1. Digital Distribution of Course Materials* Steve Rosen Attorney Office of General Counsel The University of Texas System srosen@utsystem.edu * And other things youve always wanted to know about intellectual property law but were afraid to ask...

2. Overview: What Are We Talking About Today? (1/2) Primarily: How course materials may be properly transmitted in a digital context. Secondarily: Fair Use. A little law goes a long way (punctuated with references to Seinfeld and Barbie Dolls (really))....

3. Overview: An Outline Of Todays Discussion (2/2) The Evolution of Course Material Distribution. The Black Box That Is Fair Use (Law Stuff). Where We Go From Here.

4. What You Need To Know In One Slide All: Read the informative ARL brochure Know Your Copyrights, available at http://www.knowyourcopyrights.org/resource sfac/kycrbrochure.shtml Use Links. http://www.knowyourcopyrights.org/resource sfac/kycrbrochure.shtml All: Digital media is powerful and should be used to enhance the educational experience.

5. The Distribution Of Academic Course Material (1/2) Discussion is a form of educational information. –Ounce of prevention... No one has been sued yet... Fair uses flexibility gives us a false sense of security –AAP has threatened UC San Diego, Cornell and 6 other universities, including A&M. We should develop acceptable practices without being threatened with a lawsuit.

6. The Distribution Of Academic Course Material (2/2) Digitizing and distributing copies occurs all over campus (the library, within CMS, on Websites), and on every campus within UT System.

7. Defining Digital Distribution (1/2) Institutional use of any digital means to supply students with copies of class- related materials –Readings –Images –Audio files –Audiovisual materials

8. Defining Digital Distribution (2/2) Accomplished through – –Electronic reserves. –Posting within course management systems. –Posting to an institutional server. –Electronic coursepacks.

9. Reserves And Coursepacks (1/2) Traditional reserves. –Placement of books in special room. –Time-limited access to resources for supplemental reading. Next came photocopies. –Chapter; article; small number of copies. –Considered fair use by many. Then came electronic reserves.

10. Reserves And Coursepacks (2/2) Coursepacks –Originally photocopied collections of readings that supplemented the textbook Articles Chapters –In some cases, coursepacks included all readings for a class (no textbook used). –Commercial coursepacks have been ruled by two courts to not be fair use.

11. Copyright And Fair Use: Its The Law... The benefits of copyright ownership: The exclusive right to: copy; modify; distribute; publicly display; and publicly perform. Grants a monopoly in order to encourage the development of new ideas.

12. Fair Use – 4 Factors (1/5) Exception to copyright monopoly: Protects copying for use in criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. 17 USC § 107. Purpose also is to encourage the development of new ideas.

13. Fair Use – 4 Factors (2/5) Factor No. 1: Purpose and Character of the Use. Two facets: Whether the defendants work is commercial or non-commercial in nature. Whether the work is transformative. * Dungeon Dolls = transformative. * Seinfeld Aptitude Test = not transformative.

14. Fair Use – 4 Factors (3/5) Factor No. 2: Nature of the copyrighted work. The more creative a work, the greater the protection. Cataloguing, indexing are not protected as vigorously.

15. Fair Use – 4 Factors (4/5) Factor No. 3: Amount and Substantiality of the Portion Used. Sliding Scale.

16. Fair Use – 4 Factors (5/5) Factor No. 4: Potential Effect on the Market. Whether alleged infringers work usurps demand for plaintiffs work. Transformative work less likely to have an adverse impact.

17. What Do The Courts Tell Us? (1/2) Texaco (1994): Copying articles from a journal for routing may not be fair use. Kinkos (1991) and MDS (1996): Commercial copy centers may need to secure permission to distribute coursepacks. Perfect 10 (2007): Googles thumbnails of larger photos are fair use.

18. What Do The Courts Tell Us? (2/2) Different judicial philosophies. Potential (MDS) vs. actual (Perfect 10) market harm. Market theory vs. constitutional theory (Georgia Harper).

19. Summary of the legal standard Fair use is unavoidably vague. Historically distinct practices have merged. –Library reserves –Coursepacks Status of nonprofit coursepacks uncertain.

20. Observations I E-reserves policies follow coursepack policies. Same range of policy choices are reflected in electronic reserve policies.

21. Observations II Guidelines To Assist In The Creation Of Coursepacks: Limit coursepack materials to – single chapters, single articles from a journal issue, several charts/graphs/illustrations and other similarly small parts of a work. Include any copyright notice on the originals and appropriate attribution. Obtain permissions for materials used repeatedly.

22. Observations III Decision to rely on fair use is individual and decentralized. Academic control requires centralization. CCC subscription license (next slide). CCC/Bb collaboration. Campus copyright offices.

23. Working Toward A Comprehensive Solution Copyright Clearance Centers Annual Copyright License for Academic Institutions Covers most, but not all materials faculty members might want to use. More helpful when coverage expands. UT Task Force on Digital Distribution of Course Materials

24. Questions...

25. Thank You! Steve Rosen –Attorney, UT System – Copyright, Trademark and Intellectual Property Matters –srosen@utsystem.edu Georgia Harper –Outside Counsel to UT System for Copyright Matters –UT Libraries Scholarly Communications Advisor –gharper@austin.utexas.edugharper@austin.utexas.edu –http://copyright.lib.utexas.edu/