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New Copyright “Combat” Regulations For Colleges and Universities Go Into Effect July 1 - Previous Revision

New federal regulations on copyright enforcement for colleges and universities are effective July 1, 2010. These new regulations, released by the Department of Education (DOE) late last year, focus on the copyright “combat” requirements of the 2008 Higher Education Opportunity Act (HEOA). To read the act itself as well as review the rulemaking process, see http://ed.gov/policy/highered/leg/hea08/index.html. To read the DOE regulations and accompanying deliberations, see the October 29, 2009 Federal Register (FR) http://edocket.access.gpo.gov/2009/pdf/E9-25373.pdf.

The 2008 enacted HEOA contains provisions focusing on illegal filesharing on college and university networks, also known as the “unauthorized distribution of copyrighted material” (7 things, 2010, p.1, http://net.educause.edu/ir/library/pdf/EST1005.pdf). While some colleges may already have measures to monitor and control possible illegal filesharing activities, the new DOE regulations specifically require documentation showing college procedures or efforts. As Educause points out, the new regulations and the HEOA do not change existing copyright law. Instead, they create a clear set of responsibilities specifically for institutions of higher education. The new regulations set forth basic requirements institutions must meet if they wish to retain their Title IV funds. “Title IV funds” generally include the whole range of federal student financial aid such as Pell grants, work study, Stafford, Perkins, Parent-plus loans, and so on. Obviously, since the copyright enforcement requirements are tied to federal student aid, we can expect to see colleges and universities comply with the new regulations by the deadline of July 1, 2010. However, as time passes we might watch the development of policies and procedures at our respective colleges, and of course, look for spaces where we might make contributions as teachers and researchers concerned with writing, learning, and our students’ abilities to access the resources and materials they need to be successful.

The regulations require that institutions of higher education share with students their “institutional policies and sanctions related to copyright infringement” (FR p. 55903). To be more specific:

This information must (1) explicitly inform enrolled and prospective students that unauthorized distribution of copyrighted material, including peer-to-peer file sharing, may subject a student to civil and criminal liabilities; (2) include a summary of the penalties for violation of Federal copyright laws; and (3) delineate the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system. (FR, p. 55926)

The information-providing requirement appears relatively easy to meet. It requires students receive information telling them that the unauthorized distribution of copyrighted materials is illegal, and if they engage in such behavior they could be subject to civil and criminal penalties. This requirement could be met in many ways, but the “warning” that appears at the beginning of most DVDs contains boilerplate language that might be revised or adapted and delivered by colleges and universities to all students in some form (student handbook or digital communication). The penalties for violating copyright law must also be provided to students, but since Title 17, United States Code, commonly referred to as U.S. copyright law, already sets forth the penalties for violating the law, these penalties have been summarized by the DOE in a “standardized version” and will appear in the Federal Student Aid Handbook by the July deadline (7 things, p. 1). The regulations also state that colleges and universities must have their own clear policies and procedures on what they will do if students, using institutional networks, violate copyright law by engaging in the unauthorized distribution of protected material.

Another new requirement is that institutions must have “written plans to effectively combat unauthorized distribution of copyrighted material” (FR, p. 55903). These written plans must have actually been implemented, and, in addition to the requirements to educate students and have an active combat plan, institutions must “offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property” (FR, p. 55903). Part of the requirement that institutions have implemented, written plans to combat infringement, states that such institutions “must include the use of one or more technology-based deterrents” (p. 55910). Although, “no particular technology measures are favored or required for inclusion in an institution’s plans” (p. 55926).

As far as offering legal alternatives, the regulations specifically state that the mere availability or existence of legal alternatives on its own does not constitute offering alternatives as anticipated in the new requirements. Instead, “an institution must periodically review the legal alternatives and make available the results of the review to its students through a Web site or other means” (FR, p. 55910). And so, the DOE is expecting institutions to “be active, rather than passive” to the “extent practicable’’ (p. 55910) in providing students legal alternatives to illegal downloading. Also, associations and commercial entities might develop “up-to-date lists of legal alternatives to illegal downloading” that institutions can reference for “compliance with this provision” in the event they decide not to create their own resource (p. 55910). An example of such a resource is currently offered by Educause (Please see http://www.educause.edu/legalcontent).

Educause has taken the position that the regulations will be easy to meet for most colleges and universities, and that although the new regulations “set a higher bar for compliance than copyright law does,” colleges and universities “have always taken seriously their responsibility to educate students about intellectual property laws and the consequences of violation” (7 things, p. 2). Certainly, in composition studies over a decade ago, scholars such as TyAnna Herrington, Jeff Galin, John Logie, Jim Porter, Janice Walker, and even the CCCC Caucus on Intellectual Property, urged us as writing teachers to help our students gain knowledge of/at the place where copyright and writing intersect.

Our role as writing teachers and researchers might be to follow how the implementation of these new regulations unfold, and seek ways that we can contribute to assure that a “policing” environment does not arise in contrast to an educational learning environment. Of course, the regulations will be open for review and revision as they are implemented, and so some writing teachers might wish to become involved in this process. But presently, Educause rightly argues that since a long rulemaking process has taken place prior to the issuing of the final regulations, these new rules “represent the combined efforts of the higher education community and entertainment industries” (p. 2). The upside to these new regulations is that they require institutional-level support for the copyright education of students, and they provide clear delineation and procedures on what institutions can do to reduce their own liability. A really good resource to consult for further information is: http://www.educause.edu/Resources/Browse/HEOA/34600. Another great resource to further explore copyright’s intersection with teaching is Traci Gardner’s June 15, 2010 Inbox blog post: http://ncteinbox.blogspot.com/2010/06/piecing-together-copyright-puzzle.html.

Submitted by:
Martine Courant Rife, JD, PhD
Professor of Writing, Junior Chair CCCC IP Caucus
Lansing Community College
Lansing, Michigan, USA
martinerife@gmail.com 

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