Fair Use and Copyright in Teaching and Scholarship


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Slides from a workshop for faculty and staff at Wake Forest University for OA Week 2012

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  • Agenda
  • So now that we know what copyright is and what types of works it covers, we can discuss fair use, which applies to using copyrighted works
  • As I heard Brandon Butler, ARL, say recently, fair use is like heaven: no two ideas about fair use are the sameFair use is designed to evolve with a changing social and economic practices; it is a space for creativityFair use is a socially-positive use so as not to be infringingNotwithstanding 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. 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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
  • 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. (5) Although not codified in Section 107, the issue of transformative use is increasingly important in determining fair use; defining transformative use, though, can be tricky; does not require physical transformationTwo meanings of transformative use:Making something new: most courts accept thisAs repurposing: many but not all courts accept this (e.g., TurnItIn & student works; new context, audience, insight)
  • Determining fair use is about weighing the factors collectivelyThe more that tip toward fair the stronger your analysisIf you can answer yes to the following questions, your use is likely fair:Are you using the material to illustrate a specific point?Is the amount used sufficient, but not excessive, to illustrate the point?Is it clear to the audience what point you’re making?
  • Classroom exemptions really only cover public performance and displayTEACH Act covers online learning environments; it’s tricky and not a work-around for whatever you might want to do, as it again only covers performanceDMCA (Digital Millennium Copyright Act) is reviewed every three years for interpretation, and most recently expanded to allow showing clips ripped from a legally-obtained DVD is fair for faculty, but only students in media studies
  • Works in the public domain, which in the US are works published before 1923 or government works, are automatically permitted for use, as copyright has expired and no one can claim - caveat: new arrangements of public domain musical works likely subject to copyright!Creative Commons licenses tell users up front what they can, and cannot, do with the original workPermission can always be soughtIf you retained adequate rights, which we’ll discuss next, then you can use your own published works when teachingAs mentioned in the fair use section, certain types of uses of copyrighted works are considered fair and this includes in the classroom; however, simply being an educational use is not enough!! - distributing printed copies of an article to your class for review in-class an example of a use that is fair - playing mood-setting music NOT FAIR - distributing or posting scans of textbook or educational materials is NOT FAIR
  • Once might be fair, but always best to either link or place on course reserves with the library, as there are often licensing restrictions that trump copyright – including fair use! – that are unknown to usersFair, even if rights are reserved, so long as the presentation is given one time, isn’t posted publicly, and attribution is givenIf permission given by students, OK; if not, then infringing on students’ copyrights
  • Despite getting all the great rights under copyright, too often authors simply give them all away, not understanding the full extent of what they are doingBecause copyright can only be given away in writing, and because copyright transfer agreements or publishing agreements are required by publishers, authors frequently sign the agreements verbatim, sadly often without really reading them, which limits their ability to reuse their own works and also to explore different access options for their scholarship that I noted earlier.However, not all rights have to be given away: copyright rights can be broken apart, and authors are not without some recourse: licensing, addenda and negotiation are all available options – BUT the author needs to know about them.Licensing enables the copyright holder, whether that is the author or the publisher, to license partial rights to the other party; Creative Commons licenses are one way, addenda, which are added to copyright transfer agreements and essentially revert rights to the author that she desires, are another way. Publishers don’t really like addenda, but at least is opening for negotiation
  • When you are publishing, think about what reuses are important: distribution to colleagues, teaching, web access, conference presentation, re-publication; if you think of the rights you might want, you don’t have to fight for them laterWhen authors take control of their copyright and negotiate rights for themselves, faculty, librarians, students – all users – are freed from the limits of fair use, which although not horrifically limiting, are not as broad as when authors fight for their rightsWhen authors do not take control of their copyright, their hands are just as tied as our own in reusing works – a fact that unfortunately few faculty understand, partly because they abuse the system and use their works how the want to regardless and partly because we aren’t helping to educate them about copyright management
  • Common practice in many fields, and therefore not a violation of authorship principles; despite not directly contributing to writing of the article, being a co-creator of the work detailed in the article, and being listed as a joint author gives her equal copyright ownership As long as the author(s) have either retained copyright or have express permission from the publisher to include, it’s OK; need to be mindful of publisher embargoes and requirements for sharing dissertation electronicallyCreation and use of the database is fair: transformative use of original works; releasing database of articles for others to use is not fair, as it’s a market substitution for collected articles; *warning* there might be hidden licensing issues governing use of articles downloaded from library databases
  • Historically over-emphasized the fourth factor, looking almost exclusively from the business angleShifting to now ask “why” this use(Over?)emphasis on transformative use began rising in 1990s
  • One key point is that Judge Evans *affirms* the role of fair use in providing digital access to materials in support of teachingCritical that the case only focused on scholarly books, not journals, not creative works used in teaching (poetry, novels, etc.), not materials created expressly to support learning (textbooks)Although transformative use was rejected, establishes that a use does not need to be transformative to be determined fair
  • Overview of what HathiTrust is doingArgument over HathiTrust was largely over *distribution* of works, not copyingArgument that a potential future market might be impacted struck down by judgeArgument that libraries cannot claim fair use because of library-specific provisions outlined in following section rejected *since it’s in the law that 107 stands*Judge Baer’s concluding sentence:“I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.”
  • *insert resources/questions slide*
  • Fair Use and Copyright in Teaching and Scholarship

    1. 1. Fair Use and Copyright in Teaching and ScholarshipMolly KeenerScholarly Communication LibrarianWake Forest UniversityOctober 25, 2012
    4. 4. What is copyright?Copyright is a bundle of rights:• Reproduction• Distribution• Derivative creation(s)• Public performance• Public display The right to license any of the above to third parties
    5. 5. What copyright protectsCopyright protects… Copyright doesn’t protect…• Writing • Ideas• Choreography • Facts• Music • Titles• Visual art • Data• Film • Useful articles (that’s• Architectural works patent)
    6. 6. Who owns copyright?• Individual creator• Joint creators• Corporate creators via “work made for hire” – with some exceptions*And any person or entity to whom copyright is given by the original owner in writing *Teaching materials & scholarly publications
    7. 7. Requirements for protection• An original work• Creativity (just a dash)• Fixed in a tangible medium of expression
    8. 8. How do we get copyright?• Copyright exists from the moment of creation, and lasts for the life of the author plus 70 years• You used to need a little c in a circle, and to register your work with the copyright office, but you don’t anymore Copyright just happens.
    9. 9. As run the sands of time…• The bundle of copyrights lasts a long time: – Life of the author plus 70 years – For joint works, 70 years after death of last author – For works for hire or anonymous works, 95 years from publication or 120 years from creation, whichever expires first
    11. 11. So what is Fair Use?• Part of U.S. copyright law 17 USC § 107 – Limitations on exclusive rights: Fair Use• Protects uses of copyrighted works without need for permission• Types of protected uses include: • Criticism • Comment • News reporting • Teaching (including multiple copies for classroom use) • Scholarship • Research
    12. 12. The “four factors” of Fair Use1. Purpose: how is it being used?2. Nature: what type of work is it?3. Amount: how much of the whole? Heart?4. Impact: market effect? 5. Transformative use
    13. 13. IN TEACHING
    14. 14. Teaching-specific uses outlined in law• Classroom exemptions • More limited than you may think! • Must be in a classroom or similar space, in person, with only enrolled students, at a non-profit educational institution • NOT online (see below) and NOT distributing copies (see above), just public performance and display• TEACH Act• DMCA • Not explicitly about education, but impacts
    15. 15. Other ways to use © works in teaching• Public domain• Licenses, such as Creative Commons• Permissions • Individuals • Publishers• Your own works*• FAIR USE!
    16. 16. Scenarios for discussion1. A faculty member downloads an article from a library database and posts in Sakai for students to read.2. A student includes an image found online in a class presentation.3. A faculty member creates a website from class work and includes work of former students.
    17. 17. IN SCHOLARSHIP
    18. 18. Managing copyright when publishing• Copyright can be transferred only in writing• Licensing allows specific rights to be retained: • Authors keep copyright and license other rights (e.g., first publication) • Publishers take copyright and license rights back (e.g., reproduction, derivatives)• Negotiating rights retention is beneficial• Open Access publishers usually do not require full transfer of copyright
    19. 19. The secrets of reuse• By the author • If specific rights retained, reuse is possible • If no rights retained, then Fair Use or by permission• By others • If published open access, then freely accessible – and possibly more • If published under a Creative Commons license, then within limits defined by the license • If published traditionally, then Fair Use or by permission
    20. 20. Scenarios for discussion1. A PI is listed as an author on an article, even though her direct contributions came through lab research, not writing.2. A graduate student wishes to include two published articles as chapters in his dissertation.3. A faculty member wants to create a database of indexed articles for text-mining.
    22. 22. Georgia State University• Filed in 2008, verdict in 2012• Infringement found in only 5 of 99 instances• Subsequent semester use still fair• Fair Use victory, with limitations • “Bright-line” rule of 10% or 1 chapter, excluding heart • Only alleged infringement with scholarly books• Plaintiffs (Cambridge UP, Oxford UP & SAGE) intend to appeal
    23. 23. Google Books• Filed in 2005, partially settled in 2012• Original settlement rejected in 2011• Little change for users• Not a Fair Use victory, as Fair Use not argued• Authors Guild suit still open, pending class action appeal
    24. 24. HathiTrust• Filed in 2011, dismissed on summary judgment in 2012• Resounding Fair Use victory• Argument that library-specific provision in copyright law negates Fair Use rejected• Appeal on summary judgment dismissal more difficult than standard trial appeal
    25. 25. Attribution• Slide 5: “Bundles” http://www.flickr.com/photos/fboyd/2156630044/• Slide 14: “Seesaw” http://www.flickr.com/photos/nzgabriel/2607065194/• Slide 28: “sensitive noise / obvious 2” http://flic.kr/p/8HDJ5BThis work is partially based on work created by Molly Keener and Kevin Smith for theACRL Scholarly Communication 101 Road Show, and was last updated on October 24,2012 by Molly Keener. It is licensed under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. To view a copy of this license,visit http://creativecommons.org/licenses/by-nc-sa/3.0/us/ or send a letter toCreative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105,USA.
    26. 26. Ask me!keenerm@wfu.edux5829402 ZSR Library