Peter G. Anderson, DVM, PhD Professor of Pathology Director of Pathology Undergraduate Education University of Alabama at Birmingham Copyright and Fair Use for Educators in the Digital Era

Disclaimer: I am NOT a lawyer... I am an educator! Don’t use your last quarter to call me for bail money if you get thrown in jail!

Outline Copyright issues for educators - general Copyright in the digital age Fair Use Digital Millennium Copyright Act TEACH Act Ownership issues Copyright case studies

US Constitution “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;... “

“The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” -- Justice Sandra Day O'Connor (Feist Publications, Inc. versus Rural Telephone Service Co.,1991) Copyright - Title 17 of the US Code

Since I’m just using it for teaching … it must be OK!

The court can award up to $100,000 for each separate act of willful infringement. Willful infringement means that you knew you were infringing and you did it anyway. Ignorance of the law is no excuse. If you don't know that you are infringing, you still will be liable for damages - only the amount of the award will be affected. Then there are attorneys' fees..... Individual liability for infringement From : University of Texas “Crash Course in Copyright”

Copyright Guidelines How do you determine what is legal to use in your teaching?

Sec Limitations on exclusive rights: Fair use (1976)... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Fair Use – originally enacted in 1909 From: Legal Information Institute

The law offers four factors to evaluate and balance in any determination of fair use: The purpose of the use; The nature of the work; The amount of the work copied; The effect of the copying on the potential market for, or the value of, the original work. From: Copyright Essentials for Librarians and Educators, by Kenneth D. Crews, 2000 Fair Use - Guidelines

New Paradigms in the Digital Era

Fair Use in the Digital Age The meaning of Fair Use becomes much more rigorous when digitized materials are uploaded to Websites and made globally accessible, whereby the content may be downloaded, altered, and further transmitted by others anywhere in the world.

Conference on Fair Use – 1995 to 1998 (CONFU) Digital Millennium Copyright Act – 1998 (DMCA) Fair Use in the Digital Age

TEACH Act T echnology, E ducation, a nd C opyright H armonization Act (November 2002)

TEACH Act Provides educators with a separate set of rights in addition to Fair Use, to display and perform others' works. These rights apply to any work, regardless of the medium. From: Univ. Texas Copyright Crash Course

TEACH Act Objective: strike a balance between protecting copyrighted works, while permitting educators to use those materials in distance education. If educators remain within the boundaries of the law, they may use certain copyrighted works without permission from, or payment of royalties to, the copyright owner - and without copyright infringement.

TEACH Act - Duties of Institution Accredited nonprofit institution Institutional copyright policy in place Provide copyright information to “faculty and relevant staff members.” Notice to students regarding copyright Access by enrolled students only From: Kenneth D. Crews for the American Library Association

TEACH Act – Benefits to faculty Primary benefit of TEACH act is that it redefines the “digital classroom” to include Web based and asynchronous instruction rather than limiting teaching to the paradigm of closed-circuit TV based distance education.

TEACH Act – Benefits to faculty Expanded range of allowed works Permits display of nearly all types of works Expansion of receiving locations Distance education/Web based/asynchronous Storage of content Short term retention (duration of course) Digitalization of analog works Only if digital version is not available

TEACH Act - Duties of Faculty Cannot use materials specifically developed (by someone else) for distance education without permission. Statute mandates instructor’s participation in the planning and conduct of the distance instruction Material is an “integral part of class session.” Material “directly related to content of teaching session”

TEACH Act From: Senate Report (107-31) accompanying the TEACH Act Nothing in the TEACH Act is intended to limit or otherwise alter the scope of the Fair Use doctrine.

Distance education and digital technologies have pushed the envelope of copyright law. However, Fair Use and, if applicable, the TEACH Act provides guidelines and/or protection for academics involved in educational activities. Fair Use in the Digital Age Conclusions

New statutes provide some benefits but they also have some added restrictions. Fair Use guidelines are very flexible and they tend to be ambiguous But flexible is good!!! Conclusions Common sense and logic will probably hold you in good stead!

Intellectual Property Rights Who owns what you create?????

Intellectual Property Rights Copyright protection begins the moment an original work is “fixed in a tangible medium of expression.” The author is the de facto copyright holder unless other issues come into play. From: NCSU Libraries “Copyright Tutorial” No need to register and no © sign required

Intellectual Property Rights Each University has it’s own guidelines for “ownership”. “Work for hire” The American Association of University Professors also has a policy regarding ownership of academic works. “Academic freedom”

Faculty Ownership “Institutions typically take the position - as a matter of academic tradition, institutional policy, or both - that a faculty member owns the copyright in textbooks, journal articles, and other scholarly works he or she writes for publication.” Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations. Authored by representatives of the Association of American Universities, the Association of Research Libraries, the Association of American University Presses, and the Association of American Publishers 2005

Intellectual Property Rights The best recommendation is to clarify issues in writing before you create materials that you wish to copyright protect. Many Universities have contract templates that you can fill out prior to starting a project to obtain a ruling on copyright ownership. Univ. Texas Course Materials Master Agreement Indiana Univ. – Purdue Univ. Memorandum of Understanding Assuring Rights of Use of Instructional Materials

Fair Use Case Study Modified from: Indiana Univ. - Purdue Univ. Copyright Management Center

Fair Use Case Study Professor Jones wants to post an article from the Journal of Biological Chemistry on her course Web page Is this legal?

Fair Use Professor Jones is aware that copyright applies automatically to the article from the moment it was created. Does she need permission from the publisher to use the article, or is it fair use?

Fair Use Case Study To determine whether it is fair use, she must consider four factors: the purpose of the use; the nature of the work; the amount used; the effect of the use on the market for the original article.

Fair Use Guidelines - Purpose Favoring Fair Use Teaching (including multiple copies for classroom use) Research Scholarship Nonprofit Educational Institution Criticism Comment Transformative use (changes work for new utility) Restricted access Commercial activity Profiting from the use Entertainment Bad-faith behavior Denying credit to original author Opposing Fair Use Modified from: Buttler & Crews, Indiana University, 1999

Fair Use Case Study Purpose: educational, nonprofit institution, limiting access to enrolled students. An educational purpose generally favors fair use, but an educational purpose alone will not make the use "fair". For Dr. Jones...

Nature: This factor often is misunderstood. It asks about the "nature of the copyrighted work," not the nature of the work you created. Fair Use Guidelines - Nature

by: Buttler & Crews, Indiana University, 1999 Favoring Fair Use Published work Factual or nonfiction based Scholarship Important to favored educational objectives Unpublished work Highly creative work (art, music, novels, films, plays) Fiction Opposing Fair Use

Fair Use Case Study Nature: The nature of works may range from pure facts to highly creative works. Pure creative work, weighs against a Fair Use determination, while a statement of facts, weighs in favor of a Fair Use. A research article is normally considered as predominately "fact."

Fair Use Guidelines - Amount Favoring Fair Use Small quantity Portion used is not central Amount is appropriate for the educational purpose Large portion or whole work used Portion used is central to work or significant to entire work or "heart of the work" Opposing Fair Use

Fair Use Case Study Amount: Using a whole work tends to weigh against fair use, while including only small portions may weigh in favor of fair use.

Fair Use Guidelines – 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 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 Numerous copies made You made it accessible on Web or in other public forum Repeated or long term use Opposing Fair Use

Fair Use Case Study - Effect JBC is an “open access” journal. Everyone has access to the articles published in this journal. So, use of this article on Dr. Jone’s Web page would have no effect on the market value of the work.

Dr. Jones’ Score Card Purpose - OK Nonprofit, teaching, scholarship Nature – OK Published work, factual article Amount – OK One article, germane to class Effect – OK Open access journal

Fair Use Case Study Dr. Jones decided to put the article on her Web site. She puts a link to the JBC Web site and students download the article for themselves. But what if... ?

Fair Use Case Study – Scenario #2 Professor Jones wanted to post an article from the Journal of Molecular and Cellular Cardiology on her course Web page.

JMCC is not an open access journal

Charge per article

Dr. Jones’ Score Card #2 Purpose - OK Nonprofit, teaching, scholarship Nature – OK Published work, factual article Amount – OK? One article, germane to class Effect – No Usage charge

Fair Use Case Study Professor Jones decides NOT to use the JMCC article and instead uses the JBC article in her course Web page. After the course is completed she removes the link to the article from her Web page.

Fair Use Case Study Professor Jones wants to use the same article again next year. Can she use it again?

She should take down (archive) her Web site until the next time she teaches the course. Also, she should try to get permission to use the article for subsequent classes. Fair Use Case Study Probably yes – but get permission! How do you obtain permissions? Fair Use Case Study

Copyright Clearance Center

Creative Commons Copyright “ lite ” Authors register materials and assign usage restrictions

Summary Copyright Fair Use TEACH Act

Copyright and Fair Use in the Digital Era Is alive and well! Conclusions

Copyright and Fair Use are designed as ‘guidelines” rather than definitive rules. Common sense and logic will probably hold you in good stead! Conclusions

Copyright Essentials for Librarians and Educators By Kenneth D. Crews Director, Cornell Copyright Information Center Resources

UT Crash Course in Copyright Cornell Copyright Information Center Resources Links to other resources: Medical Education Resource for Instructional Technology (MERIT)

MERIT

Fair Use Guidelines by: Buttler & Crews, Indiana University, 1999

Questions?