Transcript Presentation Title Slide

Copyright & E-Reserves
Dave Hansen
November 16, 2012
Berkeley Digital Library Copyright Project
Goal:
“to investigate copyright obstacles faced by libraries and other like-minded
organizations in their efforts to realize the full potential of present and
future digital library initiatives. Our efforts are concentrated on both the
obstacles themselves and the range of possible legal, technological, social,
and market-based solutions to overcome them.”
Issues:
•orphan works
• library privileges
•digital lending
•metadata ownership
http://www.law.berkeley.edu/12040.htm
Structure of Copyright
Exclusive rights of author (§ 106) Limitations on exclusive rights
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Reproduce
Prepare derivative works
Distribute to public
Perform publicly
Display publicly
For sound recordings,
perform over digital network
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§ 107 – Fair use
§ 108 – Libraries and Archives
§ 109 – “First sale”
§ 110 – Non-profit Performances
§§ 111-122 – further refinement
Title 17, United States Code: http://www.law.cornell.edu/uscode/text/17/
Fair Use
§ 107 – “Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work . . . 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
§ 107 – “In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include—
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
Coursepacks
• 1982: Assoc. of American Publishers (AAP) led group that sued nine NYU
faculty members to prevent their copying of course anthologies in print
• Case settled on terms favorable to publishers;
• Created guidelines for how content could be used in coursepacks
• Publishers started sending cease and desist letters to other universities
insisting on same terms
Coursepacks
• Basic Books, Inc. v. Kinkos Graphics Corp. (S.D.N.Y. 1991)
• excerpts vary in length from 14 to 110 pages,
• compiled in five numbered packets ("anthologies")
• sold to students of NYU and Columbia Univ.
• Who does the copying matters:
• “The use of the Kinko's packets, in the hands of the students, was no
doubt educational. However, the use in the hands of Kinko's employees is
commercial.”
Coursepacks
• Princeton University Press v. Michigan Document Services (6th Cir. 1996)
• “MDS is aa commercial copyshop that reproduced substantial segments of
copyrighted works of scholarship,
• bound the copies into "coursepacks," and
• sold the coursepacks to students for use in fulfilling reading assignments
given by professors at the University of Michigan,”
• Copying often done at direction of U Mich. faculty
• Other suits – Copyright Clearance Center and others financed or
facilitated at least five similar suits between 1999 and today
Cambridge Univ. Press v. Becker (Ga. State Univ.)
• Cambridge University Press, SAGE Publications, and Oxford University
Press filed lawsuit in 2008
• Copyright Clearance Center apparently funds 50% of the suit
• Named as defendants four Georgia State University administrators and
managers
• Contested Georgia State University e-reserves system for providing access
to copyrighted works
Cambridge Univ. Press v. Becker (Ga. State Univ.)
• Originally 99 claims of infringement across three semesters’ worth of
classes
• Reduced to 75 claims submitted to the court to decide
• Of those, only 5 valid infringement claims from the use of 4 books
WHY?
Cambridge Univ. Press v. Becker (Ga. State Univ.)
WHY?
•Ownership and Registration: 16 failed claims
•De Minimis: 10 failed claims
•Fair Use: 44 claims are fair use; 5 considered not fair use
Fair use:
1)Purpose & Character – Non-profit, educational
2)Nature of the work – Scholarly, non-fiction, fact-based
3)Amount and substantiality
4)Potential harm to the market
Cambridge Univ. Press v. Becker (Ga. State Univ.)
NOT FAIR USE
1)Purpose & Character – Non-profit, educational
2)Nature of the work – Scholarly, non-fiction, fact-based
3)Amount and substantiality
• NOT “decidedly small” AND
4)Potential harm to the market
• “For loss of potential license revenue to cut against fair use, the
evidence must show that licenses for excerpts of the works at issue
are easily accessible, reasonably priced, and that they offer excerpts
in a format which is reasonably convenient for users. ”
Electronic Reserves
vs.
Electronic Coursepacks
E-Reserves
Principle: “It is fair use to make appropriately tailored course-related content
available to enrolled students via digital networks.”
E-Reserves
Limitations:
•Closer scrutiny should be applied to uses of content created and marketed
primarily for use in courses such as the one at issue (e.g., a textbook,
workbook, or anthology designed for the course).
•The availability of materials should be coextensive with the duration of the
course or other time-limited use (e.g., a research project) for which they have
been made available at an instructor’s direction.
•Only eligible students and other qualified persons (e.g., professors’ graduate
assistants) should have access to materials.
•Materials should be made available only when there is a clear articulable
nexus between the instructor’s pedagogical purpose and the kind and amount
of content involved.
E-Reserves
Limitations:
• Libraries should provide instructors with useful information about the
nature and the scope of fair use, in order to help them make informed
requests.
• When appropriate, the number of students with simultaneous access to
online materials may be limited.
• Students should also be given information about their rights and
responsibilities regarding their own use of course materials.
• Full attribution, in a form satisfactory to scholars in the field, should be
provided for each work included or excerpted.
E-Reserves
Enhancements:
•Prompt instructors, who are most likely to understand the educational
purpose and transformative nature of the use, to indicate briefly in writing
why particular material is requested, and why the amount requested is
appropriate to that pedagogical purpose.
•To assure the continuing relevance of those materials to course content,
libraries should require instructors of recurrently offered courses to review
posted materials and make updates as appropriate.
Fair use checklist:
Kenny Crews, Columbia Univ.
Dwayne Buttler, Univ. of Louisville
http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf