THE NOTICE AND TAKE DOWN PROVISIONS OF THE DMCA: NON-PROFIT EDUCATIONAL RULES

IVAN HOFFMAN, B.A., J.D.


        In “The Notice And Take Down Provisions Of The DMCA,” I wrote extensively about the statutory rules regarding the application of the statute to normal “service providers.”  Rather than repeat that entire article, you should read it first.  However, the statute has a special section dealing with non-profit educational institutions which are such service providers.

        The statute provides that if a faculty member or graduate student who is an employee of the institution and is performing a teaching or research function, that faculty member or graduate student shall be “considered a person other than the institution.”  This means that as to the first two areas of service provider activity (transitory communications and system caching), the institution is not charged with the knowledge of the faculty member or graduate student as to any infringing materials.

        Further, as to the other 2 areas (storage of materials and information location tools), the knowledge of the faculty or graduate student is not attributable to the institution provided:

(A) such faculty member’s or graduate student’s infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student;

(B) the institution has not, within the preceding 3-year period, received more than two notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and

(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright.

        These exemptions are clearly designed to further the free communication of ideas within the educational system but some important limits are also clear:

        1. These exemptions do not apply to any for profit educational organizations; and
        2. Would seem to exclude graduate students not bona fide employees of the institution.  So, for example, if a graduate teaching assistant for a professor was paid by the professor or was paid by the institution as an independent contractor, perhaps the exemptions might not apply.

Conclusion

        An institution, even if it nominally falls within the exemption provisions of the statute must still have a system in place to deal with notices received from copyright claimants so that the 3 year provisions above do not bar resort to this exemption.

© 2001 Ivan Hoffman

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship.
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