COPYRIGHT LAW
Reclaiming Fair Use: A Balancing Act
Title V-B Champions
Faculty Success Center, Tech Building 4th Floor
January 15, 2013
Tatjana Martinez, JD
tatjana@nova.edu
954-262-8484
Fair Use - Section 107
Allows limited use of copyrighted materials without permission or payment ,
when the benefit to society is larger than the damage to the copyright holder.
FIRST Amendment Protection
However, not all uses in an academic context are automatically considered fair use.
One must apply the Factors
on a case by case basis: the
four-factor test (Sec 107 of
the 1976 Copyright Act.1)
1. Purpose & Character of Use
2. Nature of Copyright Work
3. Amount & Substantiality of Use/Work as a whole
4. Effect of Use on market or value of the Work/Excessive
economic harm
http://www.centerforsocialmedia.org/ocw
2
Use Common
Sense: It is
the best
practice!
KNOW THE
LAW…FAIR USE
is not an
exception to
Copyright
compliance, it
is a “legal
defense”
Set Policy and Abide
by it
Types of copyright infringement
Direct infringement – unauthorized copying of
copyrighted work…i.e., copy a poem, take a video,
Indirect infringement
• Contributory infringement – enable students, e.g.
• Providing protected access code
• Vicarious infringement- ability to control the action
• “Respondeat superior” – let the master answer—attaches to
the institution
4
DMCA: Digital Millennium Act 1998
DMCA has five titles. The first four impact postsecondary
educational institutions
Align U.S
Copyright Law
with the World
Intellectual
Property
Organization
(WIPO)
Copyright
Treaty,
Performances
& Phonograms
Treaty
Online
Copyright
Infringement
Liability
Limitation
Computer
Maintenance
or Repair
Exemption
Miscellaneous
Provisions
lead to:
TEACH ACT
2002.
Also, allows
libraries and
archives to
take advantage
of digital
technologies
http://counsel.cua.edu/fedlaw/dmca.cfm
Creates a
new form of
protection
for the
design of
vessel hulls.
[Perfect
example of
an unrelated
amendment
to a bill that
was sure to
pass]
DMCA: Overview
BALANCES interests of internet service providers (ISP) and
copyright owners when infringements occur in a digital
environment (DE) by the users. Includes penalties.
Protections are in place for the ISP if they follow certain
conditions. An ISP must take steps when aware that
infringing materials reside on its network:
• Adopt and implement a policy
• Policy must provide for termination of repeat infringers
• Accommodate standard technical measures used by copyright owners to protect
copyrighted works
http://www.dmca.harvard.edu/copyright_policy.php
TEACH ACT (2002)
1. Amends sections 110(2) and 112(f) of the U.S. Copyright Act.
2. TEACH Act
• Seeks to balance the perspectives of both copyright owners and content users, and
• Provides guidance for today's academic institutions, for
• Special digital uses, such as online distance learning and course management systems,
require special attention.
• Facilitates and enables the performance and display of copyrighted materials for distance
education by accredited, non-profit educational institutions (and some government entities)
that meet the Act's qualifying requirements:
• Must have developed and publicized its copyright policies, specifically informing students
that course content may be covered by copyright, and include a notice of copyright on the
online materials.
• Primary purpose is to balance the needs of distance learners and educators with the rights
of copyright holders. TEACH applies to distance education that includes the participation of
any enrolled student, on or off campus.
http://www.copyright.com/Services/copyrightoncampus/basics/teach.html
7
Fair Use/TEACH ACT
Summary
Balancing Act…
• De minimis Use (10% or less)
• Transformative (repurposing, adding new
parts for a new audience…)
• Distance Education (by non-profit educational
institution)
• Enrolled Students in a specific term(exclusive
user)
Georgia State University
The Case
http://www.infodocket.com/2012/05/12/full-text-ofcourt-opinion-in-georgia-state-university-copyrightcase/
The Fair Use Checklist
http://www.usg.edu/copyright/fair_use_checklist/
GSU, the Case
IN THE UNITED STATES DISTRICT COURT, FOR THE NORTHERN DISTRICT OF
GEORGIA, U.S.OJ> . Atlanta. MAY 11 2012. ATLANTA DIVISION
“Significant not only for GSU, but for all educational fair use in general”
WHY?
Kerry L. Heyward, the university's chief lawyer, added that the case
"highlights the importance of fair use in providing academic faculty a costeffective, legal way to spread important knowledge to their students.“
GSU
Fair Use Checklist
Identifies factors to consider that favor
fair use and factors that do not. It is a
roadmap. If the favoring factors
outnumber those against it, reliance on
fair use is justified. Where fewer than
half the factors favor fair use, permission
form the copyright holder is needed.
http://www.usg.edu/copyright/fair_use_checklist/
Factor 1
Purpose and Character of Fair Use
Weighs in Favor
of Fair Use
Weighs Against
Fair Use
Nonprofit Ed. Institution
Commercial activity, profit from use
Purpose of Teaching and/or Scholarship or
Criticism, Comment, News Reporting, or
Parody
For public distribution
Noncommercial, nonprofit, ed. use
Used for entertainment
Transformative (changes work for new
utility or purpose)
Mirror image copy
Necessary to achieve ed. purpose
Use exceeds what is necessary to
achieve ed. purpose
Factor 2
Nature of Copyrighted Work
Weighs in Favor
of Fair Use
Weighs Against
Fair Use
Published Work
Unpublished Work
Factual/informational &
educational in nature
or nonfiction
Fiction or highly creative
(art, music, novels, films,
plays, poetry)
Non-consumable
Consumable (workbook, test)
Factor 3
Amount & sustainability of Portion Used
Weighs in favor of
Fair Use
Weighs Against
Fair Use
De minimis 10%
Large portion used (more than 10%)
Portion used not central or significant
to entire work as a whole
Portion used is central to Work,
“heart of the work”
Amount taken tailored to legitimate
purpose in the course
Amount taken is more than necessary to
accomplish demonstrated legitimate
purpose
Access limited to students enrolled in
course for only the term.
Access no limited to students
Factor 4
Effect on Market for Original Work
Weighs in Favor of
Fair Use
Weighs Against
Fair Use
Permission for digital excerpt is not
easily available at reasonable price
Permission readily available
Decidedly small portion used
Large portion or entire work used
User owns lawfully acquired copy
User does not own lawfully
acquired copy
Use stimulates market
Use impairs the market or
potential market of original work.
2012 AND BEYOND…
SOCIAL NETWORKING…
• YouTube videos
• Google Plus (social layer…other sites
overlap)
• FaceBook
• Twitter
• Tegrity Campus
• Others?
Lecture Capture Technology
Campus Technology Nov. 2012 digital edition:
http://campustechnology.com/Articles/2012/11/27/Who-OwnsCaptured-Lectures.aspx?Page=1
Lectures use images, video, works from other sources,
each with their own CopyRight issues. OK if students
enrolled in the class know and agree to it.
Who owns
faculty
lectures
NSU is not an open-content university
lectures are part of the content of the class
"Basically,
what the policy says is that any materials created using
our resources belong to us"
On Capturing Guest Speakers…
Have them sign a release...anytime a
person will be recorded and that
recording may be re-used…need release
Recap
KNOW THE LAW…FAIR USE is
not an exception to Copyright
compliance, it is a “legal defense”…
SET POLICY AND ABIDE BY IT
USE OF COMMON SENSE is the best
practice
Where to go?
• A Campus Guide
http://www.copyright.com/Services/copyrightoncampus/intro
/index.html
• BITLAW Legal Resource at
http://www.bitlaw.com/copyright/fair_use.html
• Center for Social Media, Teaching Materials, and more…
http://www.bitlaw.com/copyright/fair_use.html
• Code of Best Practices at …
http://centerforsocialmedia.org/sites/default/files/document
s/pages/code-of-best-practices_arl_0.pdf
• Creative Commons at http://creativecommons.org/education
20
LINKS TO MORE INFO
•
•
•
•
•
Copyright on Campus.
http://www.youtube.com/watch?v=2UWaQK5Wbvs&feature=relmfu
Copyright for Educators, Introduction Episode 1.
http://www.youtube.com/watch?v=554FnAnK1Ik&feature=related
Copyright for Educators- Internet and Web Episode 4, Part 2.
http://www.youtube.com/watch?v=HQHc18Li9EU&feature=relmfu
Copyright for Educators (Fair Use).
http://www.youtube.com/watch?v=2lUPiYvHsJc&feature=related
Reclaiming Fair Use, new book Professors Patricia Aufderheidi (Center for Social
Media) and Peter Jaszi (Washington College of Law at American University).
University of Chicago Press
21
LINKS TO MORE INFO, Cont.
•
Georgia State case:
http://www.infodocket.com/2012/05/12/full-text-of-court-opinion-in-georgia-state-university-copyright-case/
http://chronicle.com/article/PublishersGeorgia-State/131876/
http://www.the-digital-reader.com/2012/05/13/landmark-copyright-decision-defends-fair-use/
http://blogs.library.duke.edu/scholcomm/2012/05/12/the-gsu-decision-not-an-easy-road-for-anyone/#comments
http://lj.libraryjournal.com/2012/05/copyright/georgia-state-copyright-case-what-you-need-to-know-and-what-it-means-for-e-reserves/
http://www.arl.org/pp/ppcopyright/codefairuse/faq-libs.shtml#gsueffcode
http://www.usg.edu/copyright/fair_use_checklist/
http://counsel.cua.edu/fedlaw/dmca.cfm
•
The laws:
http://www.uiweb.uidaho.edu/eo/dist12.html
http://fairuse.stanford.edu/primary_materials/legislation/teach.html
http://fairuse.stanford.edu/charts_tools/
22
LINKS, Cont.
•
Fair Use:
http://www.stfrancis.edu/cid/coprbay/fairuse.htm
http://horizon.unc.edu/projects/resources/intellectual_property.asp
http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf
http://brandeis.libguides.com/content.php?pid=12355&sid=1745458
http://w2.eff.org/IP/eff_fair_use_faq.php
http://www.teachingcopyright.org/handout/fair-use-faq
http://www.adec.edu/admin/papers/fair10-17.html
http://www.centerforsocialmedia.org/libraries#code
•
E-reserves:
http://www.ala.org/advocacy/copyright/fairuse/fairuseandelectronicreserves
http://library.uoregon.edu/reserves/copyrightfaq.html
23
LINKS, Cont.
•
Distance education:
http://www.copyright.gov/reports/de_rprt.pdf
http://copyright.columbia.edu/copyright/special-topics/distance-education/
http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/federallegislation/distanceed/teachactbest.cfm
http://assets.opencrs.com/rpts/RL33516_20060706.pdf
•
Center for Social Media:
Challenges in Employing Fair Use in Academic and Research Libraries
http://centerforsocialmedia.org/fair-use/best-practices/other/challenges-employing-fair-use-academic-and-research-librarie
Statement of the Fair Use of Images for Teaching, Research, & Study
http://centerforsocialmedia.org/fair-use/best-practices/other/statement-fair-use-images-teaching-research-and-study
Fair Use Language for Course Syllabi
http://centerforsocialmedia.org/fair-use/related-materials/teaching-materials/fair-use-language-course-syllabi
Fair Use Question of the Month: Digitizing & Streaming Videos from University http://centerforsocialmedia.org/blog/fair-use/fairuse-question-month-digitizing-streaming-videos-university-libraryibrary
FAIR USE: Best Practices
http://www.centerforsocialmedia.org/fair-use
24
References
•
•
•
•
•
•
•
•
World International Property Organization Retrieved from
http://www.wipo.int/freepublications/en/intproperty/450/wipo_pub_450.pdf
Fair Use in Copyright. Retrieved from
http://www.bitlaw.com/copyright/fair_use.html
http://www.wipo.int/freepublications/en/intproperty/450/wipo_pub_450.pdf
Best Practices in Fair Use. Retrieved from :
http://www.centerforsocialmedia.org/ocw
Journalists, Fair Use and Copyright: SPJ and Principles , Posted by Patricia
Aufderheide, March 27, 2012. Retrieved from
http://www.centerforsocialmedia.org/blog/fair-use/journalists-fair-use-andcopyright-spj-and-principles
http://www.webpronews.com/are-you-blogging-within-your-fair-use-rights-201005
http://www.copyright.com/Services/copyrightoncampus/intro/index.html
http://www.copyright.com/Services/copyrightoncampus/basics/teach.html
25