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

What to do so you don’t end up in the pokey! or What to do so you don’t end up in the pokey!

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!

Digital Millennium Act Copyright CONFU Digital Millennium Act Fair Use TEACH Act

Outline Copyright issues for educators - general Copyrights in the digital age Digital Millennium Act TEACH Act Fair Use Copyright case study Copyright - ownership issues

U.S. Constitution, Article I, Section 8 Patent and Copyright Clause The Congress shall have Power … 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 …

Copyright - Title 17 of the US Code 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 The genius of United States copyright law is that, in conformance with its constitutional foundation, it balances the intellectual property interests of authors, publishers and copyright owners with society's need for the free exchange of ideas. from: Fair Use In The Electronic Age: Serving The Public Interest

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

Individual liability for infringement 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.....

But … don’t give up!

Copyright law is designed to "to promote the Progress of Science and useful Arts." In many instances you can legally use copyright protected materials for your educational activities.

Fair Use Sec. 107. - Limitations on exclusive rights: Fair use (1976) 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.

Fair Use The law offers four factors to evaluate and balance in any determination of fair use: The purpose of the use, including a nonprofit educational purpose; 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 Checklist “Checklist” with guidelines that faculty can use to help determine “fair use” Prepared by the Indiana University Copyright Management Center Kenneth D. Crews, Associate Dean - Faculties for Copyright Management Dwayne K. Buttler, Senior Copyright Analyst Indiana University - Purdue University, Indianapolis  

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

Fair Use Guidelines - Nature Favoring Fair Use Opposing 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 by: Buttler & Crews, Indiana University, 1999

Fair Use Guidelines - Amount Favoring Fair Use Opposing Fair Use Small quantity Portion used is not central Amount is appropriate for favored educational purpose Large portion or whole work used Portion used is central to work or significant to entire work or "heart of the work" by: Buttler & Crews, Indiana University, 1999

Fair Use Guidelines – Effect Favoring Fair Use Opposing 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 Affordable permission available for using work Numerous copies made You made it accessible on Web or in other public forum Repeated or long term use by: Buttler & Crews, Indiana University, 1999

Copyright and Fair Use in the Digital Age

Fair Use in the Digital Age The meaning of fair use becomes much more rigorous when the 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. 

CONFU Conference on Fair Use - November 1998 CONFU: “. . . to bring together copyright owners and user interests to discuss fair use issues and develop guidelines for fair uses of copyrighted works by librarians and educators.”

CONFU Fair Use guidelines for educational multimedia Proposals for fair use guidelines for digital images and some aspects of distance learning Statement of scenarios dealing with library use of computer software

CONFU “As CONFU concluded, it was clear that fair use was alive and well in the digital age, and attempts to draft widely supported guidelines will be complicated by the often competing interests of the copyright owners and the user communities.”

Digital Millennium Act The DMA of 1998 was the foundation of an effort by Congress to implement US treaty obligations and to move the nations copyright law into the digital age.

DMA Highlights New Rules Prohibit Circumvention of Technological Protection Measures Prohibits alteration of information imbedded in digital works by copyright owners Online Service Provider Limitation on Liability Section 108 Update: updating of library and archival preservation rules

DMA Highlights (cont.) Distance Education: The Copyright Office is commissioned to study the issues associated with distance education utilizing digital networks and report back to Congress by April 28, 1999. Views of copyright owners, educators and libraries will be solicited on seven key topics.

Technology, Education, and Copyright Harmonization Act TEACH Act Technology, Education, and Copyright Harmonization Act

TEACH Act Provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium.

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 The new law offers many improvements over the previous version of Section 110(2), but in order to enjoy its advantages, colleges, universities, and other qualified educational institutions will need to meet the law’s rigorous requirements.

TEACH Act - Duties of Institution Accredited nonprofit institution Institutional copyright policy in place Provide copyright information to “faculty, students, and relevant staff members.” Notice to students re copyright Access by enrolled students only

TEACH Act – Benefits to faculty Primary benefit of TEACH act is that it redefined 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 Nothing in the TEACH Act is intended to limit or otherwise alter the scope of the fair use doctrine. Senate Report (107-31) accompanying the TEACH Act

Copyright Management Center Indiana University- Purdue University TEACH Act Checklist for Compliance with the TEACH Act Checklist/worksheet for faculty to use in making copyright decisions. Copyright Management Center Indiana University- Purdue University

Fair Use in the Digital Age Distance education and digital technologies have pushed the envelope of copyright law. However, fair use and, if applicable, the TEACH act provide fairly definite guidelines and or protection for academics involved in educational activities.

Case Study

Fair Use Case Study Professor Jones wants to post an article from a recent copy of Newsweek on her course Web page. Is this legal?

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

Fair Use Case Study To determine whether it is fair use, she must consider and weigh in the balance 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 Opposing Fair Use Favoring Fair Use Commercial activity Profiting from the use Entertainment Bad-faith behavior Denying credit to original author Teaching (including multiple copies for classroom use) Research Scholarship Nonprofit Educational Institution Criticism Comment Transformative use (changes work for new utility) Restricted access Parody by: Buttler & Crews, Indiana University, 1999

Fair Use Case Study Purpose: The Newsweek article is a "key component" of her educational objectives, and thus, the purpose of the use is strongly educational. Teaching at a nonprofit institution strengthens her educational purpose. This conclusion is further reinforced by limiting access to enrolled students. An educational purpose generally favors fair use, but an educational purpose alone will not make the use "fair". But, what if . . .

Fair Use Case Study Professor Jones charges an access fee for the article solely to recover her costs. Is this a "commercial purpose?" On one hand, a commercial purpose will weigh heavily against fair use. On the other hand, merely recovering the costs of producing your work does not necessarily equal a "commercial purpose." Typically, a commercial purpose is found in situations where profiting from the work is demonstrated.

Fair Use Case Study Your best bet: Don’t blur the line. Try to keep money out of the transaction.

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

Fair Use Case Study Nature: This factor often is misunderstood. It asks about the "nature of the copyrighted work," not the work you created. In this example, your work is the Web page that contains the copyrighted Newsweek article. "Nature" asks about that Newsweek article, not your Web page.

Fair Use Case Study Nature (cont.): The nature of works may range from pure facts to highly creative works. Here, you would ask is this magazine article a "pure" creative work, weighing against a fair-use determination, or whether it is a statement of facts, weighing in favor of a fair-use finding. A news article is normally predominately "fact." By contrast, a musical work, a movie, or a novel is often highly creative and less appropriate for fair use.

Fair Use Guidelines - Amount Favoring Fair Use Opposing Fair Use Large portion or whole work used Portion used is central to work or significant to entire work or "heart of the work" Small quantity Portion used is not central Amount is appropriate for favored educational purpose by: Buttler & Crews, Indiana University, 1999

Fair Use Case Study Amount: This factor involves the amount used from the copyrighted work. Using a whole work tends to weigh against fair use, but including only small portions may weigh in favor of fair use.

Fair Use Guidelines – Effect Favoring Fair Use Opposing Fair Use 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 Web or in other public forum Repeated or long term 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 by: Buttler & Crews, Indiana University, 1999

Fair Use Case Study - Effect Passwords and access limitations may favor a fair-use finding, since sales of this Newsweek issue should not be affected. On the other hand, Newsweek magazine may market the issue in digital form. Then the professor's use may supplant sales, or more importantly, may affect the potential market for electronic licensing of the article. Newsweek also may easily and affordably license permissions to place articles on your Website. But, what if . . .

Fair Use Case Study - Effect You contact Newsweek magazine, and it is unwilling or unable to license any electronic uses of this article. Thus, you have no other way to use this article in your educational mission absent the rights of fair use. Requesting permission and receiving a denial cannot alone destroy a finding of fair use. In fact, it may support a fair-use finding by allowing you to pursue your otherwise unattainable educational purpose.

Fair Use Case Study Professor Jones uses the Newsweek article in her course Web page. After the course is completed she removes the article from her Web page.

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

Probably yes! Fair Use Case Study But, she would be smart to contact Newsweek and find out if she can get permission to use the article. Since she has 9 months before the class is taught again she should make an effort to obtain permission for use of the article. What about other copyright protected works you want to use in your courses?

Fair Use Case Study Copyright Permission? Who do you call?

Copyright Clearance Center Fair Use Case Study Copyright Clearance Center

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

Intellectual Property Rights Each University has it’s own guidelines “Instant Copyright” “Work For Hire”

UAB “Ownership of Intellectual Property Rights Policy” (Section 7.13 UAB Faculty Handbook and Board of Trustees Rule 509)

UAB If the material/content was created as part of this persons scope of employment then 7.13 applies. If the material/content was created using UAB resources then 7.13 applies.

UAB UAB Research Foundation The University protects Web-based content by filing copyrights or by setting forth the legend: All rights reserved Copyrighted by UAB 2003 or UAB © 2003 All rights reserved.

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

Conclusions New statues provide some benefits but they also have some added restrictions. Fair Use is very ambiguous But ambiguous can be good!!! Common sense and logic will probably hold you in good stead!

Resources Copyright Essentials for Librarians and Educators Kenneth D. Crews

Resources UT Crash Course in Copyright IUPUI Copyright Management Center Medical Education Resource for Instructional Technology (MERIT) on http://PEIR.net

MERIT

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

Questions? pga@uab.edu