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Copyright In The Online Learning Environment

by SUNY Empire State College

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The Empire State College Online Library is launching the new Copyright Information Web Site, which includes information on the public domain, open content and the Creative Commons, the fair use ...

The Empire State College Online Library is launching the new Copyright Information Web Site, which includes information on the public domain, open content and the Creative Commons, the fair use exemption, the educational use exemption, DMCA takedown procedures, getting permission, and more. This presentation provides an introduction to that resource, focusing on items of particular interest to faculty designing courses and mentoring in the online learning environment.

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There are currently four full-time professional librarians at the Empire State College Online Library. We maintain the ebooks, journal article databases and multimedia sources, but we spend most of our time on providing services to the college. Our reference service, called Ask A Librarian, is available 66 hours a week. We work with faculty to integrate information literacy and metaliteracy learning objectives and resources into courses. We also maintain the Information Skills Tutorial and a collection of research how-tos. One of our newer roles is educating the college about copyright, and supporting faculty, staff and students in following copyright laws, policies and best practices. To that end, we just launched the Copyright Information Web Site, which I’ll be showing you today during the course of the presentation.
Yes/no/no/maybe
The point of asking you those questions was to demonstrate just how messy copyright can be. It’s too big a topic to know everything about it, and too complex to memorize some rules of thumb. And even if you could just remember a few simple rules, copyright is in a constant state of flux. So the solution isn’t to know all the answers. It’s knowing the right questions to ask, and where to get the answers. I created the Copyright Information Web Site to be one place you could go for all the answers you need about copyright in the higher education environment, particularly online higher education.
What I want to do right now is give you a quick tour of the Copyright Information Web Site so you have an idea of its layout.ShortcutHow to get there from the library web siteFAQTopics (alphabetical)Resources (alphabetical)
Copyright is fundamental to U.S. law – it’s in the Constitution, where its purpose is stated as promoting the progress of science and the useful arts, by securing certain exclusive rights to authors for limited times. So the priority is the public good that derives from the progress of knowledge. The author’s right to a profit is just a means to that end. Those rights are the right to make copies of the work, the right to share or sell those copies, the right to create derivative works, which means new editions or versions or works based on the original work, the right to share or sell those derivative works, and finally, the right to license other people to do those things. And those rights are by nature limited. For one thing, copyright only lasts a certain amount of time. Then it expires and the work falls into the public domain and anyone can do anything with it – make copies of it, make money from it, anything. And copyright is also limited in the sense that there are specific legal exemptions like Fair Use, which I’ll talk about later.
First we need to talk about what is copyrighted and what isn’t. Facts can’t be copyrighted, and neither can ideas. So for instance, a data set, a research method or the plot of a story can’t be copyrighted. For something to be able to be copyrighted, it has to have the author’s own expression worked into it somehow. So a dataset can’t be copyrighted, but an infographic or chart can. A research can’t be copyrighted, but a chapter that describes how to do the research method can. A plot can’t be copyrighted, but once you combine it with a setting and characters and themes, it can. And if something is able to be copyrighted, its copyright takes effect as soon as it’s “fixed in a tangible medium of expression.” That means, written, recorded, saved to disk, posted to the Internet or anything like that. As soon as it’s in a form that can be preserved and transmitted independent of direct human contact, it’s copyrightable. Format doesn’t matter.
As I said before, the Constitution mandates that copyright be limited in duration. So when that time runs out, copyright expires and the work falls into the public domain. Another way a work can be in the public domain is if it’s a creation of the U.S. Federal Government and many of the state governments. When a work is in the public domain, none of the copyright rules and limitations apply. The work is completely free in two senses of that word. It’s free as in free of charge. You don’t have to pay royalties. And it’s free as in free of restrictions. You can do anything you want with it, including make and share copies, make derivative works and make money from it.
But how do you know if something is in the public domain? Unless it’s so old that it’s obvious, like Herodotus or Shakespeare, the rules are impossibly complicated. So I sat down and untangled them all and made the Public Domain Helper, which walks you through figuring it out. Here’s how to find it on the Copyright Information Web Site… Suzanne Collins – Hunger Games – 2008 USJK Rowling – Harry Potter and the Philosopher’s Stone – 1997 England and 1998 USJRR Tolkein – Lord of the Rings – 1954 EnglandJoseph Heller – Catch 22 – 1961 USUN World Water Development Report – 2006 Geneva
The next thing I want to talk about is the Creative Commons. You may have heard of Open SUNY and Open Learning and Open Educational Resources, and Creative Commons licenses are a big part of that.
Creative Commons developed as a way around the fact that copyright lasts so long that it’s usually a century or more before anyone can reuse a work, and also that the legal exemptions to copyright, like Fair Use, are being interpreted in an increasingly restrictive way by the courts. What Creative Commons is is a set of one-size-fits-all licenses that a copyright holder can choose to put on their work. These licenses work within copyright law, just like database vendor licenses and the licenses you get from copyright holders when you request permission. Creative Commons licenses allow anyone to copy and reuse and often create derivative works from the work that has the license. You don’ thave to ask permission or pay royalties, as long as you are working within what the license allows. The Creative Commons licenses are completely legal and hold up in court.
There are six different Creative Commons licenses, and each one has a slightly different set of restrictions and requirements. They’re all very easy to understand though…
Show the Creative Commons web pageShow the CC demo video
No answer – That’s ok. I’m not exactly sure I’m comfortable explaining all the details yet either!Partial right answer – Yes and…Wrong – That’s a very common misconception. Actually…
Fair Use is completely unlike any other part of copyright law, in that there is no way to know for sure if what you’re looking at is Fair Use. Public Domain is incredibly complicated, but it all boils down to rules. Fair Use isn’t a set of rules, but a set of very subjective and mushy guidelines. The reason it’s so ambiguous and subjective is that Fair Use has to be big and fluffy enough to let through all the socially beneficially uses that might occur, without having to create an ongoing list of them all. So Fair Use is decided by assessing the work being used and how it’s being used, on four different critera. They don’t all have to be positive, but the overall picture has to be favorable. In other words, you can flunk one of the four factors if you ace the other three, and it’s still fair use. Or you can do so-so on all four, and it’s still fair use. But obviously you want your fair use case to be as blatantly favorable as possible, so you can avoid copyright lawsuits, or at least win them.
I’ll go through each of the four factors briefly. The first factor is the purpose and character of the use. Examples of transformative uses:Using illustrations from an old cook book to talk about the evolution of commercial art stylesSampling a soundbyte from a political speech in a piece of musicTaking a scene from the TV show House and overdubbing your own dialogue to model good (or bad) patient care techniques in a memorable way
The second factor is the nature and character of the work being use. This has two components. One is, is it published or unpublished. It’s more likely to be favorable for fair use if it is published. Copyright law is more protective of unpublished works, because the copyright owner is supposed to have the right to release their work to the world, or to refuse to allow it to be released to the world. It’s also more likely to be a fair use if it’s a factual or non-fictional work. Many modern people consider creativity, all the different forms of art, and cultural progress to be just as important as science and technology, but the writers of the Constitution explicitly said that copyright was to promote science and the “useful arts,” meaning technology. So if what you want to use is literature, poetry, drama, music, dance or art, it’s not favorable for the second factor.
The third factor is the amount and substantiality of the part of the work that you’re using. This is both a quantitative and qualitative judgment.There are a lot of rules of thumb floating around. When I was a student, I heard that you could take 15% of a book. I’ve also heard 10% and 30%, and one chapter from a book or one article from a journal. None of these are true. There is no safe maximum. It is proportional to the size of a work. 300 words from a short poem might be almost all of it, while 300 words from a novel is a tiny fragment. But it’s not just about how much, either in absolute terms, or in proportion to the work as a whole. It’s also about how important that piece is to the work as a whole. For example, if I were to take a 30 second clip from the movie Shrek, it would make a difference which one I took. If I took the clip from one of the parts where Donkey is annoying Shrek, would be less of a problem than if I took the clip from the climactic scene where Fiona and Shrek are married and she is transformed into her true form. There was actually a case where a book reviewer took no more than a couple of sentences from a biography of Gerald Ford, and he lost his Fair Use case. This is pretty extreme, because book reviews are usually sacrosanct as criticism and commentary. But the two sentences he took were a big spoiler. They were a quote from an exclusive interview with President Ford, explaining why he had chosen to pardon Richard Nixon. So you can see that it’s not really about time stamps or page numbers or percentages. Less is more, but it’s just as much about whether what you take is the heart and soul of the work.
The fourth and final factor is market effect. Basically, this one looks at whether you’re going to hurt the copyright owner’s profits or even their potential profits. Market effect is going to be negative if you create a straight copy, because that means your product could substitute for the original. It’s going to be negative if you have a huge or unrestricted audience. And it’s usually going to be negative in the digital environment, which I’ll get into in a moment.Another thing to take into account is that copyright protects not only the author’s right to control and economically benefit from the original work, but also from any derivative works, whether they’ve created them or licensed others to create them. So for instance, some Harry Potter fans produced an encyclopedia of the series, and JK Rowling’s lawyers shut them right down. Not because JK Rowling had a similar product on the market, but because someday she might want to create one or license someone else to create one, and reap the royalties.
So as I just mentioned, market effect is usually negative in the digital environment. That’s not to say that you can’t have Fair Use online, but everything else has to be stricter. The reason is that it’s so easy to make infinite perfect copies and share them with a global audience. The potential for flooding the market with bootlegs is huge. So in order to make an online use more favorable for the fourth factor, you have to restrict copying and sharing so that it’s more analogous to what’s possible in the physical environment. You do that by setting up artificial technical barriers. You can put it behind a password so that only the people who need to access it can do so. You can also make sure that the content is taken down as soon as it’s no longer needed. Another thing you can do is prevent further copying and sharing. Audio and video should be put on a streaming server if possible, because that makes it much harder to download a copy to keep.
So if you restrict access with a password, and restrict copying and sharing the content as much as possible, you might have a situation where fair use is favorable online. But remember to look at the other three factors. If you’re doing something online, be extra careful that the purpose and character of the use, nature and character of the work being used, and amount and substantiality of the portion being used are all at least somewhat favorable.
If that seemed a little overwhelming, it’s all right. I’ve created a worksheet that you fill out. It serves two purposes. One, it walks you through the process of deciding whether what you want to do is fair use. And two, you can save your completed worksheet, or print it out, and it serves as documentation that you went through the thought process. That all by itself is a huge thing to have on your side if you ever get a takedown notice. It shows that you were aware of the issues and through them through, and were acting in good faith.
And one final thing about Fair Use is, whenever you are using copyrighted works under fair use, you should label it that way. Put a caption or a statement somewhere that provides the citation for the source material and says, that you’re using it under fair use.
So the next thing I want to talk about is what to do if the content you want to use isn’t in the public domain, and it’s not under a Creative Commons license, and what you want to do with it isn’t Fair Use. If you still want to use it, the next step is to ask the copyright owner for permission. And that usually will involve paying royalties.
The amount of royalties you’ll end up paying varies and it’s pretty unpredictable. If, for example, you just want to embed an article or book chapter in your online course, you’re usually looking at about thirty cents per student per page. But when you’re talking about fiction or creative works or multimedia, or using the content in a way that’s open to the public, the price becomes more unpredictable. Some copyright owners will see that you’re doing something educational and give you a low price. Others aren’t that nice. The college doesn’t have one centralized or streamlined way of getting permission and paying royalties. It’s left up to the individual faculty or staff member. But you shouldn’t be paying those royalties out of your own pocket. You should talk to your supervisor or department head about how they want you to approach it, and what kind of funds are available. You need to know how much you can afford to pay before you ask permission. You will also need to document the process and keep your license or contract as documentation.
And just like you should label it when you are using content under fair use, whenever you use copyrighted content with this kind of license you should always label it “Used with permission from the copyright holder,” because if you don’t, it can look like you are violating copyright.
So how do you get permission to use copyrighted content? The quick answer is that you ask the copyright owner. But knowing who owns the copyright and how to contact them isn’t that straightforward. In fact, the United States makes it really difficult because we don’t have a central agency that administers copyrights. The publishing industry handles it different from the movie industry, which handles it differently from the music industry, and copyright management for web content is complete anarchy. So I’ve created the Copyright Permission Guide to help sort it all out.
The Digital Millennium Copyright Act, or DMCA, limits the college’s liability for copyright infringements committed by faculty and staff, but it doesn’t protect us individually. In addition to that, the DMCA also requires the college to take away the computer accounts of people who have had repeat copyright violations. And without our computer accounts, we can’t do our jobs, so basically it forces the college to fire repeat offenders. Now that I’ve scared the pants off myself and everyone else, I want to reassure you that there is no immediate danger and it’s actually pretty easy to stay out of trouble. If you are paying attention to public domain, the Creative Commons, Fair Use, and getting permission when necessary, you won’t receive a takedown.
If you do get a takedown, possibly because the copyright owner has a different interpretation of fair use in a particular case, that’s not the end of the world either. But it is quite inconvenient. The DMCA prevents copyright owners from suing you over copyright infringement before they’ve issued a formal takedown. And if you comply with that takedown, they can’t go on to sue you.
As I said, the DMCA requires the college to carry out the DMCA takedown procedures. That means that we have a copyright officer that copyright owners can approach with their takedown notices, and the copyright officer enforces them. Our copyright officer is David O’Neill, the vice president of Integrated Technologies. If David gets a takedown notice, he is required by law to have the allegedly infringing content removed from the college’s servers immediately. That often means taking down entire courses or web sites, because he doesn’t have the ability to go in and surgically remove just the offending piece.What makes it worse is that he has to do it immediately, so the course or web site owner doesn’t get any advance warning. You will get notified as it happens or as soon as possible, but there’s nothing you can do about it right away.
If you comply with the takedown, you can edit your course or web site so it no longer includes the allegedly infringing content. Your course or web site goes back up, and that’s the end of it. You won’t be sued or get any criminal penalties.
But if you think that what you had was not infringing at all, then you have the option of issuing a counter-notice. There’s a form letter for that, which you submit to our copyright officer, and then you can put the allegedly infringing content back up. But before you do any of that, you need to talk to a lawyer, because once you issue the counter-notice and put the allegedly infringing content back up, they have a fourteen day window to take you to court for both civil and criminal penalties. If you wave a license at them, or you have a pretty solid Fair Use case, they might back down, but there is no guarantee, and you may be up against very expensive lawyers.This is part of the reason why it’s important to keep track of your licenses and document your thought process when you are deciding whether something is Fair Use. All that paperwork builds up your case.
DMCA takedowns are a mess, even though most of the time they don’t lead to lawsuits. There’s that whole window of time when your course or web site is offline, and if that falls in the middle of a term, it can cause problems. Fortunately, we don’t have many takedown situations because by and large, people are very aware of copyright issues and don’t post infringing content. Sometimes the library gets a concerned email from someone who spots a potential problem, and then we just talk to the person who put it up. Usually it’s just a matter of somebody embedding a PDF instead of linking to an article in the library databases, and it’s easy to fix. So whenever you have a question, just use the Ask A Librarian service. If you see something that worries you, talk to the person who put it there. You can show them the Copyright Information Web Site or tell them to talk to a librarian so we can help them fix it before it becomes a problem. Copyright awareness and self-monitoring are our biggest protections against takedowns and lawsuits.

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Javier Camarena, Derecho Administrativo y Ambiental at Consultoria Ambiental 5 months ago