The Digital Millennium Copyright Act

The Digital Millennium Copyright Act was enacted in 1998 to update copyright law in matters dealing with the electronic/digital environment. Its principle features focus on limitations on infringement liability for service providers and prohibitions on circumvention of technological protection measures. Online education environments are greatly affected by the act provisions. Educational institutions are generally considered as service providers for purposes of the act.

Students can become rather creative when designing websites using educational institution equipment, software, and access to the Internet. Service providers receive certain protections from liability and “notice and takedown” procedures must be strictly and timely followed. Any copyrighted works that are infringed upon by a student using educational institution resources is subject to the act.

If a copyright owner discovers that their copyrighted work is up on a website supported in some way by resources of an educational institution, the copyright owner must file a notification of alleged infringement under penalty of perjury and in accordance with the statutory requirements for notification under the act. Upon receipt of notification, the service provider must swiftly remove or block access to the material identified in the notification or face loss of protection under the act. If the service provider complies, the service provider is then exempt from monetary liability. The act contains special provisions for non-profit institutions for certain acts on the part of instructors and graduate students and considers them “a person other than the provider” and affords protection to the educational institution under the following conditions:

(a) The faculty member or graduate student’s infringing activities do not involve providing access to course materials that were required or recommended during the past three years.

(b) The institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing.

(c) The institution provides all of its users with informational materials describing and promoting compliance with copyright law.

The DMCA is divided into five titles:

1. Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.

2. Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.

3. Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.

4. Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.

5. Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.

There are many facets to the act that cannot be fully discussed in this forum. Suffice it to say, instructors should get with their organizations and their legal counsel to become familiar with the complex intricacies of the act.