Hannah S. Ross, Esq. Princeton University 1 Libraries in the Digital Age Copyright Issues Oct. 16, 2013

Copyright Protection Defined 2 WHAT? “Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression...”. Copyright Act, 17 U.S.C.A. § 102(a) WHEN? Vests instantly (no © or other notice required). HOW LONG? Lasts for 70 years after the life of the author/creator.

3 Four Factors: 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. (17 U.S.C. §107) “Fair Use”

Factor No. 1: Purpose and Character of the Use 4

Journalistic 5 What Are Your Purposes? Historical Fundraising Commercial Aesthetic

Factor No. 2: The Nature of the Work 6 CreativeFactual

Factor No. 3: Amount and Substantiality 7

Factor No. 4 The Market Effect 8

Fair Use Factors 9 Factors Favoring Fair Use Teaching (including multiple copies for classroom use) Research Scholarship Nonprofit Educational Institution Criticism Comment News Reporting Transformative or Productive Use (Changes the work for new utility)

Fair Use Factors 10 Factors Weighing Against Fair Use Commercial Activity Profiting from the Use Entertainment Bad-faith Behavior Denying Credit to Original Author

11 How Do You Know What Is Fair? “The ultimate test of fair use… is whether the copyright law’s goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it.” Castle Rock Entm’t, Inc. v. Carol Publ’y Group (2d Cir. 1998)

ARL Code of Best Practices in Fair Use for Academic and Research Libraries 12 Office of the General Counsel Princeton University

8 Principles: It is Fair Use to… 13 Support teaching and learning with access to course-related materials via digital technologies Use materials from collections to publicize the library’s holdings and create exhibits Digitize to preserve at-risk items Digitize archival and special collections Reproduce materials in accessible formats for disabled patrons (and retain for future use) Maintain the integrity of works in an institutional repository Create databases for non-consumptive research uses Collect material posted on the WWW and make it available for scholarly use

Using Selections from Collection Materials to Publicize a Library’s Activities, or to Create Physical and Virtual Exhibits Principle Two It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections to promote new scholarship drawing on them. 14 Office of the General Counsel Princeton University

Maintaining the Integrity of Works Deposited in Institutional Repositories Principle Six It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use. 15 Office of the General Counsel Princeton University

Creating Databases to Facilitate Non-Consumptive Research Uses (Including Search) Principle Seven It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes. 16 Office of the General Counsel Princeton University

Collecting Material Posted on the World Wide Web and Making it Available Principle Eight It is fair use to create topically based collections of websites and other material from the Internet and to make them available for scholarly use. 17 Office of the General Counsel Princeton University

The Caveats: ARL recommends that you… Always attribute the source material. Give users information about appropriate usage. There should be a nexus between the educational/research purpose and the kind and amount of content. It should be “appropriately tailored.” Have a simple objection tool. 18 Office of the General Counsel Princeton University

Georgia State University Scores a Victory for Academic Fair Use in Landmark Copyright Case Cambridge University Press, et al. v. Mark Becker is a key, in- depth analysis of how copyright laws will apply in the digital age in the context of higher education. Cambridge University Press, et al. v. Mark Becker In a landmark decision on the nature of copyright law in the digital age, the federal judge ruled May 2012 in favor of officials at Georgia State University on nearly all the copyright infringement claims lodged by a trio of textbook publishers. For the vast majority of claims, the judge concluded that the “fair use” doctrine protected the GSU professor’s decision to allow students to access excerpts of textbooks online through Georgia State’s Electronic Reserves System. 19 Office of the General Counsel Princeton University

Applying “Fair Use” 20 The application of the generally defined factors is highly fact- sensitive and nuanced such that reasonable minds can easily reach different conclusions as to what constitutes a "fair use." Such uncertainty often has a chilling effect on legitimate uses of protected material and thereby frustrates the Constitutional purpose of the Copyright Act. To address this concern, the Act offers additional statutory protections against liability for non-profit educational institutions to the extent their employees are making reasonable, good faith efforts to proceed in a manner consistent with the requirements of the "fair use" exemption.

Q&A 21 ~THANK YOU! Hannah S. Ross, Esq. University Counsel Princeton University