Transcript Copyright Basics and Fairer Fair Use Jane Morris Scholarly Communication Librarian Boston College The whole point Congress shall have the power … To promote the progress.

Copyright Basics
and Fairer Fair Use
Jane Morris
Scholarly Communication Librarian
Boston College
The whole point
Congress shall have the 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 Constitution, Art.I, Sec 8)
What’s protected
• Original works of authorship
• Fixed in a tangible medium
• Expression, not ideas or facts
How do you get copyright in what
you create?
• The easiest part – Do Nothing!
• "copyright" is a bundle of exclusive rights,
conferred by federal statute (Title 17
U.S.C.) automatically, upon the author of a
work, at the instant of its creation.
What exclusive rights does the
copyright holder have?
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To reproduce the copyrighted work in copies;
To prepare derivative works (the movie of a
book is a derivative work);
To distribute copies of the copyrighted work
publicly;
To perform the copyrighted work publicly;
To display the copyrighted work publicly, and
In the case of sound recordings, to perform
the copyrighted work publicly by means of a
digital audio transmission.
That is the bundle
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You can keep all the sticks,
give some away or
share some or
sell some
Important exceptions to the
exclusive rights
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Works in the public domain
Fair use
Classroom teaching
Permission given up front (Open Access)
What’s in the public domain?
Public domain works not protected by copyright
law:
• works where the creator has expressly
disclaimed a copyright interest;
• works created by the federal government, for
example, data files from the 1990 Census; and
• works created and published before 1923, but
then it gets complicated
Public domain chart
Fair use
Fair use of a copyrighted work for purposes
such as
• Criticism
• Comment
• News reporting
• Teaching
• Scholarship or
• Research
Is not an infringement of copyright.
What use is “fair”?
The statutory factors must be “balanced”:
• The purpose and character of the use
• The nature of the copyrighted work
• The amount, substantiality, or portion
used in relation to the copyrighted work as
a whole
• The effect of the use on the potential
market of the copyrighted work
The purpose and character of the use
• Is it for nonprofit, educational or
commercial use?
• Educational use is a factor in favor of fair
use, but it is only one factor.
The nature of the copyrighted work
• Creative works and unpublished works are
given greater consideration than
published, informational works.
• The workbook example
The amount and substantiality of the
portion used
Requires consideration of
• the proportion of the larger work that is
copied and used, (Did you use a large part
of it?) and
• the significance of the copied portion
(Is the part you used the heart of the work?)
The effect of the use on the potential
market of the copyrighted work.
• This factor is regarded as the most critical
one in determining fair use.
• If the reproduction of a copyrighted work
reduces the potential market and sales of
the copyright owner, that use is unlikely to
be found a fair use.
Guidelines: Resist the temptation!
• There are many guidelines, rules of
thumb, safe harbors, but they are not part
of the law.*
• They are tempting because they are
Black and
• Fair Use is very GRAY
• The good faith defense protects librarians
Context is everything
• Courts interpret the law (the four factors)
• They also make policy
• Be the good guy
– Your use generates social or cultural benefits
that are greater than the costs it imposes on
the copyright owner.
Transformative use
• Have you transformed the work in some
way (related to factor 1)
– Purpose
– Context
– Audience
– Insight
• Use only the amount needed to
accomplish your purpose
Code of Best Practices in Fair
Use in Academic and Research
Libraries
January 2012
ARL, Center for Social Media, Program on
Information Justice and Intellectual Property,
Washington College of Law, American University
Doesn’t change the law so why
write it?
• Fair use is court-interpreted, flexible
• Deciding fair use requires a thoughtful
evaluation of the facts, the law, and the
norms of the relevant community.
• Effort to come to consensus on what those
standards are among librarians
– Adapts fair use to the library mission
– Identifies them, solidifies them, makes them
explicit and enhances reliability
Principle 1
It is fair use to make appropriately tailored
course-related content available to enrolled
students via digital networks.
Course reserves
• Not material marketed for courses (texts,
workbooks)
• Time-limited to enrolled students
• Connected to purpose in kind/amount
• Good faith – info to students and
instructors; full attribution
• Document fair use rationale; review
periodically
Principle 2
It is fair use for a library to use appropriate
selections from collection materials to
increase public awareness and engagement
with these collections and to promote new
scholarship drawing on them.
Marketing collections
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Full attribution
Amount and format appropriate to purpose
Images (low res)
Exhibit catalogs – no charge beyond cost
Use technology; discourage downloading
Provide feedback mechanism
Principle 3
• It is fair use to make digital copies of
collection items that are likely to
deteriorate, or that exist only in difficult-toaccess formats, for purposes of
preservation, and to make those copies
available as surrogates for fragile or
otherwise inaccessible materials.
Preservation copies
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Only when digital version is not available
Not to increase circulating copies
Off-premises access for authorized users
Full attribution
Use technology to prevent redistribution
Feedback mechanism
Principle 4
It is fair use to create digital versions of a
library’s special collections and archives and
to make these versions electronically
accessible in appropriate contexts.
Special collections
• Uniqueness counts
• Sensitivity to privacy issues
• Can’t locate creator, not commercially
exploited
• Technological protections
• Feedback mechanism
• Collection in its entirety
• Add context, commentary, etc.
Principle 5
When fully accessible copies are not readily
available from commercial sources, it is fair
use for a library to (1) reproduce materials in
its collection in accessible formats for the
disabled upon request, and (2) retain those
reproductions for use in meeting subsequent
requests from qualified patrons.
For the disabled
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Time limited
Work with disability services
Tech protection
Consistent policies and publicized for the
affected community
Principle 6
It is fair use for a library to receive material
for its institutional repository, and make
deposited works publicly available in
unredacted form, including items that
contain copyrighted material that is included
on the basis of fair use.
Work submitted to IR
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Feedback mechanism
Educate on fair use
Full attribution
Clear institutional policy
Individual help with decisions
Principle 7
It is fair use for libraries to develop and
facilitate the development of digital
databases of collection items to enable
nonconsumptive analysis across the
collection for both scholarly and reference
purposes.
Principle 8
It is fair use to create topically based
collections of websites and other material
from the Internet and to make them
available for scholarly use.
GSU e-reserves decision
• Brought by publishers; financed by CCC
• Concerned e-reserves and electronic
course sites
• Dealt with excerpts from books – no other
media
• GSU used a fair use checklist
Factor analysis
• Purpose and character – favors libraries
(but not transformative)
• Nature of the work – favors nonfiction use
Factor 3
• Amount and substantiality
– 10 chapters or less, use 10%
– More than 10 chapters – use one
– Not the heart of the work
– Rejects classroom guidelines
– Use all pages to determine the 10%
– Chapters are not separate works
– Multiple semester use OK
– Amounts are not absolute
Factor 4
• Effect on the potential market
– Favors the rightsholder
– BUT – there must be a readily available and
reasonably priced license of digital excerpts
(not the whole work)
– Is the excerpt so large it threatens market for
the whole?
Additional considerations
• If no one reads it – no harm done
• Consider policy implications – does the
use encourage creative work
• Court dismissed the idea that the licensing
revenues are significant loss
• Strict mathematical analysis – 3:1 wins, no
matter which 3
• Narrower/more mechanical than the Code
Now what?
• Of the original 99 excerpts only 5 were
infringing
• Decision is not binding on other libraries
but provides a safe harbor for the risk
averse
• May be appealed
• Only dealt with book chapters not other
media
Learn more
• Copyright Term and Public Domain
• Columbia University Libraries Copyright
Advisory
• CU Fundamentals of Copyright podcasts
• Code of Best Practices in Fair Use in
Academic and Research Libraries
• ARL Issue Brief on the GSU e-reserves
case and webcast