Office of the Chief Information Officer 1 Notes on Copyright and Fair Use Bob Kalal Director, Information Technology Policy and Services Office of the Chief information Officer The Ohio State University Copyright 2003, The Ohio State University

Office of the Chief Information Officer 2 It involves only a relatively small portion of the work. It is for educational or other noncommercial purposes. It is unlikely to interfere with the copyright owner's ability to market the original work. Copyright “Fair Use” in General Generally, the specific use of a work is probably "fair" if:

Office of the Chief Information Officer 3 Copyright “Fair Use” Example “A classic example is quoting a few sentences or paragraphs of a book in a class paper. Other uses may also be fair, but it is almost never fair to use an entire work, and it is not enough that you aren't charging anyone for your particular use. It also is not enough simply to cite your source (though it may be plagiarism if you don't).” Excerpt from Virtual Legality by Steve McDonald, former Associate General Counsel, The Ohio state University

Office of the Chief Information Officer 4 USC TITLE 1, CHAPTER 1, SECTION 107: Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (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 copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Copyright “Fair Use”, The Law

Office of the Chief Information Officer 5 Additional guidelines include: Brevity –Generally use only a very small excerpt, differs by type of material. Spontaneity –The need to copy and use should occur close to the actual class. Cumulative Effect –The effect of all copying must not hurt the market for the copyrighted work. –Copies may be used only for one course in the school where copies are made –Not more than one short poem, article, story, essay or two parts from longer works may be copied from the same author –Not more than three items from the same anthology or collection or periodical volume may be used during the one class term. Copyright Notice and attribution must be included on all copies Use for Face to Face Instruction May be Allowed Under SECTION 110 Even if the Use Fails the Test of the Four Fair Use Guidelines in SECTION 107

Office of the Chief Information Officer 6 Generally extends many of the allowed uses in face to face instruction to digitally-based distance education modes Receiving locations limits broadened - not just single distant classroom setting Requires technical measures to protect the material Fair Use may be a better choice in some cases Aplies only to non-profit educational institutions Use for Distance Education Instruction May be Allowed Under the New Technology, Education, and Copyright Harmonization (TEACH) Act

Office of the Chief Information Officer 7 Unfortunately, the four guidelines are not exactly crisp and clear: The purpose and character of the use, whether such use is of a commercial nature or is for nonprofit educational purposes The nature of the copyrighted work –Published or unpublished? –Text and fact or artistic expression? The amount and substantiality of the portion used in relation to the copyrighted work as a whole –A chapter? A verse? Or both? The effect of the use upon the potential market for or value of the copyrighted work –If you use it will the author or publisher lose a chance to sell it? When can you be certain that your use of copyrighted materials constitutes “fair use”? When is your use fair?

Office of the Chief Information Officer 8 When the judge tells you it is! Someone owns just about everything Fair use lets you use their things - But not as much as you'd like to Sometimes you have to ask for permission Sometimes you are the owner - think about that! From the University of Texas Crash Course in Copyright © 2001 Georgia K. Harper

Office of the Chief Information Officer 9 Did I make fair use of the copyrighted material on the previous slide? I used the material for non-profit educational purposes. The work was published, but the excerpt was artistic in nature. I used a very brief excerpt from a much longer work. I did not likely affect a potential market as the full work is provided freely at no charge on the University of Texas Web site. I think my use was fair use. But I haven’t heard from the judge yet…

Office of the Chief Information Officer 10 cio.osu.edu/policies/legality.html –OSU Attorney’s Primer –Crash Course in Copyright from the University of Texas –Especially Sections 5 and 6 –Includes Fair Use Checklist, Example Scenarios umuc.edu/library/copy.html –Guide to Copyright and Fair Use in the Classroom, on the Internet, and the Web from the University of Maryland Copyright “Fair Use” Web Resources, pt 1

Office of the Chief Information Officer 11 –Guidelines for Multimedia from Penn State –Exhaustive Set of Specific Examples From the University of Georgia System home.earthlink.net/~cnew/research.htm –A Teacher’s Guide to Fair Use and Copyright –Comprehensive Set of References and Links –Award-Winning Copyright Web Site Copyright “Fair Use” Web Resources, Pt 2

Office of the Chief Information Officer New Web Resources on the Technology, Education, and Copyright Harmonization (TEACH) Act

Office of the Chief Information Officer 13 Notes on Copyright and Fair Use Please send new Web Resources - comments and suggestions to: Bob Kalal -