Transcript Copyright Basics and Recent Legislation

Copyright and Fair Use
as it Applies to Teaching
Dan Lee
Director, Office of Copyright Management & Scholarly Communication
[email protected]
OIA Seminar
February 12, 2014
Recent Court Cases & Higher Ed
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AIME v. Regents of University of California et al
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Cambridge University Press et al v. Patton et al
(i.e. Georgia State University)
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Authors Guild, Inc. et al v. HathiTrust et al
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Kirtsaeng v. Wiley & Sons
"The Congress shall have power . . .
[t]o 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"
--- The Constitution of the United States of America,
Article 1, Section 8
Works Subject to Copyright
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Original works of authorship that are . . .
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Fixed in a tangible medium of expression.
Registration
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No need to register for protection
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Do need to register to seek statutory
damages
Works Subject to Copyright
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Literary works
Musical works, including any accompanying
words
Dramatic works, including any accompanying
music
Pantomimes and choreographic works
Works Subject to Copyright
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Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works
Boat hull designs
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What’s missing?
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Works NOT Protected
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Ideas
Facts
Names, short phrases, or slogans
Familiar symbols or designs
Processes, systems, or methods
Government works
Public domain works
Term of Copyright
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Life of the author + 70 years
Works Made for Hire (corporate author), 95
years from first publication or 120 years from
creation, whichever is shorter
Digital Copyright Slider
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http://librarycopyright.net/digitalslider/
Work Made For Hire
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Employer is considered author of work if:
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the work was prepared by an employee within the
scope of his or her employment; or
the work was specially ordered and both parties
agreed ahead of time.
UA Intellectual Property Policy
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http://techtransfer.arizona.edu/sites/ott/files/ua_ip
_policy.pdf
Bundle of Exclusive Rights
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To reproduce the work
To make derivative works
To distribute the work
To display work publicly
To perform the work publicly
To perform the work publicly by means of a
digital audio transmission (for sound
recordings)
Limitations on Rights
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Section 107 - Fair Use
Section 108 – Exceptions for Libraries and
Archives
Section 109 - First Sale Doctrine
Section 110 – Exceptions for Education
Section 110 & the TEACH Act
Sub-Section 1 allows for performance and
display of works in face-to-face instruction
Sub-Section 2 (or TEACH Act) addresses
online instruction
TEACH Act Checklist
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http://ogc.arizona.edu/files/TEACH-ACT-CHECKLIST.pdf
107 - Fair Use
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Limitation on exclusive rights
Purposefully vague and flexible statute
No exact parameters
Determination depends on circumstance of
each case
Much of what we do in teaching and
scholarship depends on fair use
“Fair use is the scale on which our nation balances,
on the one hand, proprietary interests established by
copyright, and on the other hand, vital public rights of
communication, commentary, research, and artistic
creation that are anchored in the First Amendment. ...
Fair use ensures that copyright law does not stifle the
very learning that copyright is designed to promote.”
- American Council on Education, et al, Statement Before the House SubCommittee on the Courts, Intellectual Property, and the Internet, January 27, 2014
Fair Use - 4 Factors
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(1) the purpose and character of the use;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the
portion used; and
(4) the effect of the use upon the potential
market for or value of the copyrighted work.
Fair Use
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Purpose and character of use
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educational uses favored, but not determinative
transformative uses favored
Nature of the work
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non-fiction vs. creative works
Fair Use
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Amount used
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no exact measures in statute
linked to purpose
quantitative vs. qualitative
Effect on the market
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most important?
linked to purpose (research vs. commercial)
Recent Court Cases & Higher Ed
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AIME v. Regents of University of California et al
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Cambridge University Press et al v. Patton et al
(i.e. Georgia State University)
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Authors Guild, Inc. et al v. HathiTrust et al
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"I cannot imagine a definition of fair use that
would not encompass the transformative
uses made by Defendants' MDP and would
require that I terminate this invaluable
contribution to the progress of science and
cultivation of the arts that at the same time
effectuates the ideals espoused by the ADA."
- Authors Guild v. HathiTrust
Fair Use
Fair Use Checklist
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http://www.library.arizona.edu/services/faculty/scholcom/fairuse/
Penalties
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$750 - $30,000 per work infringed
Up to $150,000 for willful infringement
Costs + attorney’s fees
Penalties Cont.
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Criminal Infringement if done for commercial
gain OR
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Reproduced or distributed a work with retail
value > $1,000
OER & Copyright
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Several Resources (e.g. Merlot,
Connexions, OER Commons)
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Many are available with Creative
Commons licenses, e.g. CC-BY
Other Resources
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Bound by Law
http://www.law.duke.edu/cspd/comics/pdf/cspdcomicscreen.pdf
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Columbia University Libraries Copyright Advisory Office
http://copyright.columbia.edu/index.html
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Center for Social Media Codes of Best Practice in Fair
Use
http://www.centerforsocialmedia.org/fair-use/related-materials/codes
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Create Change
http://www.createchange.org/
Contact Information
Dan Lee
[email protected]
621-6433