Transcript Design Process - National Center on AIM

The following materials were created for use in
a webinar presented on August 10, 2010 under
the auspices of the National Center on
Accessible Instructional Materials
These materials may be used for educational and informational purposes only.
Credits must be maintained. When referencing, please provide appropriate
attribution.
APA citation:
Zabala, J. & Hitchcock, C. (August 10, 2010). What’s Fair and Unfair about the
Fair-Use Provision in Copyright Law. Presented by the National Center on
Accessible Instructional Materials. Retrieved [month, date, year], from
http://aim.cast.org/experience/training/presentations.
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Welcome to the AIM Webinar Series for Student-Level Leaders:
What’s Fair and Unfair in the Fair-Use Provision in Copyright Law
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Joy Zabala, Ed.D., ATP
Director of Technical Assistance
for CAST and the AIM Center
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What’s Fair and Unfair About the Fair-Use
Provision in Copyright Law
Joy Zabala and Chuck Hitchcock
The National Center on Accessible Instructional Materials
Center for Applied Special Technology (CAST)
www.cast.org
Accessible Instructional Materials
The Legal Connection
Provisions within the Individuals with Disabilities
Education Improvement Act of 2004 require state and
local education agencies to ensure that textbooks and
related core instructional materials are provided to
students with print disabilities in specialized formats in a
timely manner.
Section 300.172, Final Regulations of IDEA 2004
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Section 300.172, Final Regulations of IDEA 2004
• “Adopt the NIMAS” National Instructional Materials
Accessibility Standard… include the requirement to
produce a NIMAS-compliant file in all purchasing contracts.
No statutory requirement is placed on publishers.
• Decide whether to “coordinate with the NIMAC”
National Instructional Materials Access Center. All 50
states have opted to coordinate.
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Section 300.172, Final Regulations of IDEA 2004
This section of the Regulations also explicitly states that
provisions must be made for providing instructional materials in
accessible formats to students with disabilities (served under
the Act)
– Who are not included under the definition of blind or other
persons with print disabilities
– When the materials are not producible from NIMAS files
– In a timely manner… “at the same time as other children
receive instructional materials” or however “timely manner”
is defined by the state.
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Eligibility for Multiple Sources of AIM
NIMAC
1. Served under IDEA
2. Certified as having a print disability as defined in copyright
statute (Chafee Eligible)
Accessible Media Producers (AMPs)
General Collection: Individuals eligible under copyright statute
NIMAS-Sourced Collection: Same as NIMAC
Commercial Sources Purchase for anyone, use with anyone!
Free Sources
No limitations
Do-it-Yourself
It depends!
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Purpose of this Session
This session does not provide legal opinions but general
guidance to support the provision of AIM to students that
will benefit from it and to whom other sources are not
available.
This session is designed to raise the awareness of
educators and families about the four elements of the
Fair-Use Provision in Copyright code and how those
elements logically apply to thinking about the provision of
instructional materials.
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Big Ideas for this Session
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Fair Use Myths and Gray Areas
Key Points
Four Elements of “Fair Use”
Fair Use Analysis Tool
Clarifying Litigation
Supports and Resources
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FAIR USE MYTHS
AND GRAY AREAS
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Myths and Gray Areas
Myth
If copied or quoted material is used only for educational purposes it
is covered by Fair Use.
Gray Area
The distinction between fair use and infringement may be unclear
and not easily defined.
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Myths and Gray Areas
Myth
As long as the author and source of the material are cited, materials
can be copied and used for educational purposes.
Gray Area
Acknowledging the source of the copyrighted material does not
substitute for obtaining permission from the copyright holder.
www.cast.org
Myths and Gray Areas
Myth
If there are no funds to purchase copyrighted educational materials,
copying those materials is covered by Fair Use.
Gray Area
Financial impact on the copyright holder is a factor that must be
considered.
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Myths and Gray Areas
Myth
There are guidelines that state how much of a material can be
copied and distributed under Fair Use. Copying is legal if guidelines
are followed.
Gray Area
There is no specific number of words, lines, or notes that may safely
be taken without permission.
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Myths and Gray Areas
Myth
Under Fair Use a printed educational material can be scanned and
transformed for students who need either an accessible format of
the material or modification of the material.
Gray Area
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Key Points
• Fair Use is intentionally vague and subject to broad
interpretation
• Fair Use guidelines are generally considered
confusing and difficult to apply
• Fair Use applies to print and digital resources
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FOUR ELEMENTS OF “FAIR USE”
Section 107 of the U.S. Copyright Code of 1976
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Section 107 of Copyright Law (title 17, U. S. Code)
Section 107 contains a list of the various purposes for
which the reproduction of a particular work may be
considered fair:
Examples:
•Criticism, comment, news reporting
•Teaching, scholarship, research
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Four Factors for Determining Fair Use
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
4. The effect of the use upon the potential market for, or
value of, the copyrighted work
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University of Minnesota Resources
• Clarity: University of Minnesota Libraries Copyright
Tools
– http://www.lib.umn.edu/copyright/
• Copyright Decision Map
– http://www.lib.umn.edu/copyright/map.phtml
• Fair Use Analysis tool—four factor review of your
proposed use
– http://www.lib.umn.edu/copyright/checklist.phtml
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FAIR USE ANAYSIS TOOL
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Factor #1: Purpose and character of use
• Favors Fair Use:
– Instruction, restricted-access course web sites,
research, and/or personal use
– Transformative use (creates a new work with a new
purpose)
– Statutory uses, criticism, comment, and/or news
reporting
• Weighs Against Fair Use:
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Commercial use, for publication
No attribution to original authors
Profiting from use
Public distribution
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Comment on Transformative Use
“Transformative uses, uses that result in the creation of
a new work, with a new purpose and different character
are favored as fair uses over uses that merely
reproduce an original work.
The more transformative a particular use is the less
significant the other factors will be as they weigh
against fair use.”
http://www.lib.umn.edu/copyright/purpose.html
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Factor #2: The nature of the copyrighted work
• Favors Fair Use:
– Published
– Factual, non-fiction
• Weighs Against Fair Use:
– Unpublished
– Creative, artistic, fiction
– Consumable (once used is unusable by others)
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Comment on Consumables
“Additionally certain ‘consumable’ works, e.g.,
workbooks and standardized tests, are not likely to be
considered available for fair use.”
http://www.lib.umn.edu/copyright/nature.html
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Factor #3: Amount and substantiality
of the portion used
• Favors Fair Use:
– Small excerpt, extract, or clip
– Only portion needed for favored purpose
• Weighs Against Fair Use:
– Entire work
– Portion used is "heart of the work"
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Comment on Amount
“Use of the whole work is less likely to be considered a
fair use… However in some circumstance…use of the
entire work may be appropriate and allowable as a fair
use if using that much is required to accomplish the
purpose.”
http://www.lib.umn.edu/copyright/amount.html
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Factor #4: Effect on the potential market for
or value of the work
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One or few copies made
Use stimulates market for original work
No impact on market
No licensing/permission mechanism in place
• Weighs Against Fair Use:
– Impairs market for original work
– Repeated use license/permission available
– Multiple copies, not for educational purpose
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Comment on Economic Harm
“Generally the consideration for this factor is whether or
not there is some economic harm to the owner of the
copyright as a result of the use. Courts have established
the availability of permissions or licenses as one of the
potential values for copyrighted works…
If the first three factors weigh in favor of fair use then
market harm should carry less weight…”
http://www.lib.umn.edu/copyright/market.html
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Sample Report
Fair Use Analysis Tool Summary: Favors Fair Use
– Your analysis of the four factors suggests that your proposed use
favors fair use. An analysis that weighs favorably toward fair use
supports this use of the material under the circumstances you
described without getting permission from the copyright owner.
Detailed Report (condensed)
– In determining fair use there are no simple answers. Each use is
dependent on the conditions for that use. After considering and
examining the four factors, the factors need to be weighed against
each other. No one factor makes the use fair or unfair. And, at
times, depending on particular circumstances, some factors may
carry more weight than others.
– You’ve analyzed purpose to be strongly favorable towards fair use.
– You’ve analyzed nature to be strongly favorable towards fair use.
– You’ve analyzed amount to be somewhat against fair use.
– You’ve analyzed market to be neutral towards fair use.
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LITIGATION
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General Findings—Lower Courts
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Most lower court cases pertain to only two of the four factors (focus on
monetary issues)
– the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes (1)
– the effect of the use upon the potential market for or value of the
copyrighted work (4)
Typically results in a finding of fair use only if there is a new work
created and if there is no perceived impact on the market for the
copyrighted work
Courts have favored transformative works as adding value to society (as
opposed to a direct copy)
Courts have been willing to consider lost permission or license fees to
copyright owners as a measure of market harm (when such fees are
established by the copyright holder)
Reference
– http://legacy.lclark.edu/~loren/articles/fairuse.htm
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General Findings—Supreme Court
• The Supreme Court has focused on issues such as
transformation and the extent to which it promotes the
progress of knowledge and learning (e.g., a parody of
a work)
• Consistently focused on the constitutional goal of
copyright
• benefit to society
• progress of knowledge and learning
• Generally backs away from the market harm arguments
including license fee arrangements
• Fair use is viewed as a right, not simply a privilege or
an exception to copyright law
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Related K–12 Litigation
• No case law is available pertaining to the creation
of accessible materials in K–12
• One case pertaining to student rights vs. copyright
– Newport-Mesa Unified School District v. State of
California Department of Education, 371 F.Supp.2d
1170 (C.D.Cal. 2005).
• Problem: Violation of CA Sped Law or the
Federal Copyright Law
• Finding: Providing a copy of a copyrighted test
protocol fit well within the fair use exemption
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OCR Findings of note in Higher Ed
• Complaints filed against American River College and
Sacramento City College (9/93)
• Due to the "range of disabilities" and the "primary consideration"
accorded the individual's preference in the manner accommodation
offered, the post-secondary public institution should be prepared to
deliver in a reasonable and timely manner the printed materials
relied upon in its educational program in all of the following
mediums: auditory, tactile (Braille), and enlarged print.
• The importance and consequences of student comprehension is a
critical factor in determining whether to honor a student's preferred
medium.
• OCR concluded that the District voluntary resolution plan resolves
the issues in these cases.
• Any future failure by the District to implement its voluntary resolution
plan may, upon completion of an OCR investigation, result in OCR
finding the District in violation of Section 504 and/or Title II.
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OCR Findings of note in Higher Ed
• Complaint filed against the California State University, Fullerton (2003)
• The complainant alleged that the University discriminated against her based
on her disability, visual impairment/legally blind. The issues OCR
investigated were whether the complainant’s documented and authorized
academic adjustments were implemented in a timely manner and whether
the method of administration utilized to produce electronic text materials
(alternative print format) created barriers to the complainant’s ability to
participate in the educational program.
• OCR enforces Section 504 of the Rehabilitation Act of 1973 and its
implementing regulation.
• OCR concluded that the evidence established that the University did not
provide the student academic material in an appropriate, accessible
alternative format and in a timely manner for classes that she registered for
in spring 2003, summer 2003, and fall 2003.
• After discussions with OCR, the University agreed, without admitting to any
violation of law, to take actions to resolve the issues raised by this complaint.
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New Rule-Making
• Rule-Making on Exemptions from Prohibition on
Circumvention of Technological Measures that
Control Access to Copyrighted Works
• The Librarian of Congress has announced the classes of works
subject to the exemption from the prohibition against circumvention
of technological measures that control access to copyrighted works.
Persons making noninfringing uses of (the following six) classes of
works will not be subject to the prohibition against circumventing
access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the
next rule-making.
• (6) Literary works distributed in e-book format when all existing ebook editions of the work (including digital text editions made
available by authorized entities) contain access controls that prevent
the enabling either of the book’s read-aloud function or of screen
readers that render the text into a specialized format.
• See http://www.copyright.gov/1201/
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In Summary…
• Every student with a disability has a right to a free,
appropriate, public education
• Timely provision of accessible instructional materials
is required by IDEA 2004
• When other alternatives exist—certification, purchase,
license, permissions—they must be exercised
• Fair Use should be the alternative of last resort and
must be thoughtfully considered
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RESOURCES
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Useful Resources
• Copyright Law of the United States of America and Related
Laws Contained in Title 17 of the United States Code
– http://www.copyright.gov/title17/92chap1.html
• Copyright and Fair Use, Stanford University Libraries
– http://fairuse.stanford.edu/
• NCTE Guideline, Code of Best Practice in Fair Use for
Media Literacy Education, Adopted by the NCTE Executive
Committee, November 2008
– http://www.ncte.org/positions/statements/fairusemedialit
eracy
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Useful Resources
• Fisher, W. W. & W. McGeveran. 2006. The digital learning
challenge: Obstacles to education uses of copyright
material in the digital age. Berkman Center for Internet and
Society Research Publication Series (September): 1-117.
– http://cyber.law.harvard.edu/media/files/copyrightanded
ucation.html
• U.S. Public Law 105-304, 112 Stat. 2860, 2877. 28
October 1998. Digital Millennium Copyright Act. Title II
Online Copyright Infringement Liability Limitations
(amending chapter 5, Title 17 U.S.C. §512).
– http://www.copyright.gov/title17/92chap5.html#512
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Useful Resources
• U.S. Public Law 107-273, 116 Stat. 1758, 1910. 2
November 2002. Technology, Education, and Copyright
Harmonization Act 2002 (amending chapter 1, Title 17
U.S.C. §110 (2)).
– http://www.copyright.gov/title17/92chap1.html#110
• Additional case law references regarding Fair Use and the
four factors
– http://en.wikipedia.org/wiki/Fair_use
• Fair Use Analysis
– http://www.kasunic.com/Fair%20Use%20Analysis.htm
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