Empowering Access Through Understanding Copyright Bobby Glushko University of Michigan Copyright Office

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Empowerment Clause To “promote the progress of science and the useful arts..” Congress gives authors “the exclusive right to their respective writings and discoveries.”

Bargain

Exclusive Rights Section 106

Rights Granted Reproduction Adaptation Distribution Performance Display

Fair Use Section 107

Four Factors Purpose and Character of the Use Nature of the Work Amount Used Effect on the Market

Particularly Protects Comment and Criticism Non Commercial Uses “Library” Uses Educational Uses

No protection against... Bad behavior Bad faith

Slight Detour Bad facts make bad law Good facts can be unstoppable

Case by case

Four Factors Purpose and Character of the Use Nature of the Work Amount Used Effect on the Market

Purpose and Character Commercial vs. Non-commercial Comment or Criticism Education Parody or Satire

Four Factors Purpose and Character of the Use Nature of the Work Amount Used Effect on the Market

Nature of the Work Creative vs Functional

Four Factors Purpose and Character of the Use Nature of the Work Amount Used Effect on the Market

Amount Used No bright lines Less is more likely to be fair use

Four Factors Purpose and Character of the Use Nature of the Work Amount Used Effect on the Market

Important, but not dispositive

Secret 5 th Factor Are you a bad guy?

Section 108

Section 110 TEACH Act Attempts to modernize copyright law Some protection for distance education

Face to Face Education Lots of leeway to use copyrighted works No replacement for buying books Must use lawfully obtained copies.

TEACH Act Allows for digital transmission of films “Reasonable and limited...”

TEACH Act Allows for transmission of still images

TEACH Act Allows for transmission of or reading of non- dramatic literary works So, no plays...

TEACH Act Does not apply to materials designed for distance education

TEACH Act Cannot be used to replace normal book purchases

Digital Millennium Copyright Act (DCMA) Substantial changes to the Copyright Act Some not really relevant...

DMCA Cannot break “copy protection” Very limited exceptions

Anti-Circumvention Region coding? Still unsettled Wildly unpopular

Easy, right? Copyright is challenging Substantial protections under the law Significant obstacles to normative behavior

Options? If only there were alternatives...

Do Academics Own their (c)? Work for hire provision in the © act. Arguably applies to academic work.

For more... Alissa Centivany, Paper Tigers: Rethinking the Relationship Between Copyright and Scholarly Publishing 17 MICH. TELECOMM. TECH. L. REV (2011)

Current Publishing System Universities pay faculty to produce content Faculty provides peer review and other services Universities pay publishers for the content their faculty produce

Creative Commons Alternative to “all rights reserved...” More effectively manage rights

Push back on publishers Make use of author's addenda Be informed about the publisher's practices Publish in open access journals where possible/practical

Engage your library Librarians are highly service oriented Seek high service for faculty Encourage them to provide OA

Thank you! Bobby Glushko University of Michigan Copyright Office