Transcript SIDLIT Conference – August 2, 2012

COPYRIGHT in the AGE of
ANYTHING GOES
SIDLIT 2012, August 2-3, 2012
ACADEMIC FAIR USE: A LEGAL
HISTORY
Leslie Reynard, Ph.D., Sarah Ubel, J.D., Ph.D.,
Washburn University, Topeka Kansas
Intellectual Property
• Copyright
– Ability to control copying and exploitation of an
original idea for a certain period of time
Books
Maps
Charts
Engravings
Prints
Music
Dramatic works
Photographs
Paintings
Drawings
Sculpture
Motion pictures
Sound
recordings
Choreography
architecture
Intellectual Property
• U.S. Copyright Law
– No paperwork
– Attaches immediately
– 70 years after death of “author”
Intellectual Property
• Exceptions:
– Fair Use
– Academic Fair Use
The TEACH Act (2002)
• “Technology, Education and Copyright Harmonization Act”
– Amends Sec.110(2) of the Copyright Act
• Focus:
– distance education
– rights / responsibilities of the institution
• Updates and modernizes previous legislation (re. “closed circuit TV”)
• Addresses “unique uses”:
–
–
–
–
–
Scans
Web sites
Email.
Web-links.
Electronic forums
The TEACH Act (continued)
• Accredited non-profit institution
• Institutional copyright policy
• Provide informational materials
• Provide notice to students
• Limit access: only enrolled students
The TEACH Act (continued)
• Relevant to Instructors:
– Permits more “performance” types
– Explicitly excludes some performances
– Mandates instructor’s direction and control of materials used
– “Digital transmission” must be part of “mediated instructional activities”
– Prohibitions on conversion of analog materials to digital formats
What Is Fair Use?
• Fair Use Checklist developed by:
Copyright Advisory Office
Columbia University Libraries
Kenneth Crews, Director
http://copyright.columbia.edu
Fair Use Checklist: PURPOSE
Favoring
Opposing
•
•
Commercial activity
•
Profiting from the use
•
Entertainment
Teaching (including multiple copies for
classroom use)
•
Research
•
Scholarship
•
Nonprofit educational institution
•
Bad-faith behavior
•
Criticism
•
Denying credit to original author
•
Comment
•
News reporting
•
Transformative or productive use
(changes the work for new utility)
•
Restricted access (to students or other
appropriate group)
•
Parody
Fair Use Checklist: NATURE
Favoring
Opposing
•
Published work
•
Unpublished work
•
Factual or nonfiction based
•
•
Important to favored educational
objectives
Highly creative work (art, music,
novels, films, plays)
•
Fiction
Fair Use Checklist: AMOUNT
Favoring
Opposing
•
Small quantity
•
Large portion or whole work used
•
Portion used is not central or significant
•
•
Amount is appropriate for favored
educational purpose
Portion used is central to “heart of the
work”
Fair Use Checklist: EFFECT
Favoring
Opposing
•
•
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 the web or in
other public forum
•
Repeated or long-term use
User owns lawfully purchased or
acquired 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 a licensing mechanism
Posting Materials On-Line
• Allowed If:
– Instructor owns the copyright
– Material is linked, not copied
– Copyright owner gives permission
– Material is in the public domain
– Use falls within “fair use” [see “Checklist”]
– Use conforms to other legal exception
Fair Use of Electronic Media
• Copyright protection in a non-digital form extends to all
digital forms of that material
• See: Using Digital Content
The Public Domain (Generally)
• Short phrases
• Facts and theories
• Ideas
• Government works
• Expired copyrights
• Lost copyrights
Public Domain Calculator
Source: http://librarycopyright.net/digitalslider/
Related Resources for Online Educators
• The Campus Guide to Copyright Compliance
• Peer to Peer University (P2P)
• Copyright 4 Educators (US)
• Fair Use Checklist (Columbia University)
• Code of Best Practices for Fair Use in Scholarly Research
in Communication
• Taking the Mystery Out of Copyright (U.S. Library of Congress)
Susan Stuart
Director of Online Education, Kansas City
Kansas Community College
What’s The Current Copyright Climate?
• Cost to defend a copyright infringement case
• Renewed interest in enforcement by current federal administration
• Changes to the laws by recent court decisions and new
technologies
• Recent Ruling in Cambridge University Press,
et al vs. Georgia State
The Case Against Georgia State
• Unsecure e-reserves
• Posting without payment
• Copying from semester
to semester
• Policies that are too
vague and overly
generous
• Failure to enforce
Judges Decision
• Ruling handed down May 13, 2012
• Mostly a victory for the GSU
• Only five of the 99 copyright infringements violated plaintiff’s
copyrights
Four Factors of Fair Use in GSU Case
• Factor One: The Purpose and Character of the Use
– Teaching and scholarship and by nonprofit educational
institutions
• Factor Two: The Nature of the Copyrighted Work
– All of the works at issue were
nonfiction and educational in nature
Four Factors of Fair Use in GSU Case
• Factor Three: Amount and Substantiality of the Portion Used
– If the amount is small enough it doesn’t effect the market
– Less than 10%
• Factor Four: The Effect of the
Use Upon the Potential Market
– If there's a licensing market,
that favors the rights holder
Mark S.
Reference/Copyright Librarian
Bright Line Copyright
Zero Risk Solutions
Comparing Risks: Fair Use
Comparing Risks: Fair Use
•Fair Use
• Hammocks
www.bookofodds.com/Accidents-Death/Galleries/Watch-Out-Household-Hazards/%28slide%29/7
Comparing Work
• Fair Use
• Hammocks
fairuse.stanford.edu/images/FairUseTest.gif
Principles for Avoiding Risk and Work
1.
2.
3.
4.
Face-to-face teaching
The Human Shield
The Unprotected
Already Purchased
1. Face to Face Teaching
Scenario:
The general counsel for the MPAA has enrolled in your class. You
stream Space Jam from NetFlix and show it, in its entirety, to your
class over 2 class sessions.
2. The Human Shield
Perfect 10, Inc. v. Amazon.com INC – Court of Appeals, 9th Curcuit 2007 scholar.google.com/scholar_case?case=17826705839648059877&hl=en&as_sdt=2&as_vis=1&oi=scholarr
3. The UnProtected
search.creativecommons.org
doaj.org
Scenario:
Students in your American Literature course
will be reading Moby Dick, The Scarlet Letter,
and Uncle Tom’s Cabin. You copy-paste the
text of the novels from your Kindle editions into
MS word, print off copies, and sell them to your
students for a profit.
4. Already Purchased
Example
Librarians
Scenario:
Denying permission, a
publisher directs you to the
Copyright Clearance Center to
purchase permission to upload
the results of the Milgram
experiment (1964) to the
BlackBoard site for your 250
student Psychology lecture
class.
Questions?
Questions?
QUESTIONS?