Presented at the Joint Meeting of SEAALL/SWALL April 2016

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3. Laura McKinnon, MLIS,
JD
Laura.Mckinnon@unt.ed
u
Director of the Copyright
Advisory Office
University of North
Texas
Brett D. Currier, MSLS,
JD
brett.currier@uta.edu
Director of Scholarly
Communications
University of Texas at
Arlington
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INTRODUCTIONS

5. WHAT CAN BE COPYRIGHTED?
Literary works;
Musical works, including any accompanying words;
Dramatic works, including any accompanying music;
Pantomimes and choreographic works;
Pictorial, graphic, and sculptural works;
Motion pictures and other audiovisual works;
Sound recordings; and
Architectural works.
17 U.S.C. § 102

6. © OWNERS’ EXCLUSIVE RIGHTS
1. Reproduction;
 Copies
2. Derivatives;
 New works based on the original copyrighted work
3. Distribution;
 To the public by sale, rental, lease, or lending
4. Public performance;
 Literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audio visual
works
5. Public display;
 Literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works
6. Public performance of work via digital audio transmission
 This is a very limited right that applies only to sound recordings
 © owners of sound recordings only have the exclusive rights to #1, #2, #3, and #6
on this list!
17 U.S.C. § 106

7. EXCEPTIONS TO EXCLUSIVE RIGHTS
§107 Fair Use
§108 Reproduction by Libraries and Archives
§110(1) Face-to-Face Teaching
§110(2) TEACH Act
*this list is not exhaustive

8. FAIR USE
Fair use is detailed in §107 of the Copyright Act and allows things like:
 “criticism, comment, news reporting, teaching, scholarship, research”
17 U.S.C. §107
Exception to exclusive rights
It only applies to works that have © protection
 if the work is in the public domain, you do not need to rely on fair use
Fair use is a balancing test and courts look at four factors when
determining whether a use is fair

9. FAIR USE BALANCING TEST
Four factors:
1. Purpose of use
 Nonprofit? Educational? Commercial?
2. Nature of work used
 Published? Unpublished? Nonfiction? Creative?
3. Amount and substantiality of work used
 Just a small amount? Is it the heart of the work?
4. Effect on market of work
 Will it compete with sales of the original?
Strong emphasis on whether use is transformative
1. Is the purpose of your use different than the original purpose of the work?
2. If yes, is the amount used appropriate to your transformative use? (too much, not
enough?)

10. FAIR USE BALANCING TEST
Only a court can definitively determine whether a use is fair – it is a balancing test,
so you cannot just check off each factor, you must weigh them all and
determine whether your use overall leans in favor or against fair use
 There are several checklists that can help you make a determination
Case by case analysis – you must look at each use individually to determine
whether it is fair
Fair use is flexible and vague -- continually evolves as the 4 factors are applied to
new cases
If fair use applies you do NOT need permission
If fair use does not apply, you can always seek permission

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12. CAMBRIDGE
Date Occurrence
July 15, 2008 Lawsuit commences
February 17, 2009 Georgia State University
Copyright updated and
implemented
August 12, 2010 Book publishers: Injunctive
relief
Only claims of infringement that
occur on or after the 2009
policy
June 1, 2011 Updated list: 74 claims of
infringement
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13. FAIR USE FACTORS
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Factor Ruling
Factor 1: Always favored GSU
Factor 2: Always favored GSU
Factor 3: 10% rule
Factor 4: Market Harm

14. CAMBRIDGE: DISTRICT COURT
Of the 74 claims of infringement:
• 24 cases of de minimis copyright
• Copy made but never accessed
• Most other cases: Fair use or lack of ownership
• 5 cases of copyright infringement
• Awarding of attorney’s fees to Georgia State
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15. CAMBRIDGE: CIRCUIT COURT
• Reversed Factor 2: Did not always favor
• Reversed 10% rule
• Reversed Attorney Fee Ruling
• Remanded
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16. CAMBRIDGE: DISTRICT COURT (2): 3/31/16
Factor Ruling
Factor 1: Always favors universities
Factor 2: Always neutral or weighs against a finding of fair use
Factor 3: Integrated with market harm
Factor 4: Compared licensing fees from the book against the total
book purchases
If no electronic copy available, presumption Factor 4 favors
the university
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17. CAMBRIDGE: DISTRICT COURT (2)
• Previously had found 5 instances of infringement
• Now 4 instances of infringement
• Georgia State still awarded attorney’s fees
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18. IMPLICATIONS FOR PRACTICE
Cambridge (2) Well written opinion for Fair Use
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19. FAIR USE & COURSE RESERVES
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Factor Ruling
Factor 1: Always favors universities
Factor 2: Neutral or weighs against a finding of fair use
Factor 3: Integrated with market harm
Factor 4: If available through an e-resource
If a book
If no permissions are available

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21. HATHITRUST
• Full text searchable books
• Transformative use
• Access to the print disabled
• Important to note language of “print disabled” vs. “blind”
• Preservation
• Remanded on issue of standing
• Settled in January 2015
• Libraries claimed 108(c) protection
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23. GOOGLE BOOKS
• Full text searchable
• Snippet view
• Supreme Court Cert?
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25. GARCIA
• Injunctive relief
• Desert Warrior v. Innocence of Muslims
• Appears that there is not a copyright interest in an
individual performance
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