UNHInnovation Creative Works Symposium: Copyright Fair Use slide deck Presenters: Nate Kurtis and Jessica Alfano, Associates, Ropes & Gray

1. ROPES & GRAY LLP
Copyright Exceptions &
Fair Use

2. ROPES & GRAY
Introduction
• Nate Kurtis, Associate
– BS, AB, MBA, JD
– Use, licensing and other transactional
applications of intellectual property
• Jessica Alfano, Associate
– BS, BA, JD
– Transactional applications of
intellectual property and regulatory
work for life sciences companies

3. ROPES & GRAY
Disclaimer
This presentation is provided for informational
purposes only. It does not constitute legal
advice and should not be relied upon as legal
advice. For specific legal advice, please
consult with an attorney.
While every effort has been made to provide
accurate and up to date information in this
presentation, laws and rules vary by state and
country, and change over time. You should
verify the current local rules and laws that
govern your legal issues.

4. ROPES & GRAY
Agenda
• Brief Copyright Background Summary
• Copyright Exceptions
• Fair Use
• Creative Commons

5. ROPES & GRAY
What is Copyright?
• System of Rights to Exclude
• Rights Granted in the Public Interest
– Constitutional Basis:
– Private Incentives v. Public Benefit
• Traditionally Common Law, Increasingly
Statutory
– Title 17 of the United States Code

6. ROPES & GRAY
Title 17 of the United States Code
Sec. 101 Definitions
Sec. 102
Protectibility
Sec. 105
Sec. 106 Exclusive
Rights
Sec. 107
Exceptions
Sec. 120
Reproduce
Distribute
Perform
Display
Create Derivative Works
Digital Retransmission
Do or Authorize The Doing
Sec. 200+ Transfer & Assignment
Sec. 400 + Registration
Sec. 500+ Litigation

7. ROPES & GRAY
Agenda
• Brief Copyright Background Summary
• Copyright Exceptions in the Academic
Context
• Fair Use
• Creative Commons

8. ROPES & GRAY
Exceptions to Copyright
• Fair Use Defense (§107)
• Reproduction by Libraries and Archives
(§108)
• Course Use (§110(1), Circular 21)
• The TEACH Act (§110(2))
• Others

9. ROPES & GRAY
Libraries and Archives
• A library or archive may create and
distribute one copy if:
– No direct or indirect commercial advantage
– Open to the public or researchers in a set field
– Includes a copyright notice
• Three copies for archival purposes
• Only applies to isolated and unrelated
reproductions and distributions, not
systematic or concerted.

10. ROPES & GRAY
Course Use
• Section 110 (1)
– Classroom or instructional performance or display
of a lawful copy of a work by an instructor or pupil
in the course of face-to-face teaching activities of
a nonprofit educational institution is not
infringement
• Circular 21
• One copy for instructor for research and prep work
• One copy per pupil for classroom use:
– Requirements: Brevity, Spontaneity, Non-cumulative
– Not a substation or replacement of the work

11. ROPES & GRAY
The TEACH Act, Section 110 (2)
• Provides a statutory exemption to enable
distance learning.
– Intended to merely allow the application of the
same principles applicable to in-face teaching
found in Section 110 to distance and
asynchronous education.
– Intended to modernize the provisions of the
Copyright Act for the 21st Century

12. ROPES & GRAY
The TEACH Act, Section 110 (2)
• Language added under the TEACH Act:
– (A) the performance or display is made by, at the direction of, or under the actual supervision
of an instructor as an integral part of a class session offered as a regular part of the
systematic mediated instructional activities of a governmental body or an accredited
nonprofit educational institution;
– (B) the performance or display is directly related and of material assistance to the teaching
content of the transmission;
– (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of
such transmission is limited to--(i) students officially enrolled in the course for which the
transmission is made; or (ii) officers or employees of governmental bodies as a part of their official
duties or employment; and
– (D) the transmitting body or institution-- (i) institutes policies regarding copyright, provides
informational materials to faculty, students, and relevant staff members that accurately describe,
and promote compliance with, the laws of the United States relating to copyright, and provides
notice to students that materials used in connection with the course may be subject to
copyright protection; and (ii) in the case of digital transmissions– (I) applies technological
measures that reasonably prevent-- (aa) retention of the work in accessible form by recipients of
the transmission from the transmitting body or institution for longer than the class session; and (bb)
unauthorized further dissemination of the work in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably be expected to interfere with technological
measures used by copyright owners to prevent such retention or unauthorized further
dissemination;''

13. ROPES & GRAY
The TEACH Act, Section 110 (2)
• Key Results of TEACH Act Amendments
– Facilitates growth and development of digital distance
education, namely asynchronous distance education, by
removing the concept of a physical classroom
– Accommodates new technologies by expanding the
copyright exemption, the types of transmissions

14. ROPES & GRAY
The TEACH Act, Section 110 (2)
• However, the language is limiting:
– “[R]easonable and limited portions” of copyrighted works, other than
non-dramatic literary and musical works, and works created for
mediated instructional use.
– Only available to government bodies and “accredited” non-profit
educational institutions.
– Only allows transmissions to students officially enrolled in the
course or to government employees as part of their official duties.
– The exclusion is limited to material whose primary market is not
“mediate instructional activities” i.e. materials that is typically
performed or displayed in a live classroom setting.
– Requires technological protection measures be taken to prevent
retention of the work and further downstream dissemination.

15. ROPES & GRAY
Agenda
• Brief Copyright Background Summary
• Copyright Exceptions in the Academic
Context
• Fair Use
• Creative Commons

16. ROPES & GRAY
Copyright Fair Use
• It is a statutory (affirmative) defense, not a
permission or a limitation on scope!
– Argued post infringement.
– Defendant’s burden to raise and prove.
• Courts apply a fact-specific, factored
analysis.
– SCOTUS: “…the fair use determination calls for
case-by-case analysis, and is not to be simplified
with bright-line rules.”

17. ROPES & GRAY
Copyright Fair Use
• Fair Use Factors:
– 1: The purpose and character of the use
– such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research
– 2: The nature of the copyrighted work
– 3: The amount of the work used
– 4: The effect on the market or value of the work
– Key … Maybe: Is the use “Transformative”?
– Does the use supersede the original or does it add
something new, with a further purpose or different
character, altering the original with new expression,
meaning or message?

18. ROPES & GRAY
Copyright Fair Use
• Don’t jump to fair use!
• Be very careful anytime your business
plan hinges on fair use:
– It won’t prevent litigation.
– Fact-specific, factored analysis does not provide
predictability of outcome.
– The defense can fail.
• There is no cutting edge technology
exception to copyright law!

19. ROPES & GRAY
Copyright Fair Use
• In 1972, a crack commando unit was sent to
prison by a military court for a crime they didn't
commit. These men promptly escaped from a
maximum-security stockade to the Los Angeles
underground. Today, still wanted by the
government, they survive as soldiers of fortune.
If you have a problem... if no one else can help...
and if you can find them... maybe you can hire...
The A-Team.

20. ROPES & GRAY
UMG Recordings, Inc. v. MP3.com
• Fair Use?
– Purpose:
• Commercial
– Nature:
• Close to Copyright Core
– Amount:
• Entire Works
– Effect:
• Usurps Further Market
• Not Fair Use.

21. ROPES & GRAY
Leibovitz v. Paramount Pictures

22. ROPES & GRAY
Leibovitz v. Paramount Pictures

23. ROPES & GRAY
Leibovitz v. Paramount Pictures
• Fair Use?
– Purpose:
• Humorous commentary, but $
– Nature:
• Moderate protection
– Amount:
• More than required to “conjure”
– Effect:
• Limited adverse effect
– Highly Transformative
• Fair Use.

24. ROPES & GRAY
Castle Rock Entertainment, Inc. v.
Carol Publishing Group, Inc.
The SAT:
– 643 Trivia Questions
– Back Cover:
• “Hundreds of
spectacular questions of
minute details from TV’s
greatest show about
absolutely nothing.”

25. ROPES & GRAY
Castle Rock Entertainment, Inc. v.
Carol Publishing Group, Inc.
• Fair Use?
– Purpose:
• Commercial, sold the book
– Nature:
• Expressive, protected
– Amount:
• More than needed to comment
– Effect:
• Replacing
– Repackaging, not Transformation
• Not Fair Use.

26. ROPES & GRAY
Brownmark Films LLC v.
Comedy Partners
• Brownmark Films LLC Video Clip
– http://www.youtube.com/watch?v=fbGkxcY7YFU
• Comedy Partners Video Clip
– http://www.southparkstudios.com/full-
episodes/s12e04-canada-on-strike
– Parody begins at 7:52

27. ROPES & GRAY
Brownmark Films LLC v.
Comedy Partners
• Fair Use?
– Purpose:
• A “classic parody”
– Nature:
• Expressive
– Amount:
• Minimum amount needed to
comment
– Effect:
• Limited or none.
– Highly Transformative
• Fair Use.

28. ROPES & GRAY
Kelly v. Arriba Soft Corporation
• Fair Use?
– Purpose:
• Commercial, but not highly
exploitative
– Nature:
• Creative, published, protected
– Amount:
• Necessary to copy entire image
– Effect:
• No harm
– Transformative –Different
function • Fair Use.

29. ROPES & GRAY
Kientz v. Sconnie Nation
• Fair Use?
– Purpose:
• Commercial, but
important in this case
– Nature:
• Creative, published
– Amount:
• Most of the expressive
elements removed
– Effect:
• Not a substitute
• Fair Use

30. ROPES & GRAY
Academic Use ≠ Fair Use
• Simply using materials in an academic
context does not, by itself, mean it is a fair
use.
– Which is why people write and publish textbooks
and royalties are paid on bookpacks.
• Princeton University Press v. Michigan Book
Services

31. ROPES & GRAY
Academic Use ≠ Fair Use
• Neither does use in a research context:
– It is not surprising that authors favor liberal
photocopying; generally such authors have a far
greater interest in the wide dissemination of their
work than in royalties -- all the more so when they
have assigned their royalties to the publisher. But
the authors have not risked their capital to
achieve dissemination. The publishers have.
Once an author has assigned her copyright, her
approval or disapproval of photocopying is of no
further relevance
• American Geophysical v. Texaco (J. Leval)

32. ROPES & GRAY
Princeton University Press v.
Michigan Document Services, Inc.
• Fair Use?
– Purpose:
• Commercial
– Nature:
• Creative, expressive
– Amount:
• Major ideas copied, not insubstantial, smallest excerpt > 8,000
words
– Effect:
• If widespread, would adversely affect the potential market.
– Not Transformative, used in same manner as original.
• Not Fair Use.

33. ROPES & GRAY
Blackwell Publishing, Inc. v.
Excel Research Group, LLC
• Fair Use?
– Purpose:
• Commercial
– Nature:
• Creative, expressive
– Amount:
• Major ideas copied, not insubstantial amount
– Effect:
• Able to undersell fee-paying competition
– Not Transformative, used in same manner as original.
• Not Fair Use.

34. ROPES & GRAY
Cambridge University Press. v.
GSU
• Fair Use?
– Purpose:
• Nonprofit educational
– Nature:
• Literature
– Amount:
• In the aggregate, a limited amount
– Effect:
• A lack of direct evidence of availability of licenses indicates that
licenses are unavailable
Fair Use

35. ROPES & GRAY
Authors Guild, Inc. v. HathiTrust
• Fair Use?
– Purpose:
• Full text search: quintessentially transformative Commercial
– Nature:
• Creative, expressive
– Amount:
• Entire work
– Effect:
• Full text search is does not replace the original work
• Fair Use

36. ROPES & GRAY
Diversey v. Schmidly
• Fair Use?
– Purpose:
• Non-commercial, educational
– Nature:
• Unpublished
– Amount:
• Entire work copied
– Effect:
• Completely deprived of value of the work
• Not Fair Use.

37. ROPES & GRAY
Agenda
• Brief Copyright Background Summary
• Copyright Exceptions in the Academic
Context
• Fair Use
• Creative Commons

38. ROPES & GRAY
Creative Commons – Background
• A public set of licenses proffered by a non-profit
organization to facilitate the sharing of
copyrighted works while maintaining protections
for their authors
• Provides a set of copyright licenses and tools
that can be adapted to individual works

39. ROPES & GRAY
Creative Commons
• Attribution: you must acknowledge
the author of this work if you use it,
and comply with any conditions
they require (such as, for example,
a link back to their website
• No derivative works: you can only
use this work as it is. You are not
allowed to adapt or modify it
• Share alike: if you create anything
that is based on this work, you
must share it with other people
under the same license as the
original work
• Non-commercial: you must not use
this work, or anything based on this
work, for commercial purposes

40. ROPES & GRAY
Questions?

41. ROPES & GRAY LLP
Copyright Exceptions &
Fair Use