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

2. 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!

3. 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!

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

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

6. 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 …

7. 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)

8. 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

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

10. 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.....

11. But … don’t give up!

12. 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.

13. 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.

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. Copyright and Fair Use in the Digital Age

21. 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. 

22. 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.”

23. 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

24. 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.”

25. 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.

26. 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

27. 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, Views of copyright owners, educators and libraries will be solicited on seven key topics.

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

29. 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.

30. 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.

31. 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.

32. 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

33. 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.

34. 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

35. 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”

36. 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

37. 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

38. 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.

39. Case Study

40. 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?

41. 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?

42. 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.

43. 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

44. 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 . . .

45. 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.

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

47. 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

48. 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.

49. 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.

50. 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

51. 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.

52. 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

53. 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 . . .

54. 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.

55. 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.

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

57. 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?

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

59. Copyright Clearance Center
Fair Use Case Study
Copyright Clearance Center

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

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

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

66. 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.

67. 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.

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

69. 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!

70. Resources Copyright Essentials for Librarians and Educators
Kenneth D. Crews

71. Resources UT Crash Course in Copyright
IUPUI Copyright Management Center
Medical Education Resource for Instructional Technology (MERIT) on

72. MERIT

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

75. Questions?