) or only applies based on convoluted determinations regarding whether an institution allows materials to be accessed and/or posted on its servers (DMCA).
Traditional academic institutions are also facing additional copyright issues as a result of changing technology. The rapid adoption of course management systems (CMS) throughout higher education has enabled faculty (and students) to circumvent longstanding procedures libraries and university copy centers have put in place to assure copyright compliance for things like course packs and electronic reserves. Accessing course materials posted in the content areas functionality is the most widely used feature of CMSs, introducing a weak link in the system, and making academic institutions vulnerable to publisher charges of copyright infringement.
As an example, Georgia State University system was sued by several publishers for “unauthorized distribution of copyrighted materials” via electronic course reserves, through its course management system(s) and elsewhere:
“Atlanta, April 16, 2008: A group of publishers filed suit in federal court late yesterday to stop widespread copyright infringement at Georgia State University (GSU). The complaint, filed by Oxford University Press, Cambridge University Press and SAGE Publications and supported by the Association of American Publishers (AAP), charges that GSU officials are violating the law by systematically enabling professors to provide students with digital copies of copyrighted course readings published by the plaintiffs and numerous other publishers without those publishers’ authorization. The lawsuit seeks injunctive relief to bring an end to such practices, but does not seek monetary damages.”
“The lawsuit asserts “pervasive, flagrant, and ongoing” unauthorized distribution of copyrighted materials, despite attempts to reach an amicable and mutually acceptable solution without the need for litigation. GSU distributes the unauthorized materials through its electronic course reserves service, its Blackboard/WebCT Vista electronic course management system, and its departmental web pages and hyperlinked online syllabi available on websites and computer servers controlled by GSU.”
The outcome of this case, still unresolved by October 30, 2018 did not provide resolution for nonprofit educational institutions, but whether and to what extent it will ultimately affect for-profit institutions is unclear.
Because EDUcourses.net delivers its class materials through a course management system developed in 2014, it has faced many of the issues and implemented procedures only now being considered by traditional academic institutions. Its existing practice of requiring instructors to submit course materials for uploading to a proprietary course delivery system, and its effort to provide course-specific web links to additional resources in the public domain, provides a centralized process for screening materials and determining the status of works. EDUcourses is formalizing its current efforts and considering the following:
1) Continue to require that instructors funnel all course materials through a centralized process for copyright status verification and protection/licensing. This process will also be used for any subsequent updates or revisions of course materials.
2) Make more systematic use of the Copyright Clearance Center’s “Pay-per-use Permissions” service. This is a time-consuming but necessary step. It is also important to remove copyrighted materials (or get new permissions) at the end of each course session.
3) Restrict access to course materials, including material from any subscription databases purchased in the future, via passwords. The University of Phoenix Library Handbook warns students that content from subscription databases and other materials found through the University Library may not be posted “in online classrooms, Internet newsgroups, listservs, Web sites, or any other means of electronic distribution.” The Handbook clearly indicates that all users of library services must be “authorized users.”
4) Provide faculty and students with guidelines or best practices regarding electronic course content and copyright modeled on those of other academic and publisher sources (e.g., Copyright Clearance Center’s “Using Course Management Systems: Guidelines and Best Practices for Copyright Compliance”, Cornell’s “Electronic Course Content Copyright Guidelines”, Northwestern Law’s “Faculty Policies – Copyright and Distribution of Course Materials”).
5) Clearly post disclaimers, copyright notices. Even for materials that are determined to be in the public domain, some libraries post disclaimers. Most academic libraries (or university offices of general counsel) post a tremendous array of copyright resources on their web sites. While some information is necessary and can be helpful, a balance needs to be reached regarding the educational mission of the university and the responsibilities of faculty, students and the institution for copyright compliance. Instructors are looking for practical advice, as one remarked, “Don’t give me links to 10 legal articles, just tell me if I can or can’t use the material for my course.”
Helpful sites are listed below.