Copyright and Higher Education in the United States, Eileen K. Saner Associated Mennonite Biblical Seminary Elkhart, Indiana, USA March 2007

Copyright Law in the United States ► Authorized by the US Constitution ► Copyright Act of 1976 modernized legislation. ► Digital Millennium Copyright Act ► Sonny Bono Copyright Extension Act ► TEACH Act ► Court cases apply the legislation to actual situations.

Copyright law gives the “author’ of a creative work exclusive rights for a limited time with certain exceptions: ► reproduce and distribute copies of the work. ► create derivative works based on the work. ► perform and display the work publicly.

These rights apply to created works: ► literature ► music ► drama ► dance ► visual art ► motion pictures ► architectural works

These rights do not apply to ► facts ► ideas ► concepts ► processes and procedures ► discoveries ► works created by employees of the US government

Literary or artistic creation must be ► “fixed in a tangible means of expression” ► paper, film, computer disk, artistic medium. Since 1978, display of the copyright symbol © is not required!

How is copyright enforced? ► Copyright holders who believe their rights have been violated take the offenders to court. ► Judges interpret the law to determine whether indeed there has been a violation. ► Users of copyrighted works watch court decisions and adjust their practices accordingly.

How can you determine whether an item is protected by copyright? ► Not a listing of facts (telephone directory) ► “Fixed in a tangible means of expression” ► Not in the “public domain”

Public Domain ► Work not subject to copyright ► Work whose term of copyright has expired May be freely copied, distributed, performed. When Works Pass into the Public Domain by Laura Gassaway, librarian/lawyer

Who holds the copyright? ► Creator of the work ► Publisher who obtained copyright from creator ► Heirs of the creator who have inherited ownership Examine the article to identify. Search the internet for contact information.

Exceptions and Limitations of Copyright ► Fair use ► Reproduction by libraries ► Distance learning ► Performances and displays in face-to-face teaching ► First sale

Fair Use “The fair use of a copyright work, including such use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” From Section 107 of the Copyright Act of 1976.

Four factors the Court must consider: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyright work as a whole; and the effect of the use on the potential market or value of the copyrighted work. 4. The effect of the use on the potential market for or value of the copyrighted work.

“Fair Use” is intentionally vague! “The doctrine is flexible, but its application often is uncertain, as it generally requires consideration of all the facts and circumstances surrounding the particular use of the copyright work at issue. As a result the fair use doctrine has been the subject of numerous court cases.” Campus Copyright Rights and Responsibilities, p. 9

How can fair use be applied? ► Checklist for Fair Use (Indiana University) ► University of Texas Crash Course in Copyright (a clever online tutorial) ► American Library Association tm tm tm ► Copyright Management Center Indiana University/Purdue University

Purpose Favoring Fair Use  Teaching (including multiple copies for classroom use)  Research, scholarship  Criticism, comment  Nonprofit educational institution  Transformative / productive use  Restricted access Opposing Fair Use  Commercial activity  Profiting from the use  Entertainment  Bad-faith behavior  Denying credit to original author

Nature Favoring Fair Use  Published work  Factual or nonfiction based  Important to favored educational objectives Opposing Fair Use  Unpublished work  Highly creative work (art, music, novels, films)  Fiction

Amount Favoring Fair Use  Small quantity  Portion used is not central or significant to entire work  Amount is appropriate for favored educational purpose Opposing Fair Use  Large portion or whole work is used  Portion used is central to work or “heart of the work”  More than necessary for educational purpose

Effect Favoring Fair Use  User owns lawfully acquired or purchased 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 licensing mechanism Opposing Fair Use  Could replace sale of copyrighted work  Significantly impairs market for work or its derivative  Reasonably available licensing mechanism  Affordable permission available for using work  Numerous copies made  Copy made publicly accessible such as on the web  Repeated or long-term use

Guidelines for Classroom Copying for Educational Institutions, 1976 ► Developed by authors, publishers and educators. ► Developed along with the law but not included in the law. ► Excludes sale for profit, more than one semester, more than 9 times in a course. ► Defined brevity, spontaneity, cumulative effect.

Coursepacks ► Photocopied course readings. ► Some educators say it is fair use. ► Publishers say copying is pre-meditated, multiple copies, substitutes for sale of textbooks and is not fair use. ► Courts have found for-profit copy shops to be in violation of the law. ► No academic institution has ever been taken to court.

Electronic Reserves ► Scanned documents on course website; use limited to registered students. ► Educators say it is fair use. ► Publishers claim permission is necessary and require payment of fees.

Cornell University, New York ► Fall 2006, Association of American Publishers threatened to sue the University. ► AAP claimed that professors were posting long passages from expensive textbooks on the internet without limiting access. ► Students could avoid purchasing $100 textbooks so publisher loses money.

University Responds ► Digitizing is copying and is subject to copyright law like a printed coursepack. ► Provide checklist with fair use factors. ► Define “amount” as less than 10%. ► Limit online access to students. ► Urged linking to legally provided copies such as subscription databases. ► Tell students not to make illegal copies.

Statements Put on Scanned Documents to Clarify Fair Use ► This electronic document is provided in accordance with the Fair Use guidelines of U.S. Copyright Act (Title 17 of the United States Code). ► These materials are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated. ► Use of these materials by anyone not enrolled in this course is a violation of copyright law.

What should a seminary do? (1) ► Discourage copying as substitute for purchase. ► Out-of-print is not “public domain”. ► Most books can be purchased online. ► Set up routines for requesting permission when fair use does not apply. ► Always request permission for “all future uses for educational purposes.” ► Establish agreements with Christian publishers to streamline the process.

What should a seminary do? (2) ► When the author is the copyright holder, contact him/her directly and request use without payment. ► Use permissions services (Copyright Clearance Center). ► Acquire and promote online resources. ► Put materials on library reserve shelf when permissions are too expensive.

What should a seminary do? (3) ► Use passwords to limit access to course participants. ► Educate students and faculty. ► Stress need to financially support for authors and publishers. ► Urge faculty to retain the right to copy their own material for class use. ► Establish an institutional policy so that all copying is done in “good faith”, with reason to believe that it is within fair use.