JT In this workshop, we want to give you a brief overview of copyright law as it applies to classroom use. We will spend some time on the concept of fair use and will let you know about recent decisions in the U.S. federal courts that seem to have favorable implications for academic uses of copyrighted works.
Jt Any time a person creates an original work—of art, of music, of writing in its many forms—it becomes copyrighted automatically. Individuals no longer need to register with the U.S. Copyright office to claim copyright to their work. (it helps, however, if you plan to sue anyone else for infringement.) Very often, in the case of academic publishing, authors give up, or assign, the copyright to the publisher—a matter for a workshop next semester on open access. The law says that you as an author, or song writer, or artist, are protected from someone else producing something just like what you did and claiming credit for it. The law is saying if anyone should make a profit from the original work, it should be the work’s producer. Copyright, although originally intended to be for a “limited time” has been extended several times by Congress, so that now, as a general rule, for works created after 1978 the duration of copyright is the life of the author plus 70 years. It’s longer for “works for hire” and for sound recordings. When a work is no longer protected by the copyright law, it is considered to be in the “public domain” and may be used without seeking permission from the copyright holder. In the United States, works published before 1923 generally fall into the public domain.
hsmVirtual instruction is when a course is taught either solely online or when components of face-to-face instruction are taught online such as with Blackboard and other course management systems. Virtual instruction includes digitally transmitting class materials to students. This transmission is authorized under the TEACH (Technology Education and Copyright Harmonization) Act which is a part of the copyright law. The basic premise behind TEACH is to allow comparable instruction in the online environment as to what takes place in a traditional classroom or face-to-face instruction. One of the major requirements of the law is that materials can only be digitally transmitted to students officially registered in the course. There are other requirements for teaching, technology, and course materials that instructors must meet as well before using the TEACH exception.
Jt The four factors to consider in determining if a use can be considered “fair use” were augmented in 1994 in the ruling on the Campbell v. Acuff-Rose case, with the introduction of the concept of transformative use. “Transformative use has to do with the …purpose in utilizing the work, whether or not the original is altered or not…” Parody is a good example of a transformative use, as are remixes of sound recordings.
Jt 1. Purpose—is the proposed use for commercial or nonprofit educational use?Nature—Is the work more factual in nature (scholarly, technical, scientific, etc.) or more a work of creative expression, such as poems, plays, and paintings?Amount and/or substantiality of the the portion used—How much of the work is being copied? Is the portion copied the “heart of the matter?” This can be infringing.Effect on the market place—does your copying affect the publisher’s bottom line in some way? What if everybody did what you are doing?
JT Now we’re going to go over the four factors again, and as we do, think about how each applies to each of the examples we’ve presented.In general, this first factor is always going to be interpreted in favor of educational use since it is one of the explicit examples of permitted use. Also, the character of the use is basically about what we do. Where an individual may run into trouble is in failing to appropriately cite another work.
JT In general, you want to use as little as possible to support your pedagogical aim. And, you don’t want to use what the courts have called “the heart of the matter.” We all have quickly scanned the introduction and the final chapter of a nonfiction work to get a sense of the author’s argument. If those are the portions that we put on reserve, we many be infringing. Again, it depends on the type of material and the relationship of the copied portion to the whole.Although we have been saying that we can’t tell you how much you can “get away with,” the judge in the Georgia State case gave some concrete guidelines that may or may not hold up.
HSM -- what do you think?????????/
JT For most of my career it seemed that the courts were more inclined to rule in favor of the complainant rather than the defendant when it came to copyright law. Over the course of the past year, we have seen several major rulings in favor of the academic institution that was the defendant. The UCLA case was about the use of streaming video—did UCLA have the right to copy a DVD and stream it to students? The judge ruled in UCLA’s favor, but the case may not have a great deal of wider applicability, since it depended to large extent on the particular contract that UCLA had with the video supplier.Georgia State—this is the big one, and we’ll spend a little longer on it.HathiTrust—The Author’s Guild had sued this collection of CIC institutions for scanning and making available for certain uses, essentially their entire collections. We are talking about Michigan and UIUC, among others, who had been part of the Google Books project. Approved uses now include preservation and full-text searching and indexing, as well as searching by visually impaired patrons.Wiley v. Kirtsaeng—Arguments were just heard before the Supreme Court in this case in which a publisher is suing a graduate student from Thailand for buying copies of their books overseas and then reselling them in the United States. At question is the “first sale doctrine,” focusing on whether it applies to works produced overseas.
If you have a question about what you can or cannot put on reserve or use in your Blackboard, please get in touch with Stephen.
Copyright in the classroom
Copyright and Fair Use for the Classroom Jane Treadwell, University Librarian and Dean of Library Instructional Services H. Stephen McMinn, Director of Collections and Scholarly Communications
Overview/Outline Introduction – What is Copyright? Fair Use Recent Decisions Georgia State University Decision --Implications
Copyright -- U.S. Constitution“Empowers the United States Congress topromote the Progress of Science and usefulArts, by securing for limited Times to Authorsand Inventors the exclusive Right to theirrespective Writings and Discoveries” Copyright Clause of the U. S. Constitution (Article I, Section 8, Clause 8)
Exceptions to Copyright Law Numerous - depending on type of material, users, and author/producers 3 Major for Educational Purposes 1. Face-to-face Instruction 2. Virtual Instruction 3. Fair Use
Face-to-face Instruction*Traditional classroom -- In this setting allperformances and displays of a work (Text,Music, Images, and Video) are allowed.Requirements: 1. All materials must be legally acquired. 2. Teaching activities must take place in a classroom or a similar place devoted to instruction. (*Section 110 of the U.S. Copyright Code)
Virtual Instruction*Online, Hybrid, or supplemental use of coursemanagement systems. Virtual instructionincludes digitally transmitting class materialsto students. The basic premise is to allowcomparable instruction in the onlineenvironment as to what takes place in atraditional classroom. (*Section 110(2) -- TEACH Act)
TEACH Act Requirements- 3 Types Instructors – Regular part of the curriculum, chosen by the instructor, must be an integral part of the class session, directly related to the teaching content, and comparable to traditional class. Technology – Only enrolled students, only for the duration of the class, and students can’t copy/share.
TEACH Act Requirements- 3 Types Course Materials – Listing of acceptable materials – most materials – Non acceptable materials – textbooks, course packs, illegal copies – Must contain notice of copyright – May convert analog version to digital (only amount needed)
Fair UseFair use allows for exceptions to the copyrightlaw for use not specifically exempted as longas that use can be considered fair.A key consideration is the extent to which theuse is interpreted as transformative, asopposed to merely derivative.
Fair UseThe copyright law also states the variouspurposes for which the reproduction of aparticular work may be considered fair, someof these include criticism, comment, newsreporting, teaching, scholarship, andresearch.
Fair UseThe “fairness” is based on four factors each ofwhich is weighed equally. 1. Nature and Purpose of the Use 2. Nature of the Copyrighted Work 3. Amount or Substantiality of Portion Used 4. Effect on the Market Place
2 Examples – Example 1A professor wishes to place on reserve 3chapters (an introductory chapter andchapters 14 & 15 of the 15 chapter work).The work is a non fiction treatise on thehousing crisis by a noted economist, thatanalyzes several factors with emphasis on thechanging regulation in the banking industryas the root cause.
2 Examples – Example 2To supplement information not discussed in-depth in the course textbook, anenvironmental science professor wants toplace on reserve chapter 6 of a 12 chapterbook on hydrocarbons that discusses thehealth, safety, and environmental impact of achemical normally used in the clean up of oilspills.
1st FactorPurpose and Character of the Use Purpose – Nonprofit, Educational, Personal, Commercial, For Profit Character – Teaching, Research, Scholarship, Criticism, Commentary, News Reporting, EntertainmentFair Use – Educational Nonprofit using worksfor teaching, research, and scholarship
1st Factor - Purpose and Character of the Use Example 1 – Nonprofit Educational Institution using the work for Teaching/Scholarship – Favors Fair Use Example 2 -- Nonprofit Educational Institution using the work for Teaching/Scholarship – Favors Fair Use
2nd FactorNature of the Copyrighted Work Factual vs. Creative scholarly, scientific, technical vs. artistic, fiction, poetry Some items not covered, i.e. consumables – workbooks, standardized tests, etc.Fair Use -- favors use of factual works
2nd Factor - Nature of theCopyrighted Work Example 1 – This is a nonfiction popular work that tends towards creative/opinion with a broader marketplace than academia – Tossup Example 2 – The work is a factual, scientific/technical work – Favors Fair Use
3rd FactorAmount or Substantiality of Portion Used2 Criteria How much is used? Core or “Heart of the Work”? Depends on type of material No magic number or percentage*
3rd Factor - Amount orSubstantiality of Portion Used Example 1 – 3 chapters of 15 chapter work is 20% and ending chapters with conclusion could be considered “Heart of the work” – Favors needing permission Example 2 – 1 chapter of 12 chapter work with chapter not core to the overall work. – Favors Fair Use
4th FactorImpact on the Market Place Effect of the use upon the potential market for, or value of, the copyrighted work Use vs. Purchase? Criteria - Permissions readily available or not, at reasonable cost, own a copy of the work, access restrictions in place…
4th Factor - Impact on the MarketPlace Example 1 – Library owns copy but e-book available and permission can be obtained from Copyright Clearance Center (CCC). – Favors needing permission Example 2 – Library owns copy of book, e-book not available and not with CCC. – Favors Fair Use
4 Factors AnalysisExample 1 Example 21. Fair Use 1. Fair Use2. Tossup 2. Fair Use3. Permission 3. Fair Use4. Permission 4. Fair UseNeed to obtain Can use withoutpermission! permission under Fair Use
Fair Use Balance between Public and Copyright holder All factors should be weighted the same Not dependent on technology or format Fair use allows for use without permission Not all educational use is Fair Use!
Copyright -- Confusion Copyright vs. Public Domain – Usually by Date – http://copyright.cornell.edu/resources/publicdomain.cfm Copyright vs. Open Access Copyright and Creative Commons Both Copyright – Permissions issue
Recent Copyright Decisions UCLA http://chronicle.com/blogs/wiredcampus/judge-dismisses-lawsuit-against-ucla-over-use-of- streaming-video/33513 Georgia State University http://chronicle.com/article/Long-Awaited-Ruling-in/131859/ HathiTrust http://chronicle.com/article/Judges-Decision-Could-Clear/135224 Wiley vs. Kirtsaeng (pending) http://chronicle.com/article/Supreme-Court-Appears-Divided/135478
Georgia State Univ. DecisionIn Brief –Three scholarly publishers supported by theAssociation of American Publishers and theCopyright Clearance Center sued GSU in 2008over electronic reserves policy/practices thatthey felt were in violation of Fair Use or wereotherwise infringing on copyright.
GSU Decision Case decided in 2012 5 Total Violations out of 99 or 75 – Started with 99 works but couldn’t prove they held copyright for 24 of the works – Analyzed 75 total works for the 4 factors 5 Violations – 4 exceeded amount and permissions were available and 1 “heart of the work.”
GSU Implications Really Unknown Still! – Appeal – Georgia only – Reserves and Non-fiction works *Provided Guidelines on amount – 10% of works under 10 chapters or 1 chapter for items with 10 or more chapters
GSU Implications Eliminated old one semester rule! Leaned heavily on availability of easily and reasonably obtaining permission Economic Good News – “Prevailing Party” Ruling – Monetary damages would have been negligible or unavailable due to state sovereign immunity.
Takeaways Library is here to help – Both E-Reserves and Copyright Questions Library can’t always perform miracles – Permissions take time and/or cost money – Permission costs passed back to Departments Things are getting better
Overall Picture– Things areGetting Better More Guidelines More Licensed Resources Paid Permissions more streamlined Greater Awareness of Copyright &Fair Use Limited Liability UIS Policies/Activities/Services
Questions? Thank You for Attending! Stephen McMinnstephen.firstname.lastname@example.org Jane Treadwell