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Copyright Implications for Online Distance Education

November 17-18, 2006
University of the Sacred Heart and the University of Puerto Rico, Rio Piedras
San Juan, Puerto Rico

Audrey Wolfson Latourette, J.D., Professor of Business Law, Richard Stockton College of New Jersey

Introduction
Institutions of higher learning and business organizations increasingly view online distance education as a viable mechanism for the delivery of education.i Distance education has been defined by the U.S. Copyright Office as that “form of education in which students are separated from their instructors by time and/or space,”ii restricting its definition of distance education to “mediated instruction” in which the teacher “actively determines the pace and content, as opposed to unstructured learning from resource materials.”iii Distance education employs a variety of technological media for purposes of delivery and communication, which include interactive television, satellite television, telephone and/or video conferencing, e-mail correspondence and web-based distance learning via the Internet.iv Instruction delivered through the Internet is also variously termed “online learning, virtual learning, Web-based learning, technology-based learning, e-learning, network-based learning and computer-based learning.”v It should be noted that increasingly distance education is being utilized to enhance and complement the traditional face-to-face classroom; this combination of conventional learning coupled with web based asynchronous instruction is termed the hybrid instructional modelvi or the blended course.vii Touted as providing the best qualities of both traditional and distance education, this merged model is viewed by some commentators as the future of distance education.viii

While one may debate whether online distance education will ever successfully replace traditional face-to-face instruction,ix there exists concurrence among many in higher education that online instruction can effectively serve as an innovative complement to traditional offerings. As a consequence, many colleges and universities are encouraging the development by their faculty of online education courses, both as a vehicle to attract a broader student base and enhance the profitability of the institution and to posture themselves as institutions on the cutting edge of technology. Faculty are intrigued by the seemingly endless possibilities afforded by the Internet and the potential for enriching class offerings in an innovative fashion. What faculty may not consider are the copyright issues inherent in the online delivery of courses, or even when evincing sensitivity to the copyright implications, may lack the requisite tools to properly address the issues.x

Definition of Copyright
Historically, the source of copyright law emanates from Article I, Section 8, clause 8 of the U.S.Constitution which grants Congress the legislative power to provide for the granting of copyrights and patents to “promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Copyright protection endeavors to achieve this progress by awarding incentives to authors in order that they continue to produce intellectual and creative works. Thus, for a limited time designated by Congress the author may protect his economic interests in his intellectual property by pursuing infringement litigation against those who utilize his expression without permission, licensure or payment. In exchange for this protection, upon the termination of the copyright period, the work enters the public domain in order to promote the distribution of knowledge and ideas and stimulate further creative activity.xi Eliminated completely from the scope of copyright protection are those ideas which have not been translated to a tangible form, procedures, processes, methods of operation, concepts, principles, or discoveries.xii Copyright law, in essence, affords a monopoly for a limited time to those artists who create works such as books, paintings, sculptures, architecture, software, movies and music, among others.xiii It provides the copyright holder the ability to derive commercial benefit from the copyrighted material, reproduce and distribute copies of the work, create derivative works based on the copyrighted work, perform and display the work publicly, and to determine what parties and under what circumstances others may lawfully make copies of the copyrighted work.xiv

The definition of protectible works capable of receiving copyright protection has been extended to include the courseware (technology) and course content (professor’s lectures) utilized in distance education.xv It should be noted that courseware, as defined by Columbia University in its Copyright Policy,xvi is independent of the course content and encompasses the tools and technologies utilized to present the course content. This distinction proves relevant when one addresses issues of ownership, which shall be discussed below, of such copyrightable property.

Fair Use Exception and Teacher’s Exemption
A thorough understanding of the fair use exception and teacher’s exemption pursuant to 17 US Code 107 is crucial to determining when one may reasonably avoid the strictures of the Copyright Act of 1976, both within the traditional classroom and in distance education, with respect to utilizing an author’s work without permission. Fair use is inextricably intertwined with the notion of the teacher’s exemption as articulated in Section 107 of the Copyright Act which states: “The fair use of a copyrighted work…. for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Further, Section 110 (1) of the Copyright Act affords exemptions for teachers for classroom copying and permits, in the context of a traditional face-to-face classroom in a nonprofit educational institution, the teacher to utilize the performance or display of copyrighted works. In order for the faculty member to copy or display works without infringing copyright, however, he or she must still comply with the requisites of fair use. Misinterpretation and misuse of this concept abounds in academia as many espouse the incorrect notion that a nonprofit educational institution is afforded a carte blanchexvii with regard to distributing copies of copyrighted work both within and without the classroom or displaying or performing copyrighted works as long as it has an educational purpose, is not done for profit and/or as long as the original author was cited.

Technology Education and Copyright Harmonization Act (TEACH Act)
Recognizing that a disparity existed between the traditional face-to-face classroom and distance education,xviii and seeking to further enhance the educator’s ability to employ relevant copyrighted material in online education, Congress recommended in the Digital Millennium Copyright Act of 1998 (which implemented treaties signed in 1996 at the World Intellectual Property Organization conference)xix that a study should be conducted by the Register of Copyrights to promote distance education while maintaining balance between the copyright holders’ wish to protect their markets and the educators’ desire to integrate protected works into online courses. The legislative solution to this dilemma resulted in November of 2002 in the amendment to the Copyright Act of 1976 entitled Technology Education and Copyright Harmonization Act (TEACH Act) embodied in an expanded version of 17 US Code Section 110 (2). The TEACH Act broadens the scope of copyrighted materials that faculty can digitally transmit in both distance education courses, and in the hybrid or blended modes of learning where online materials are utilized to supplement traditional face-to-face teaching, to include the entire performance of nondramatic literary or musical works, or reasonable and limited portions of any other work, and the display of a work in an amount comparable to that which is typically displayed in a traditional classroom.

In response to the concerns of copyright holders alarmed about the potential for the unlawful dissemination of their protected expressions via distance education, the TEACH Act imposes additional requirements and constraints upon those faculty and institutions that utilize distance education and that wish to benefit from its statutory scheme.

Ownership Issues
The author/creator of copyrightable materials is indeed the holder and hence, owner, of the creative expression he or she has devised, and it is that person who is granted the exclusive rights delineated above. Traditionally, institutions of higher learning have deemed all copyrightable materials that a faculty member authors, which includes books and articles, and course content such as class lectures and class handouts, as the property of the faculty member (although Stanford asserts in its copyright policy that it is the owner of courses taught and courseware developed for teaching at Stanford).xx This tradition of allowing faculty to claim ownership of their work is one that emanated from case law. It is not at all clear that the Copyright Act of 1976 adopts that tradition.xxi

The ownership issue proves more complex when one considers its implications in online education. The substantial time demands placed upon faculty in creating and maintaining an online course, and potential economic rewards, prompt faculty to seek copyright ownership.xxii Yet in creating course content and particularly, courseware for distance education purposes, the efforts of many persons such as programmers and graphic designers are usually implicated.xxiii Therefore, the potential exists that several parties may assert ownership claims with respect to the courseware requisite for online endeavors.

Formalizing Copyright
As noted earlier, ownership of copyrightable materials is asserted immediately upon the creation of the original, tangible expression of the work of art without the necessities of any accompanying formalities. It is advisable to formalize one’s copyright, however, for several reasons. Firstly, it offers additional evidence that one is indeed the holder of the copyright. Further, in order to obtain statutory damages for infringement of one’s copyright as provided by the Copyright Act, which obviates the need for one to actually document the extent to which one was harmed by the infringement (lost profits), one’s copyright must be formally registered with the Library of Congress, of which the Copyright Office is a division, at the time the infringement occurred.

Public Domain
Misconceptions are commonly held with respect to one’s ability to copy, distribute and display materials, such as photographs, that are available on the Internet. The assumption that a downloadable photograph, for example, is in the public domain and can be utilized in an online course as long as it is properly cited is not supportable. Nor can one assume that one is free to disseminate via hard copy or electronically the textual or graphic work that is available to view, download or print.xxiv Simply stated, one cannot assume any material posted on the Internet is within the realm of public domain unless the author at the site expressly states that it can be copied without permission.

Orphan Works
Particularly perplexing for those faculty who desire to advance the exposure of copyrighted works for teaching purposes, and for those authors who seek to utilize prior works as the foundation for new creative works is the dilemma that is confronted with copyrighted works whose owners are difficult or impossible to locate, even where a good faith effort has been mounted to identify them. The use of such copyrighted works, deemed orphan works, is fraught with uncertainty and economic risk, as the potential liability of a copyright infringement lawsuit exists. For those third parties who have fostered the works, expending efforts to distribute, commercialize, preserve, or afford access to them, the specter of the copyright owner looming on the litigation horizon serves as a deterrent to constructive use of the orphan works.

Linking to Advertised Websites
Instructing students in a distance education course to view material on an advertised website via a hot link from a menu page in the online course does not constitute copyright infringement. Even deep linking, or sending the students to a page within the designated website rather than the home page should constitute no copyright problem. It should be noted, however, that some controversy may arise with respect to linking to an internal page of a website and thus avoiding the paid advertising that may appear on the site’s home page, leading the owner of the site and/or the advertisers to seek redress.xxv

Securing Permission to Use Copyrighted Material
Notwithstanding the fair use doctrine and the TEACH Act, some institutions persist in the belief that the safest way to integrate copyrighted materials into course offerings in the traditional classroom or in distance education is to secure permission or licenses for the copyrighted works. New York University, School for Continuing and Professional Education, for example, has a policy of requiring licenses and utilizes the TEACH Act as a backup in the event a faculty member neglects obtaining a license.xxvi Of course, this utilization of the TEACH Act as support can only be relied on if the institution has comported with the parameters of the statute and has the appropriate protective technology in place.

Federal Exemption for State Colleges/Universities
from Copyright Infringement
There presently exists, pursuant to four U.S. Supreme Court decisions in the 1990s, substantial uncertainty as to whether public universities are subject to infringement actions due to the exemption afforded them by virtue of the sovereign immunity encompassed in the Eleventh Amendment to the Constitution.xxvii The very state colleges and universities which profit immeasurably via the copyrights awarded their works of original expression arguably, unlike their private university counterparts, can infringe the copyrights, patents and trademarks of others with impunity. The Register of Copyrights in a 2000 presentation before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary observed that until the quartet of rulings the law of sovereign immunity had never before been used to exempt states from any of the remedies available under the Copyright Act.xxviii Deeming the current situation “unjust and unacceptable,” the Register urged Congress to use its tools “to prevent the successful assertion of state sovereign immunity where it has become a tool of injustice.”xxix

Conclusions and Recommendations
Copyright law as embodied in the Copyright Act of 1976 and its subsequent amendment, the Teaching Education and Copyright Harmonization Act of 2002 (TEACH Act) provide a complex arena within which colleges and universities must operate. Whether one seeks to integrate copyrightable materials into the traditional face-to-face classroom, the hybrid or blended course, or employ the intellectual property of others in online distance education, the parameters of these statutes must be understood and communicated to faculty and students.

Therefore, it is suggested that all colleges and universities establish a broad ranging comprehensive copyright policy that will extend beyond the typical contractual conclusions regarding ownership of copyrightable material. It is important that all institutions of higher learning follow the more comprehensive path for the following reasons: (1) One primary requisite of the TEACH Act is that the college or university, in order to avail itself of its benefits, must have implemented a thorough copyright policy which it communicates to all parties on campus; (2) Were a college or university or its faculty to be sued for copyright infringement, a viable defense mechanism termed “good faith fair use defense”xxx wherein one asserts that one reasonably believed that what they did was a fair use, would prove more credible if the individual could genuinely assert that he or she were adhering to the college’s existing copyright fair use policy; and (3) Adopting such an inclusive policy would demonstrate to the entire college or university that for both ethical and legal reasons, copyright law should be accorded the highest priority.

Recommendations for Copyright Policy Implementation
An all encompassing copyright policy which would address the nuances of intellectual property issues relevant to colleges and universities, particularly for the large research institutions, is beyond the scope of this article. And while the recommendations set forth below reference the guidelines of various institutions of higher education in an attempt to assure that suggestions made are consistent with the “industry standards” reflected in those documents, it is very clear that the TEACH Act affords an institution broad discretion to fashion a copyright policy that is compatible with its mission. The primary thrust of the TEACH Act is that the college demonstrate through its copyright policy an intent for all of its members to comport with the mandates of copyright law, and to be educated with respect to rights and responsibilities arising from the Copyright Act of 1976 and its amendments, to establish guidelines concerning frequently encountered issues such as fair use in the traditional classroom and through distance education technologies, and to clarify the requirements imposed by the TEACH Act. Therefore, the following suggestions are intended to serve solely as a framework of issues for individual institutions to consider as they develop their own copyright policies.

(1) A Standing Committee for Copyright Policy. It is advisable that a standing, rather than an ad hoc,xxxi committee be established whose initial mission would be to create the comprehensive copyright policy.

(2) Compliance Statement. The Association of American Universities suggests that policies that are formulated or amended to focus on intellectual property related to new information technologies, or new media, should begin by restating and reaffirming the core mission of the institution.xxxii

(3) Fair Use Doctrine. So inextricably intertwined is the notion of fair use with copyright law, particularly as applied to the traditional classroom, as well as its online distance education counterpart, that it is essential that a copyright policy set forth the responsibilities of the faculty, staff and students to become more fully apprised about copyright protections and the fair use doctrine.

(4) Ownership Issues. The range of ownership issues to be addressed in an intellectual property policy is quite broad, encompassing works such as books and articles traditionally regarded as the property of the faculty, to distance education courses that involve information technology, where the construction of the product is a far more complex endeavor, thus complicating the definition of ownership.xxxiii

(5) Ownership Disputes. The copyright policy should establish straightforward procedures by which disputes between the faculty and the college regarding ownership of copyrighted works can be resolved.

(6) Conflict of Interest and Commitment Principles. Integrally related to the issue of ownership of copyrighted works in the distance education arena, in particular, is the question of whether a faculty member at a university can develop an online distance education course for a competing institution.xxxiv

(7) TEACH Act Guide. Any broad based copyright policy that is adopted by an institution, it is further suggested, should address and clarify issues related to the TEACH Act such as designating and/or defining: what works may be lawfully transmitted in a distance education course; what constitutes “limited and reasonable” use of dramatic literary or musical copyrighted materials in online distance education as set forth in the TEACH Act; and in what fashion must a faculty supervise a mediated instructional activity.

On April 7, 2006, U.S. Senate Resolution 438 was introduced which served as a testament to Congressional recognition of the need for higher education institutions to set the standard for deterring and eliminating copyright infringement.xxxv Noting that colleges and universities are “uniquely situated to advance the importance and need for strong intellectual property protection,” the Resolution urges that “colleges and universities should take a leadership role in educating students regarding the detrimental consequences of online infringement of intellectual property rights.”xxxvi Adoption of a comprehensive copyright policy will demonstrate the institution’s recognition of the intellectual property rights of others and its commitment to the enforcement of all laws related to such rights.

This article contains excerpts from Audrey Wolfson Latourette, “Copyright Implications for Online Distance Education,” 32 The Journal of College and University Law 613-654 (2006). Copyright 2006 by The National Association of College and University Attorneys and The Notre Dame Law School. Reprinted by permission. Any reprints of this article in any form (including electronic) must be done without any changes or deletions and must contain this paragraph.


i See “Is Online Higher Education Right for Corporate Learning?” 59 Training and Development 44-47 (Sept. 2005) wherein respondents to a survey, which sought to identify the perceptions of senior executives regarding the role of online higher education in corporate learning, indicated that a majority anticipated continued growth in their organizations for online learning.

ii See U.S. Copyright Office, “Report on Copyright and Digital Distance Education” 10 (1999).

iii Id.

iv Alex Koohang, “Students’ Perceptions Toward the Use of the Digital Library in Weekly Web-Based Distance Learning Assignments Portion of a Hybrid Programme,” 35 British Journal of Educational Technology 617-626, 618 (2004). See also American Association of University Professors, “Statement on Distance Education,” (1999), available at http://www.aaup.org/statements/Redbook/DistanceEd.HTM (last visited Aug. 7, 2006).

v Seung-won Yoon, “In Search of Meaningful Online Learning Experiences,” 100 New Directions for Adult and Continuing Education, 19-30, 20 (Winter 2003). Yoon notes that the term e-learning is most commonly used in corporate settings. Id.

vi Koohang, supra note 4 at 618.

vii Alfred Ho, “Testing the Reluctant Professor’s Hypothesis: Evaluating a Blended-Learning Approach to Distance Education,” 12 Journal of Public Affairs Education 81-102, 83-84 (Winter 2006). Ho describes courses that combine synchronous traditional learning with asynchronous distance learning as blended learning distance education. He classifies blended learning into three types: (1) a course that blends in-class and online learning activities for a single group of students; (2) the face-to-face course taught by in-class and online instructors; and (3) the course which blends online students and face-to-face students who interact with each other and participate in the same class. Id. Nancy D. Zeliff defines a blended course as that which utilizes an online course management system and unites more than one section of the same course; in contrast, she defines a hybrid course as a face-to-face course that incorporates online features using a course management system. “Business Education Methods – A Splendid Blended Course,” 60 Business Education Forum 54-56, 54 (February 2006).

viii Ho suggests that the blended format will become pervasive in distance education for it integrates the strengths of traditional and distance learning by affording more course design flexibility and time flexibility with learning activities, and by offering the opportunities for increased interaction among students and between students and instructors. Id. at 83. But see Saxon G. Reasons, “Hybrid Courses – Hidden Dangers?” 8 Distance Education Report 3 (April 2004) whose research indicates that changing modes between online and traditional instruction can prompt confusion about class expectations among students who may face greater challenges than confronted in either an oncampus course or a completely Internet based offering.

ix Despite predictions that the Internet will profoundly and unalterably lead to the demise of the free standing four year college, Cleborne D. Maddux asserts that there will “always be undergraduate students who need and desire the social aspects of traditional, on-campus attendance.” “Developing Online Courses: Ten Myths,” 23 Rural Special Education Quarterly 27, 29 (Spring 2004). Simon Marginson urges that replacing face-to-face delivery of education with online distance education is very difficult because traditional institutions benefit from “tradition and habit;” moreover, mass online education, to be economically viable, must achieve a very large market share. “Don’t Leave Me Hanging on the Anglophone: The Potential for Online Distance Higher Education in the Asia-Pacific Region,” 58 Higher Education Quarterly 74, 89 (April 2004).

x Cleborne D. Maddux observes that a number of myths and misconceptions have arisen with respect to the online delivery of courses. One of the most dangerous, he contends, is the myth that copyright issues are not a concern in distance education. Supra note ix, at 31.

xi John A. Shuler, “Distance Education, Copyrights Rights, and the New TEACH Act,” 29 The Journal of Academic Librarianship, 49-51, 49 (January 2003).

xii 17 US Code 102 (b) (1976).

xiii 17 US Code 102 (a) and 103 (1976). The types of works protected, as articulated in the statute, include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works, and compilations and derivative works to the extent they exhibit original authorship, without implying any exclusive right in the preexisting material employed in the work.

xiv 17 US Code 106 (1976).

xv The Copyright Act of 1976 mandates that a potentially copyrightable work must be both “original” and “fixed in a tangible medium of expression.” 17 US Code 102 (a) (2000). Commentators have noted that the subject matter that falls within the purview of copyrightable material under this statutory definition has been expanded and includes authorship of on-line course materials. The course components taken as a whole would qualify as original works of authorship and the components of an online course, “to the extent they embody material entered into a computer, should meet the fixation requirement as defined by MAI Systems Corp. v. Peak Computer, Inc., 991 F. 2d 511 (9th Cir. 1993).” Roberta Rosenthal Kwall, “Copyright Issues in Online Courses: Ownership, Authorship and Conflict,” 18 Santa Clara Computer and High Technology Law Journal 1 (2001). In MAI, the Ninth Circuit held that a copy of copyrighted software created in a computer’s random access memory met the fixation requirement since it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Kwall, quoting the Ninth Circuit Court, at 8.

xvi See “ Columbia University Copyright Policy,” available at www.columbia.edu/cu/provost/docs/copyright.html
(last visited Aug. 7, 2006).

xvii See, for example, an article which describes the “unfettered” rights of instructors to use “any and all copyrighted materials without permission.” Judy Dahl, “Working With – and Around - the TEACH Act,” 8Distance Education 1, 4-6 (March 1, 2004). The fact that despite “fair use” professors may still feel constrained in the classroom with respect to the use of copyrighted materials is evident in the attempt three University of Pennsylvania professors made in requesting that the U.S. Copyright Office afford faculty greater freedom in the use of copyrighted DVDs for film classes. See Anne Dobson, “Professors to Challenge Copyright Law,”Daily Pennsylvanian, (March 21, 2006) at 1-2.

xviii One commentator described the pre-TEACH Act copyright laws covering distance education as “draconian” in that the distance educator was only permitted to use displays such as still images as slides or video frames and nondramatic literary or musical works such as textbook pages, poetry, symphony or pop music. Dahl, supra note xvii, at 1, citing Dr. Fritz Dolak, copyright and electronic resources librarian at Ball State University.

xix The Digital Millennium Copyright Act implemented two World Intellectual Property Organization treaties: the WIPO Copyright Treaty and the WIPO Performance and Phonogram Treaty, both of which “require member countries to provide protection to certain works from other member countries or created by nationals of other member countries.” See The Digital Millennium Copyright Act of 1998, available at www.loc.gov/copyright/legislation/dmca.pdf (last visited Oct. 10, 2005).

xx See Stanford University, “Copyright Policy,” Section F, available at www.stanford.edu/dept/DoR/rph/5-2.html (last visited Aug. 7, 2006). In contrast, the copyright policy of the University of Michigan states that the university may claim ownership of faculty-created instructional materials or courseware, including online course materials, where “the University has specifically requested such materials and either invested unusual University resources in them …or specifically compensated faculty-creators” with additional measures such as added compensation or release time. See University of Michigan, “Ownership of Copyrighted Works Created at or in Affiliation with the University of Michigan,” Section C (1) (b) available at www.copyright.umich.edu/official-policy.html (last visited Oct. 8, 2005).

xxi Courts have split on the issue of whether the Copyright Act of 1976 incorporated the teacher exception, with most concluding that it did not survive the codification. See Georgia Harper, of the Office of General Counsel, University of Texas System, “Copyright Law in Cyberspace,” available at www.utsystem.edu/ogc/intellectualproperty/cybrscen.htm (last visited April 12, 2005).

xxii Developing an online distance education course encompasses tasks that include: modifications to instructional strategies and assignments, the learning of a course management tool and software, and preparation of lectures with streamed video and audio. See Zeliff, supra note vii, at 56.

xxiii Andrea L. Johnson, “Reconciling Copyright Ownership Policies for Faculty-Authors in Distance Education,” 33 Journal of Law and Education 431, 436 (October 2004).

xxiv See Simmons College, “Technology, Web-related Copyright Information,”available at http://my.simmons.edu/services/technology/policies/copyright.shtml (last visited Oct. 9 2005).

xxv Trinity University’s “Copyright Policy” addresses “hyperlinking” between sites and notes “ there exists a general presumption of open access, by anyone, to any page that someone has posted on the Web.” The policy further notes that bypassing a site’s opening page may raise objections on the part of the owner and advertisers. See http://www.trinity.edu/departments/its/policies/appropriateuse.asp (last visited Aug. 7, 2006).

xxvi Kristine H. Hutchinson, Note, “The TEACH Act: Copyright Law and Online Education,” 78 NewYork University Law Review 2204, 2234 (2003).

xxvii See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (wherein the Court ruled that Congress lacked the authority under Article I of the Constitution to abrogate the States’ Eleventh Amendment sovereign immunity from suit in federal courts under the Indian Gaming Regulatory Act); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings. Bank, 527 U.S. 627 (1999) (wherein the Court invalidated the Patent and Plant Variety Protection Remedy Clarification Act whose purpose was to abrogate state immunity for patent infringements); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., (wherein the Court invalidated the Trademark Remedy Clarification Act); and Alden v. Maine, 527 U.S. 706 (1999 (wherein the Court barred a Fair Labor Standards lawsuit against Maine due to the sovereign immunity which the state enjoys). The Register of Copyrights noted that “[f]or most of our history, it has been assumed that the States enjoyed no special immunity from suits for infringement of intellectual property rights, but in the past fifteen years those assumptions have been called into question.” Statement of Marybeth Peters, “State Sovereign Immunity and Protection of Intellectual Property,” available at http://www.copyright.gov/docs/regstat72700.html (last visited Aug. 3, 2006). It is interesting to note that the abovenoted Supreme Court decisions reflect a series of 5-4 opinions with rather vehement dissents.

xxviii Id., Statement of Marybeth Peters.

xxix Id.

xxx 17 US Code 504 (c) (2). A successful application of this defense would permit a court discretion to refuse to award any damages even if the copying exceeded the boundaries of fair use. See University of Texas System, “Fair Use of Copyrighted Materials,” available at www.utsystem.edu/ogc/intellectualproperty/copypol2.htm (last visited April 24, 2005).

xxxi The Association of American Universities Intellectual Property Task Force recommends the formation of a standing committee. See “Intellectual Property and New Media Technologies: A Framework for Policy Development at AAU Institutions,” available at http://www.aau.edu/reports/IPReport.html (last visited Aug. 7, 2006).

xxxii Id.

xxxiii See discussion of ownership issues, supra, notes xx-xxiii.

xxxiv See Michael W. Klein, “ ‘ Sovereignty of Reason:’ An Approach to Sovereign Immunity and Copyright Ownership of Distance-Education Courses at Public Colleges and Universities,” 34 Journal of Law and Education 199 (April 2005) which discusses the conflict that arose when Harvard Professor Arthur Miller created a set of video lectures on civil procedure for an online degree granting law school, Concord University School of Law.

xxxv S. Res. 438, April 7, 2006, submitted by Senators Alexander, Leahy, Hatch and Nelson, available at http://thomas.loc.gov/cgi-bin/query/z?c109:S.RES.438: (last visited June 27, 2006).

xxxvi Id. It should be noted that Congress in this Resolution is responding to the unauthorized peer-to-peer file sharing conducted by college and university students. It reflects, nonetheless, a clear recognition of the value and importance of intellectual property protection in encouraging creativity and innovation, and the need for such institutions of higher education to develop policies that educate and encourage respect for protecting intellectual property rights.

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