COPYRIGHT in the AGE of ANYTHING GOES SIDLIT 2012, August 2-3, 2012

ACADEMIC FAIR USE: A LEGAL HISTORY Leslie Reynard, Ph.D., Sarah Ubel, J.D., Ph.D., Washburn University, Topeka Kansas

Intellectual Property Copyright –Ability to control copying and exploitation of an original idea for a certain period of time BooksMapsCharts EngravingsPrintsMusic Dramatic worksPhotographsPaintings DrawingsSculptureMotion pictures Sound recordings Choreographyarchitecture

Intellectual Property U.S. Copyright Law –No paperwork –Attaches immediately –70 years after death of “author”

Intellectual Property Exceptions: –Fair Use –Academic Fair Use

The TEACH Act (2002) “Technology, Education and Copyright Harmonization Act” –Amends Sec.110(2) of the Copyright Act Focus: –distance education –rights / responsibilities of the institution Updates and modernizes previous legislation (re. “closed circuit TV”) Addresses “unique uses”: –Scans –Web sites – . –Web-links. –Electronic forums

The TEACH Act (continued) Accredited non-profit institution Institutional copyright policy Provide informational materials Provide notice to students Limit access: only enrolled students

The TEACH Act (continued) Relevant to Instructors: –Permits more “performance” types –Explicitly excludes some performances –Mandates instructor’s direction and control of materials used –“Digital transmission” must be part of “mediated instructional activities” –Prohibitions on conversion of analog materials to digital formats

What Is Fair Use? Fair Use Checklist developed by: Copyright Advisory Office Columbia University Libraries Kenneth Crews, Director

Fair Use Checklist: PURPOSE FavoringOpposing Teaching (including multiple copies for classroom use) Research Scholarship Nonprofit educational institution Criticism Comment News reporting Transformative or productive use (changes the work for new utility) Restricted access (to students or other appropriate group) Parody Commercial activity Profiting from the use Entertainment Bad-faith behavior Denying credit to original author

Fair Use Checklist: NATURE FavoringOpposing Published work Factual or nonfiction based Important to favored educational objectives Unpublished work Highly creative work (art, music, novels, films, plays) Fiction

Fair Use Checklist: AMOUNT FavoringOpposing Small quantity Portion used is not central or significant Amount is appropriate for favored educational purpose Large portion or whole work used Portion used is central to “heart of the work”

Fair Use Checklist: EFFECT FavoringOpposing User owns lawfully purchased or acquired copy of original work One or few copies made No significant effect on the market or potential market for copyrighted work No similar product marketed by the copyright holder Lack of a licensing mechanism Could replace sale of copyrighted work Significantly impairs market or potential market for copyrighted work or derivative Reasonably available licensing mechanism for use of the copyrighted work Affordable permission available for using work Numerous copies made You made it accessible on the web or in other public forum Repeated or long-term use

Posting Materials On-Line Allowed If: –Instructor owns the copyright –Material is linked, not copied –Copyright owner gives permission –Material is in the public domain –Use falls within “fair use” [see “Checklist”] –Use conforms to other legal exception

Fair Use of Electronic Media Copyright protection in a non-digital form extends to all digital forms of that material See: Using Digital ContentUsing Digital Content

The Public Domain (Generally) Short phrases Facts and theories Ideas Government works Expired copyrights Lost copyrights

Public Domain Calculator Source:

Related Resources for Online Educators The Campus Guide to Copyright Compliance Peer to Peer University (P2P)Peer to Peer University Copyright 4 Educators (US) Fair Use Checklist (Columbia University)Fair Use Checklist Code of Best Practices for Fair Use in Scholarly Research in CommunicationCode of Best Practices for Fair Use in Scholarly Research in C Taking the Mystery Out of Copyright (U.S. Library of Congress)Taking the Mystery Out of Copyright

Susan Stuart Director of Online Education, Kansas City Kansas Community College

What’s The Current Copyright Climate? Cost to defend a copyright infringement case Renewed interest in enforcement by current federal administration Changes to the laws by recent court decisions and new technologies Recent Ruling in Cambridge University Press, et al vs. Georgia State

Unsecure e-reserves Posting without payment Copying from semester to semester Policies that are too vague and overly generous Failure to enforce The Case Against Georgia State

Judges Decision Ruling handed down May 13, 2012 Mostly a victory for the GSU Only five of the 99 copyright infringements violated plaintiff’s copyrights

Four Factors of Fair Use in GSU Case Factor One: The Purpose and Character of the Use –Teaching and scholarship and by nonprofit educational institutions Factor Two: The Nature of the Copyrighted Work –All of the works at issue were nonfiction and educational in nature

Four Factors of Fair Use in GSU Case Factor Three: Amount and Substantiality of the Portion Used –If the amount is small enough it doesn’t effect the market –Less than 10% Factor Four: The Effect of the Use Upon the Potential Market –If there's a licensing market, that favors the rights holder

Mark S. Reference/Copyright Librarian

Bright Line Copyright Zero Risk Solutions

Comparing Risks: Fair Use

Hammocks Fair Use

Comparing Work Fair Use Hammocks fairuse.stanford.edu/images/FairUseTest.gif

Principles for Avoiding Risk and Work 1.Face-to-face teaching 2.The Human Shield 3.The Unprotected 4.Already Purchased

1.Face to Face Teaching Scenario: The general counsel for the MPAA has enrolled in your class. You stream Space Jam from NetFlix and show it, in its entirety, to your class over 2 class sessions.

2. The Human Shield Perfect 10, Inc. v. Amazon.com INC – Court of Appeals, 9 th Curcuit scholar.google.com/scholar_case?case= &hl=en&as_sdt=2&as_vis=1&oi=scholarr scholar.google.com/scholar_case?case= &hl=en&as_sdt=2&as_vis=1&oi=scholarr

3. The UnProtected search.creativecommons.org doaj.org

Scenario: Students in your American Literature course will be reading Moby Dick, The Scarlet Letter, and Uncle Tom’s Cabin. You copy-paste the text of the novels from your Kindle editions into MS word, print off copies, and sell them to your students for a profit.

4. Already Purchased Example Librarians

Scenario: Denying permission, a publisher directs you to the Copyright Clearance Center to purchase permission to upload the results of the Milgram experiment (1964) to the BlackBoard site for your 250 student Psychology lecture class.

QUESTIONS? Questions?