Transcript Copyright and the Classroom

Copyright and the
Classroom
Deborah Tussey
12/05/2008
Nature of copyright law
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Statutory
- Statute of Anne (1710)
Interpreted, elaborated upon by courts in
litigated cases
U.S. Const., Art. I, §8, cl. 8
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."
US Copyright statutes
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1790
1909
1976 (current)
Negotiated revisions
Federal copyright law is preemptive
Rights - § 106
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To reproduce in copies or phonorecords
To prepare derivative works
To distribute copies or phonorecords to the
public
To perform publicly
To display publicly
To perform sound recordings by digital
audio transmission
Limitations
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Duration (?)
Idea/expression dichotomy
First sale doctrine
Special statutory exceptions for, e.g.,
libraries, performance and display in
classrooms (§ 110)
Fair use doctrine
What can you use freely? The
Public Domain
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Works published before © or for which copyright has
expired
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Published before 1/1/1923 in the US
Works published 1923-1963 for which copyright was
not renewed
Works published 1923-3/1/89 w/o © notice
Works dedicated to the public domain by the author
Uncopyrightable works: e.g., US govt works, titles,
short phrases, ideas, facts, theories
Origins of Fair Use
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Judge-made law
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Equitable (clean hands)
A defense not a right
First codified in 1976 statute as § 107
§ 107 (preamble)
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.
§ 107 (factors)
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.
Fair Use Factors
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Purpose and character of D’s use
Nature of P’s work
Amount and substantiality taken from P’s
work
Market harm to P
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Fair use doctrine is “the most troublesome in
the whole law of copyright.”
-- Judge Learned Hand (1939)
Purpose and character of D’s use
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Commercial use weighs against fair use but not
determinative
Transformative uses preferred
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Parodies (Campbell)
Pro-competitive uses (Sega)
Others (Kelly thumbnails)
Bad faith disfavored
Freeriding disfavored
Public policies considered
Nature of P’s work
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Fictional or creative works more protected –
fair use less likely – than factual works
Unpublished more protected than published
(Harper)
Factor carries little or no weight as to
parodies (Campbell)
Amount and substantiality of portion of
P’s work taken by D
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Measured qualitatively and quantitatively
Small amount may be too much if it’s central
(Harper)
Taking all may be OK for legitimate purposes
(Sega, Sony) but there are limits (Napster,
Free Republic)
Parodies may take enough to conjure up the
original, but not too much (Campbell)
Harm to P’s market
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Assumption that D’s behavior is widespread
Substitution effect
Potential as well as actual markets
Licensing and derivative markets
Market definition critical
Bottom line
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Cts weigh all factors – 1st and 4th more
heavily
Case by case, context sensitive
Policy considerations – e.g., innovation,
competition
Outcomes VERY unpredictable
The Educational Fair Use
Guidelines
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Negotiated during 1976 revision process by
interested parties
Minimal fair use - safe harbors
Circular 21 (pp. 8,9,22)
Only deal with books and periodicals, music,
recording of TV broadcasts off air
Recognized by courts & Copyright Office (broadcast
possibly excepted)
Books & Periodicals (p.8)
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Teachers - single copy of chapter, article for
research, scholarship OK
Multiple copies for classroom use
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Not > 1 per student
Must meet tests of brevity, spontaneity,
cumulative effect
Must include copyright notice
Brevity - Examples
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A complete poem if less than 250 words or an excerpt of not
more than 250 words from a longer poem
A complete article, story or essay if less than 2,500 words, or an
excerpt from any prose work of not more than 1,000 words or
10% of the work, whichever is less but a minimum of 500 words;
or
One chart, graph, diagram, drawing, cartoon or picture per book
or per periodical issue
Spontaneity
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Instigated by teacher
Time between decision and use is too short
to reasonably allow response to permission
request
Cumulative effect
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Not more than one short poem, article, story,
essay or two excerpts from the same author
per course per term
Not more than three from the same collective
work or periodical volume (for example, a
magazine or newspaper) per course per term
Not more than nine instances altogether per
course per term
Prohibitions
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No anthologies – e.g., coursepacks
No consumables (workbooks, etc)
No repeats from term to term
No charge to students above costs of copying
Music - Examples (p. 9)
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Music instructor may copy excerpts of sheet music
or other printed works, provided that excerpts do not
constitute a "performable unit" such as a whole
song, section, movement or aria. No more than 10%
of the whole work. No more than one copy per pupil.
Student may make one recording of a performance
of copyrighted music for evaluation or rehearsal
purposes
Single copy of a sound recording owned by an
educational institution or a teacher for the purpose
of constructing aural exercises or examinations
Prohibitions
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No anthologies
No consumables
Limitations on copies for the purpose of
performance or substitute for purchase
Must include copyright notice on the printed
copy
Recording broadcasts
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Nonprofit educ institutions can record off air
and keep for 45 days, but can only use for
instruction w/in the first 10 days and only
once
At instigation of teacher
Must destroy after 45 days
See other limitations in circular 21 (p.22)
NOTE!
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THESE ARE SAFE HARBORS
THEY DO NOT REPRESENT THE FULL
SCOPE OF FAIR USE!!!!
What about?
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Stuff outside the safe harbors for text, music,
broadcast? Four factors test.
The stuff not mentioned at all like movies and
multi-media, digitized images,distance
learning?
CONFU
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Creation and use of multimedia works
Digitized images
Distance learning
Educational reserves
No complete agreement on any of them possibly helpful but not safe harbors
Multimedia Guidelines
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Most agreement on this proposal
Applies to creation of multimedia works which
include copyrighted works by students or teachers at
nonprofit educ institutions for educ purposes - e.g.,
Powerpoint
Portion limitations, e.g. 30 seconds of music, 3
minutes of a movie
See the handout for additional limitations.
NOTE!
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PROPOSED GUIDELINES MAY GIVE YOU
SOME IDEA OF WHERE A SAFE HARBOR
LIES (SORT OF)
THEY DO NOT REPRESENT THE FULL
SCOPE OF FAIR USE!!!!
The Alternatives
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Request permission from the © owner
Stay within the safe harbors or proposed
guidelines
Take your chances under the four factor test
Other stuff you should know
about
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The DMCA
Creative Commons
DMCA- anti-circumvention
provisions
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No circumvention of technological protection
measures to gain access to copyrighted works
No manufacture, sale or traffic in technologies which
defeat either access controls or other measures
protecting owner's rights, if
- primarily designed for purposes of
circumvention,
- has limited commercially significant use
except for circumvention OR
- is marketed for circumvention
Techno protection- Examples
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Password protection
Digital rights management/encryption
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E.g., DVDs (CSS)
iTunes Fair Play
Any exemptions?
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Very narrow exception for libraries, educ institutions
to make buying decisions - none for general
educational use
No broad fair use - rolling 3-year review by Librarian
of Congress.
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E.g., circumvent obsolete encryption
exemption for film and media studies professors who need
to create clips for use in their classes (2006)
New cycle now underway….
WARNING
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If the material you want to use is protected by
technological measures, it’s risky to
circumvent them to get at the material
DMCA has entirely separate set of penalties not dependent on © infringement
Creative Commons
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A response to expanded © and the DMCA
Copyright owner licenses broader use of the
work, e.g., noncommercial use, educational
use, etc.
Welcome | Creative Commons,
http://creativecommons.org/
Help!
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Stanford Copyright and Fair Use Center,
http://fairuse.stanford.edu/
Copyright Office, http://www.copyright.gov/
Books
Librarians Rock!
OCU Copyright Policy (when completed)