Trending in CopyrightSetting the Standard in Fair Use:Best Practice Codesandthe Georgia State DecisionKathryn Miller GoldmanGoldman & Minton, P.C.Baltimorewww.charmcitylegal.com
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 specifiedby that section, for purposes such as criticism, comment, news reporting, teaching (includingmultiple copies for classroom use), scholarship, or research, is not an infringement of copyright.In determining whether the use made of a work in any particular case is a fair use the factors tobe considered shall include--(1) the purpose and character of the use, including whether such use is of a commercial natureor 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 awhole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.17 U.S.C.A. § 107Limitations on exclusive rights: Fair use
Codes of Best Practices in Fair UseCenter for Social MediaSchool of CommunicationAmerican University
Documentary Filmmakers’ Statement of Best Practices in FairUse (November 2005)Code of Best Practices in Fair Use for Online Video (June2008)Code of Best Practices in Fair Use for OpenCourseWare(October 2009)Code of Best Practices in Fair Use for Media LiteracyEducation (June 2010)Fair Use for Scholarly Research in Communication (June 2010)Code of Best Practices in Fair Use for Poetry (January 2011)Code of Best Practices in Fair Use for Academic and ResearchLibraries (January 2012)Codes of Best Practicesfacilitated by the Center for Social Media
Society for Cinema and Media Studies Statement ofFair Use Best Practices for Media Studies’Publishing (April 2007)Best Practices in Fair Use of Dance RelatedMaterials (2009)Codes of Best Practicesfacilitated by other organizations
Cambridge University Press, et al. v. Becker, et al. , ---F.Supp.2d ----, 2012 WL 1835696,N.D.Ga.,2012.The Claim:Copyright infringement based on:e-reserves (library managed course readings that are madeavailable to particular classes); andindividual course learning management pagesadministered by faculty membersCambridge University Press, et al. v.Becker, et al.
The Plaintiffs:Cambridge University PressOxford University PressSage Publicationsan early filing in the case confirmed that the lawsuit wasin fact being funded 50% by the Copyright ClearanceCenter (CCC) and 50% by the Association of AmericanPublishers (AAP)Cambridge University Press, et al. v.Becker, et al.
The Excerpts125 excerpts listed in the complaintReduced to 99 before trialFurther reduced to 75 at trialCambridge University Press, et al. v.Becker, et al.
The Defendants:President of the UniversityProvostProvost for Information SystemsDean of LibrariesThe Entire Board of RegentsNOT the 23 professors who posted the worksCambridge University Press, et al. v.Becker, et al.
The Original Claims:Direct infringementContributory infringementVicarious infringementInjunctive relief sought – not damagesCambridge University Press, et al. v.Becker, et al.
The DecisionOnly five instances found to be infringingIf statistics from the reserves platform showed that nostudents had actually accessed the excerpt – noinfringementUse is permissible if the professor copies no more than 10percent of the pages in the bookIf excerpts available at a reasonable price and in a digitalformat, the court could find in favor of the publishersCambridge University Press, et al. v.Becker, et al.
Fair Use is becoming more predictableCodes of Best Practices are an innovation form ofaccess to justiceGeorgia State decision upholding the checklistreinforces the usability of the fair use defenseConclusion
• Butler, Brandon C. "ISSUE BRIEF: GSU Fair Use Decision Recap and Implications." Association of ResearchLibraries, 15 May 2012. <http://www.arl.org/bm~doc/gsu_issuebrief_15may12.pdf>.• Cambridge University Press, et al. v. Becker, et al. , --- F.Supp.2d ----, 2012 WL 1835696,N.D.Ga.,2012.• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).• Heins, Marjorie, and Tricia Beckles. "WIll Fair Use Survive? Free Expression in the Age of Copyright Control."The Free Expression Policy Project. Brennan Center for Justice at NYU School of Law, 05 Nov. 2005.• Sag, Matthew. "Predicting Fair Use: An Empirical Study of Copyrights Fair Use Doctrine." DePaul UniversityCollege of Law, 2011. <http://www.law.depaul.edu/>.• Smith, Kevin, and Siva Vaidhyanathan. "The Georgia State Copyright Case: Issues and Implications."EDUCAUSE Homepage. EDUCAUSE, 8 Sept. 2011. <http://www.educause.edu/library/resources/georgia-state-copyright-case-issues-and-implications>.• Young, Jeffrey R. "Pushing Back Against Legal Threats by Putting Fair Use Forward." The Chronicle of HigherEducation, 29 May 2011. <http://chronicle.com/article/Pushing-Back-Against-Legal/127690/>.References
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