1. Copyright in Scholarship and Instruction
Gail McMillan, Michelle Young FDI 2004
University Libraries, Virginia Tech
U.S. Consitution
Article I Section 8 | Clause 8 - Patent and Copyright Clause of the Consitution.
[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."
We will review rights and obligations outlined in US copyright law and cover the four criteria that must be addressed under the Fair Use Guidelines. If there is interest we can also review the TEACH Act and discuss what may be different for teaching and learning in the distributed environment. We will also review of some of the key resources that can help faculty answer their questions about copyright law.
I AM NOT A LAWYER.
The key principle we want to impart is: if you don’t own it you shouldn’t use it without permission unless you have, in good conscience, applied all four of the fair use factors and the balance tips in favor of fair use.

2. Permission or license to use a copyrighted work is NOT required if
Work is a fact or an idea
Phone number, earth is round
Public domain
US government documents
Very old [see App. A]
Fair use

3. Fair Use Myth It's OK--it's for educational purposes.
Before using someone else's work without permission, weigh ALL 4 FACTORS
Checklist [see App. B]
1. Purpose and character of use
2. Nature of the work
3. Amount, substantiality
4. Effect

4. 1. Purpose and character of use
Commercial or educational use
For profit or not
Degree of transformation; value added
For criticism, commentary, news reporting, teaching, scholarship, research
FAIR USE 1 of 4
Another way to look at how to balance these issues is presented in the NEXT SLIDE.
FACTOR 1: What is the character of the use?
Degree of transformation; value added
© Myth: I modified it; now it's mine.
Pretty Woman: 2 Live Crew (Campbell, aka Skywalker, et al.) v. Roy Orbison Estate (Acuff Rose Music, Inc.), 1993/94

5. 2. Nature of the copyrighted work
Worthy of (extensive) protection?
Character of the work?
fact (information) or fiction (imaginative)
Published facts weigh in favor of fair use
Unpublished original expressions weigh in favor of seeking permission
FAIR USE 2 of 4
Facts and ideas cannot be copyrighted but the way that you describe and present them can. (Brad says: expression and structure. )
Think of it as a continuum between unprotected ideas and facts and protected expression.
FACTOR 2: What is the nature of the work to be used?
weigh in favor of fair use:
*Fact
*Published
tip the balance in favor of seeking permission:
*Imaginative
*Unpublished
Is the letter you wrote to your high school sweetheart his/hers to publish?

6. 3. Amount and substantiality
Use only what is necessary
Quantity in relation to whole work
Quality in relation to whole work
FAIR USE 3 of 4
a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying.
from
NOT FAIR USE (from
300 words quoted in a magazine article from approximately 30,000 words in President Gerald Ford's manuscript of his memoirs [1979 Time mag purchased pre-pub serial rights from Harper & Row, but The Nation scooped, from
200 words quoted from the unpublished letters of J.D. Salinger in an unauthorized, published biography, 1987 from
Fair use. Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. Rev. Falwell made several hundred thousand copies of the page and distributed them as part of a fund-raising effort. Important factors: Rev. Falwell's copying did not diminish the sales of the magazine (since it was already off the market) and would not adversely affect the marketability of back issues.
A poster of a "church quilt" was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)
Do you own the copyright to the you receive?

7. 4. Effect
Harm to potential market or value of a work after a portion has been used separately from the whole
FAIR USE 4 of 4
FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
After evaluation of the first three factors, the proposed use is tipping towards fair use
Original is out of print or otherwise unavailable
No ready market for permission
Copyright owner is unidentifiable
Competes with (takes away sales from) the original
Avoids payment for permission (royalties) in an established permissions market
Re the Ford case and weighing all 4 fair use factors
Purpose and character of use : Commercial pub (Nation)
Nature of the copyrighted work : more fact than fiction but it’s up to the author to control publication
Amount, substantiality : Substance over-road quantity
amount of the Nation's use of Ford's memoirs was not very large (300 words from memoirs)
Effect : The Court stated that the market effect "is undoubtedly the most important element of fair use.”

8. Fair use
Did the scales tip in favor of fair use after weighing all 4 factors?
If not
Use library services: Title 17 U.S.C. Sec. 108
EReserve
Ask for permission
It's OK to use someone else’s work as long as I give proper attribution
It’s like free advertising.
Open to the public or to others doing research
Notice of copyright
Reproduction or distribution without profit
Reserve Services
Copying articles, chapters
Limiting to university community
Limiting to one term, not sequential
Course Management Systems

9. Copyright permission services
Copyright Clearance Center
RSiCopyright
Association of American Publishers
You asked but they never responded. You don’t have permission.
If there’s time: TEACH Ac t >>>>
CCC: A service charge is applied per item using the following formula: ($ .015 per page) x (# of pages) x (# of students). The minimum service charge per item requested is $2.50; the maximum service charge per item is $6.50. In addition to the service charge, you pay a royalty fee set by the copyright holder which is then paid to the copyright holder.
CCC title catalog of publications (pre-authorized)
“(Title) (Volume/Edition) by (Author). Copyright (Copyright Year) by (Copyright holder). Reproduced with permission of (Copyright holder) via Copyright Clearance Center."
Four to six weeks prior
(978)

10. Copyright for Instruction
USC Title 17 Section 110
Limitations of certain performances and displays
Face-to-face classroom settings
Broadened by TEACH Act (Nov. 2, 2002)
Technology Education And Copyright Harmonization
Must have an institutional copyright policy
Section 110: Teachers and students may show a lawfully acquired work in a face-to-face classroom setting at a nonprofit educational institution if it is during a regular part of instructional activities and it is directly related to and assistance to the teaching content
See handout for comparison of 110 before and with the TEACH Act.
Modifies existing copyright law for:
Accredited nonprofit educational institution
Mediated instruction
Integral part of class session
Limited to enrolled students
Accurately informed about copyright compliance
Reasonably prevent
Retention beyond course
Unauthorized further dissemination

11. TEACH: Technology Education and Copyright Harmonization Act
Fair use standards in digital education environment
Modified existing copyright law for:
Accredited nonprofit educational institutions
Mediated instruction
Integral part of class session
Limited to enrolled students
Accurately informed about copyright compliance
Reasonably prevent
Retention beyond course
Unauthorized further dissemination
TEACH added reception by persons to whom the transmission is directed because of their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction and it is without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation to any of the performers, promoters, or organizers, and there is no direct or indirect admission charge
AAUP Legislative News November 2002 Update:
Intellectual Property: As one of the last actions of the regular session of the 108th Congress, both houses passed S. 487, the TEACH Act, as an amendment to another bill, HR 2215, which provided supplementary appropriations for the Department of Justice for FY 2002, and became PL: on November 2, The TEACH Act clarifies copyright protection for use in digital distance education, and grew out of a 1999 recommendation by the Copyright office.

12. TEACH Act: Works allowed. DISTANCE LEARNING CLASS IS THE
TEACH Act: Works allowed DISTANCE LEARNING CLASS IS THE SAME AS IN THE CLASSROOM
Show entire nondramatic literary works
News, poetry, speech, charts, maps
Show entire nondramatic musical works
Everything else in reasonable and limited portions
Plays, movies, operas, TV shows, choreography
Think of nondramatic works as similar to nonfiction, whereas
Dramatic works are like fiction, stories that are creative and imaginative
You could show an entire movie if, for example, the class was a film history course.

13. TEACH Act--You must not use
Works marketed primarily for distance education
Unlawfully made or acquired copies
Materials meant for additional study outside of class
EReserve, Reserve, Blackboard

14. TEACH Act--You must Transmit as an integral part of class session
regular part of systematic, mediated instruction
Use copyrighted materials only when directly related to the lesson
Limit access to students enrolled in the course
Have an institutional copyright policy & inform students about ©
Block further dissemination

15. Copyright Resources Copyright Management Center (IUPUI)
Crash Course in Copyright (UTAustin)
Library of Congress, Copyright Office
Legal Information Institute (Cornell)
Stanford University Libraries
TEACH Toolkit