Transcript Copyright Overview

Fair Use in the Traditional
Classroom and Online
Settings
Frank Lancaster
UT Office of the General Counsel
Presented at The University of Tennessee Martin
March 12, 2015
1
Introduction
2
What is a Copyright?
• A copyright is the legal right to control original
expression – to exclude others from making
copies (it is literally the “right” to make “copies”).
• A copyright owner has the exclusive rights
(subject to specific exceptions) to:
o Reproduction (Making Copies)
o Performance and Display
o Distribution (Publication)
o Creation of Derivative works (Adaptation)
 Example – turning a book into a movie
3
Constitutional Basis of Copyright Law
Article I, Section 8, Clause
8: “The Congress shall
have Power … To promote
the Progress of Science
and useful Arts, by
securing for limited Times
to Authors … the exclusive
Right to their … Writings.”
4
Copyright Policy
• Purpose of copyright law: Benefit the public
• Method of achieving the purpose of copyright
law: Incentivize creators to create by giving
them a period of exclusive right to profit from
their creations
• Copyright law is an ever-changing
compromise/optimization between these
competing interests
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Copyright Protection
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What Does Copyright Law Protect?
• Copyright protects expression – not facts or
ideas
• What is protected is how you say it, not the
substance of what you say
• (Ideas can be protected by patent law if novel,
useful, and non-obvious)
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Protectability Requires Originality
• Key to Protection: Originality
• Lenient standard
 Independent Creation = Non-Copied
 A Modicum of Creativity – “[T]he requisite level of
creativity is extremely low.” Feist Publications, Inc.
v. Rural Telephone Service Co., 499 U.S. 340, 345
(1991).
8
When Does Copyright Protection
Start?
• A protectable expression is protected from the
instant it is fixed in a tangible medium of
expression
= Recorded in some concrete way
For words – usually typed or written down
• Registration with Copyright Office and Notice
(© – the “C in a Circle”) are not required for
protection
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Use of Copyrighted
Materials
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In General – Be Careful of Copying
• Always think before you copy something
• Just because you can – that does not mean
you may
• Things on the Internet are not in the Public
Domain just because they’re on the Internet.
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Digital Millennium Copyright Act
• 1998 Digital Millennium Copyright Act
(“DMCA”)
• Do not strip off copyright ownership
information!
• Called “Copyright Management Information” or “CMI”
• DMCA makes it illegal to circumvent or tamper
with technological protection measures
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Some Internet Pointers
• Use clearly public domain images and content
o Note – Things published in the United States before
1923 are in the public domain
• Seek permission when in doubt
• Link instead of copying
• Be careful about Site Terms and Conditions
13
Four Ways To Use Copyrighted
Materials Safely/Lawfully
• Permission – 100% protection
• Section 110(1) – Very strong protection for
face-to-face teaching
• Section 110(2) (TEACH Act) – Fairly strong
protection for online teaching
• Section 107 Fair Use – Fuzzy protection based
on case-by-case analysis
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Getting Permission
• Permitted use is always lawful
• Better to get it in writing – but not legally
necessary
• Most sources have an indication of whom to
ask
o Copyright Clearance Center
(http://www.copyright.com/)
15
Library Materials – A Special Case of
Permission
• Check with the UT Martin Library
about materials that are licensed for
classroom reproduction/posting
16
Getting Permission – Sample Forms
• Columbia Forms:
http://copyright.columbia.edu/copyright/permiss
ions/requesting-permission/model-forms/
• Texas Form:
http://copyright.lib.utexas.edu/permmm.html
• Michigan Form:
http://guides.lib.umich.edu/content.php?pid=28
9569&sid=2380205
• Duke Form:
http://blogs.library.duke.edu/scholcomm/freque
ntly-asked-questions/toolkit/
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Special Rule for Face-To-Face Teaching
• Copyright Act Section 110(1) protects
“performance or display of a work by
instructors or pupils in the course of face-toface teaching activities of a nonprofit
educational institution, in a classroom or
similar place devoted to instruction …”
18
Special Rule for On-Line Education
• TEACH Act – Copyright Act Section 110(2) –
protects performance/display if:
o Directly related and of material assistance to the
teaching
o Under the actual supervision of an instructor
o Recipients limited to enrolled students
o Use technical measures to protect against
unauthorized retention/retransmission
o University has policies/training regarding copyright
o Copyright notice to students
19
Fair Use
• A copyright owner’s rights are trumped by fair
use of copyrighted material
• Need both
o Proper Context/Purpose
o Pass Fair Use Four-Factor Balancing Test
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Fair Use – The Statute
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproductions 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. 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.”
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Fair Use – Contexts
• Examples of Fair Use Contexts/Purposes
o Criticism
o Comment
o News Reporting
o Teaching (including multiple copies for classroom
use)
o Scholarship
o Research
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Fair Use Four Factor Test
• Fair Use Balancing Test – Look at:
o The purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes
o The nature of the copyrighted work
o The amount and substantiality of the portion used in
relation to the copyrighted work as a whole
o The effect of the use upon the potential market for or
value of the copyrighted work
• Georgia State Case => No One Factor Trumps
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Fair Use – Factor 1
• The Purpose and Character of the Use
Favors Fair Use
Weighs Against Fair Use
Educational
Non-Profit
Commercial
Transformative (e.g., for
comment, critique, or parody)
Simple Reproduction
24
2 Live Crew’s “Pretty Woman”
• 1964 Roy Orbison Song “Pretty Woman”
• 1989 2 Live Crew Rap Version of “Pretty
Woman”
o Uses same melody as original Roy Orbison song
o Uses some of same lyrics
o Other, new, lyrics satirize and parody original song
o Was this a fair use?
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Answer
• Yes
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
• Strong protection for parody
• Recognition that you can’t do parody without
some copying: “Parody needs to mimic an
original to make its point, and so has some claim
to use the creation of its victim’s … imagination.”
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Gone with the Wind
• 1936 – Margaret Mitchell published Gone with
the Wind
• 2001 – Alice Randall published The Wind Done
Gone
o The same story told from the viewpoint of a slave
living on Scarlett O’Hara’s plantation
o Uses the characters, plot, major scenes – and
verbatim copies of some of the dialogue – from Gone
with the Wind to criticize the novel’s depiction of
slavery and the American South
o Was this a fair use?
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Answer
• Yes
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257
(11th Cir. 2001).
• A “parody” does not have to be humorous –
the key element is borrowing from another
work in order to to comment/critique
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Fair Use – Factor 2
• The Nature of the Copyrighted Work
Favors Fair Use
Weighs Against Fair Use
Factual/Practical Works
Highly Creative Works
Published Work
Unpublished Work
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Fair Use – Factor 3
• The Amount and Substantiality Used
Favors Fair Use
Quantitative
Qualitative
Copy a small amount
Weighs Against Fair Use
Copy a large amount
Copy heart of work
30
President Ford’s Memoirs
• The Nation Magazine printed a portion of
Gerald Ford’s Memoirs
o Magazine used about 300 words of copyrighted
material – out of a 450 page book.
o The part quoted was about Ford’s decision to
pardon Nixon
o Was this a fair use?
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Answer
• No – not a fair use
Harper & Row, Publishers v. Nation Enterprises, 471
U.S. 539 (1985).
• The magazine took “the heart of the work”
• Qualitative importance (and commercial use)
trumped quantitative minimalness
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Fair Use – Factor 4
• The Effect on the Market/Value of the Work
Favors Fair Use
Little or no impact on current or
potential market
Weighs Against Fair Use
Affects copyright owner’s ability to sell
product
Affects copyright owner’s ability to
adapt work
• Giving the students a copy so they don’t have
to buy it – sure to flunk the fair use test.
33
Fair Use and Permissions
• It never hurts to ask for permission – does not
count against you on fair use analysis
o Supreme Court => “[B]eing denied permission to
use a work does not weigh against a finding of fair
use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S.
569, 585 n. 18 (1993).
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Documenting/Record-Keeping
• Keep a File of Permissions
• Keep a File of Fair Use Analyses
o Columbia Fair Use Checklist:
http://copyright.columbia.edu/copyright/files/200
9/10/fairusechecklist.pdf
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Providing Copies –
Uploading PDFs to
Blackboard
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Providing Copies to Students
• Fiscal Policy FI0155
• United States Copyright Office Circular 21 –
“Reproduction of Copyrighted Works by
Educators and Librarians”
o http://www.copyright.gov/circs/circ21.pdf
• Guidelines for Classroom Reproduction provide
very little protection for copying – require
“spontaneity”
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The Coursepack Case
• A commercial copyshop prepared coursepacks
of readings that were sold to students at the
University of Michigan
• Included excerpts of books that were 5% to
30% of the original books.
o Was this a fair use?
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Answer
• No
Princeton University Press v. Michigan Document
Services, Inc., 99 F.3d 1381 (6th Cir. 1996).
• Commercial use and harm to market for
original books => not a fair use
o Note – the vote was 8-5
• Any time someone is copying so that someone
else does not have to buy the original – that’s
a red flag, it’s not likely to be a fair use.
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The E-Reserves Case
• Cambridge University Press v. Patton, 769 F.3d
1232 (11th Cir. 2014) (the “Georgia State
Case”).
o Georgia State made materials available to
students on line, instead of hard copies on reserve
in library
o Was this a fair use?
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Answer
• Sort of
• Of 75 claimed infringements, the trial court ruled in
favor Georgia State on 70
o On the 5 violations, a limited injunction issued: “Follow
Your New Policy”
• District Court used a 10% or 1-Chapter Rule
o Court of appeals rejected quantitative safe harbor
• Georgia State likely to win most/all on remand.
• BUT … Georgia State has spent more than $3 Million
defending the case.
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Uploading to Blackboard
• Don’t upload materials to Blackboard for your
students to use unless:
– You have permission
– You have performed (and saved) a written fair-use
analysis fairly justifying doing so.
• Never upload materials to Blackboard for your
students to use in lieu of having them
purchase the materials
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Some Resources
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Some Copyright Resources
• Website for U.S. Copyright Office
o http://www.copyright.gov/
o Copyright Circulars –
http://www.copyright.gov/circs/
• UT Office of the General Counsel Website –
http://bot.tennessee.edu/counselcopyright.html
o Has Links to Columbia, Stanford, Texas
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Questions/Comments?
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