ONE (1min)
Hi, how is everyone today? I’m here to talk with you about maintaining BALANCE when walking on that
Copyright Tightrope. I have hand outs for you to use as reference to the information that I am going to speak
about, so please don’t feel like you need to take notes.
TWO (1min)
But first let’s get this out of the way……….. I am not a lawyer, and this presentation is for informational
purposes only………….with any advice you put forth, or on your copyright center page, etc. you should always
include this disclaimer!
Also, as I am addressing some applications in which Fair use analysis is used to show compliance, please
understand that there are no definitive rules, and all titles, works, images etc has to be evaluated on a case by
case basis.
Now, my guess is that you are here because you are either fascinated by copyright or confused by it, in either
case I am happy to see you today.
By way of introducing our topic and adding a little bit of history, I would like to introduce a couple of
gentlemen and their unique takes on copyright regulation.
THREE (1 min)
In the year 1511 Durer, a German artist, must have been terribly plagued by copyright infringement because
he put forth a very strong statement on the matter, which begins: “Hold! You crafty ones, strangers to work,
and pilfers of other men’s brains………” (Patry) Albrecht Durer …….and the rest of his lovely quote is in on the
face of your handout
FOUR (1 min)
The other gentleman is Mark Twain. He had his share of copyright troubles as well and in 1902 he
writes:
Only one thing is impossible for God: to find any sense in any copyright
law on the planet.- Mark Twain's Notebook, 1902-1903
So if you are in the confused group I mentioned earlier you are in good company.
And why shouldn’t we be confused?
Our country’s first copyright policy, was enacted in 1790 in the Colonies, it was loosely based on the England’s
1710 Statute of Anne, and since then it has evolved and been amended many times over, with the last revision
in 1976.
FIVE (1min)
So, in hopes of providing some clarity to the “copyright conundrum,” I am going to talk about the Fair Use
exception. This exception is derived from The United States Constitution, Article 1 Section 8 Clause 8 aka The
Copyright Clause
SIX (3min)
and it states:
~To promote the progress of Science and the Useful Arts, by securing for a limited time to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries~
Now, in order to see the big “copyright picture,” we will need to explore this clause a little bit, break it apart,
and when we do we will see 2 conflicting ideas representing two conflicting parties.
Party A: higher education = PROMOTE PROGRESS= FU gets it authority for the purpose of education and
research: through this clause: to promote the progress
Party B: Publishing Houses, Authors, Copyright Clearing houses = LIMIT AND EXCLUSIVE=this is clause is where
they get their authority as a copyright holders for the exclusive purpose of making money, making derivative
works, etc.
SEVEN (1min)
Now, after having taken the clause apart, the trick is to put it back together and with the expertise of a great
acrobat, walking on a tight rope, we must try to balance the rights of both parties.
EIGHT (2 min)
For such a feat, we will need guidance and training!
Our main instruction for balancing the two sides comes from 17 U.S. Code § 107 and this code is
supplemented by more in-depth instruction from the Georgia Board of Regents copyright policy.
We can also consider other universities to be our fellow acrobats, because they can teach us a few tricks along
the way.
I have often researched how other universities deal with copyright issues in order to get a general consensus
so that I may provide informed advice on compliance questions.
Often times they will have a FAQ’s and or scenarios page which can provides excellent sources of information.
NINE (1min)
Getting back to our goal.
In order to strike a balance between parties we have to comply with the law according to 17 USC § 107, while
at the same time exercising through a good faith effort our fair use rights.
TEN (3 min)
As we look at 17 U.S. Code § 107 which is called, “Limitation on exclusive rights: Fair Use,” please note that in
some case it is not even necessary to worry about whether the use of a source would be in compliance
through fair use or an infringement.
And by first asking a few questions, you can tell if you need to further vet a work through fair use. Consider
these questions:
1. Is a request for permission actually needed, is the work actually under copyright protection?
2. Can you directly link to or provide a link to the work itself? (with of course citation and copyright
notice included)
3. Is it a work created by government employees?
4. Was it published before 1923?
By answering these questions you will know if you need to do a fair use analysis.
ELEVEN (6 min)
After having answered these questions, you find that you do need to evaluate on fair use, here is my very own
phrase with acronym which will has helped me to remember the four fair use factors:
“Using fair use takes the PAIN out of copyright compliance….” Very clever huh, So, let’s look at these factors:
P-purpose and character of the use:
Purpose: Transformative – that’s good, vs derivative – not allowed
Educational - that’s great
vs entertainment – not allowed
Non-profit – that’s even better!
vs for profit – authors exclusive right
Note difference between transformative and derivative: this can be confusing
Transformative work – the material has been taken from the original work and has been transformed, by
adding new expression, meaning or message. Examples=parody, review, commentary, criticism, etc.
Derivative work - based upon one or more preexisting works, examples: a translation, or form in which a work
has been recast, or adapted. A work consisting of editorial revisions, annotations, etc, which as a whole
represent the original work
A-amount and substantiality of the work
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
Measured both qualitatively and quantitatively
Less is best, and don’t take the heart (except in parody)

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No more than 10%, or 1 chapter from 10 chapters
Limited audience of registered students
And for fair use the work needs to be included in the course syllabus as part of the teaching material
I –impact (effect) of the use on the potential market
We are good if


The work does not fill the demand for the original work – a parody of a work does not share the same market as
the original work
the original work is not commercial availability
N-nature of the copyrighted work used
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Consumable vs Non-consumable
Factual Works: biographies
Creative works (harder to justify under fair use)-novels, stories, poems, art
Educational – the easiest to justify
Published works vs unpublished works:
1. Not published: life of author plus 70years
2. Published before 1923: in the public domain
3. Published between 1923 and 1977: protection has expired= public domain
4. Published between 1923 and 1963, not renewed=expired PD
5. Published between 1923 and 1963, renewed-95 years after first publication
6. Published between 1978 and 2002 rules vary
7. Published after 2002: life of the author plus 70 years
TWELVE (2 min)
Now that we have looked at the four factors let’s review how the checklist works: this is how the checklist is set up:
Example of Fair use checklist
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THIRTEEN (1 min)
One more thing to know about the checklist:
Whose responsibility is it????? I am more than happy to help our professors evaluate titles but they are they ones who
sign off on it.
Save checklist for files shows Good Faith Effort
FOURTEEN (4min)
Now that we have reviewed the FU Checklist let’s look at some of it’s applications
Please Note this list is not “all inclusive list” of every consideration for each topic
1) Course Packs , only covering the ones which the University Print Services actually
print
1. Fair Use checklist and Course Pack form filled out(to exempt them from
liability) - on each individual title
2. AND print shop CANNOT make any profit
3. suggest/find alternative (example of last course pack) 3 in library, 4 in links, 3
not found ( hopefully change mindset to reserves and linking)
2) PPR1. Educational video’s usually come with 1 Permission (Film Movement)
2. Okay as long as not open to public and has limited audience of registerd
students-class
3. Needs to be a teaching related activity
4.
3) Images- tricky, they are in the “creatives” areana
1. Use Public Domain images, utilize free sites: http://www.morguefile.com/
2. Always use citation/ attribution
4) ILL- Code of best practices ARL – good information- guidelines are
1. Include a copyright compliance statement, library has to own a copy of
anything loaned
2. Rule of 2 – one article per issue per patron-after that get permission
3. Suggestion of 5 periodicals - 5 articles from a single periodical title (as
opposed to a single issue) per year
4. Suggestion of 5 for non periodicals-no more than 5 copies of articles or
chapters from non-periodical work per calendar year, during entire period of
copyright of work
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FIFTEEN (4 min)
5) E-Reserves
1. Instructors responsible for Fair Use evaluation
2. Own lawfully obtained copy
3. Password protected, limited time
4. Provide a link if possible
6) Orphan Works- works in which you are not able to find any copyright owner
1. Check out Hathi Trust website that organization is piloting an access
program to orphan works
2. If you can’t get permission then try to tailor work to fall within Fair Use, work
cannot be subject to commercial exploitation
3. Replace work with something else
7) Distance Education - http://copyright.columbia.edu/copyright/files/2010/08/checklist-forteach-act-and-distance-education.pdf
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SEVENTEEN (2 min)
Lets look at the public Domain
While fair use is the key to our ability to use many sources, there are alternatives which can be used that
usually require nothing more than proper citation. Public Domain for example, or open access or creative
commons. Fac/staff should always be encouraged to utilize these sources as much as possible.
I want to share a wonderful acronym about Public Domain written by Mary Minow(consult@librarylaw.com) ,
she gave me permission to share it with you all today.
“If it’s in the fridge it is in the Public Domain”
F- facts
R-recipes
I – ideas
D-dedicated works-owner gives explicit permission to Public Domain
G-government docs
E-expired copyright
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EIGHTEEN (2 min)
Now if all else fails, sometimes we will have to try to get permission to use a work or title…
Process for seeking permissions

Outline process
1. Find out/ identify who owns the copyright? Original Author / publisher ( look for © symbol)
2. See Collective Licensing Agencies
3. Permission Letters templates
The most daunting part of this process is just waiting for a response. Please let you fac/staff know that it is
best to plan ahead as much if possible. There are two reasons for this because one you may never get an
answer and the other is that you may receive a negative answer or one which is cost prohibitive which in
either case you or they will need time to find alternative material.
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NINTEEN (1min)
Now I hope I have given you enough information that you will feel confident when it comes your turn to walk
the tightrope, balancing progress on one side and limits on the other!
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TWENTY (1min)
Finally, I turn this conversation over to you for any questions you may have, with the hope that you will go
back to your home institutions with a new clarity and a vision to “promote the progress of Science and Useful
Arts…” as it is our right as educators through the fair use exception!
Questions?