One area where copyright law is very specific is the case of sound recordings and states that the only copyright right related to sound recordings is the one stated in 106 (6) – the DMCA is silent on this issue. As UW communicators, we need to know the basics of copyright and fair use to ensure that our messages are not infringing. We also need to keep in mind that everything on UW websites is subject to Public Records requests. Student project web images example…
These are not completely clear either – there is much room for interpretation. The academic side of the house has a good working knowledge of how fair use is applied in the classroom and in research. There are a number of UW resources to help them. But in the growing world of multimedia and user generated content, communicators need to be aware of the issues and do some due-diligence, especially with electronic media.
Fair Use is described in the US copyright law, and has been the subject of quite a bit of interpretation and tested in case law extensively - the interpretations often fall into gray areas. There are four tests to apply to use of a copyrighted work that will give some indication whether the application you intend may be covered by fair use.
Borrowing an idea from the University of Texas system, here are some ways to interpret the four factors and apply them to specific cases. I have placed the balance scales in the general area where your use might qualify as fair use. It is important to weigh all four factors before deciding.
This factor is really qualitative, rather than quantitative. There was a case following the publication of the Pres. Ford biography related to the Frost-Nixon interview. The author excerpted the “I am not a crook” quote without permission, and it was substantial enough to create an infringement in the eyes of the court.
One of the most contentious areas - when it comes down to money, people are more willing to fight hard to protect their interests. Think in terms of the publication channels here - YouTube has a far greater reach then a webpage at the UW or a mailing sent to 500 people. What is the potential impact if the copyright owner finds your use? When in doubt, ask for a license to use the work!
We hear a lot about the DMCA these days, especially about the “safe harbor” provisions for ISPs. No test cases yet, and a lot of disagreement, but it is probably safest not to claim a fair use argument in connection with copyright protection systems. In a recent case involving music downloading by a Boston University student, a fair use defense was thrown out before the case really got started.
Here are three resources well known to our academic colleagues. They will provide all the detail you would want on areas of copyright related to written works.
For video and other multimedia assets, a national center at American University has recently published a set of best practices for fair use of online video after consulting copyright experts across the country. Definitely worth a read.
UW Fair Use Guidelines
Copyright and Fair Use at the UW Harry Hayward UW Media Relations and Communications 2009
Copyright is a set of rights held exclusively by the owner to: Reproduce the work in copies Make derivative works based on the original Distribute copies or transfer ownership Perform or display the work publicly Transmit the work by digital audio transmission
US Copyright law also provides for Fair Uses: criticism, comment, news reporting, Some teaching (including multiple copies for classroom use), Some scholarship, Some research
Where is Fair Use applied at the UW? classrooms research multimedia production
What is Fair Use? Four Factors The Nature of the copyrighted work The purpose and character of your use The amount and substantiality of the portion taken The effect of the use on the potential market for the work How do we know it is Fair Use?
No Clear answers….. The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Applying the four factors What is the nature of the work? Fact Based Mixture of Fact Imaginative And And And Published Imaginative Unpublished
What is the character of the use? Non Profit TRANSFORMATIVE Commercial Educational News reporting, Personal Criticism, Commentary, Parody,
How much of the work will you use? A small amount A substantial amount No easy answer to how much is too much!
What effect will the use have on the market for the original? (especially if it is widespread) Original is out of print, Competes with original or not available or takes away sales from original No ready market Avoids payment for permission for permission in established royalties market Owner unidentifiable Possible future market? And, what is the balance of the other three factors?
The Digital Millennium Copyright Act and Fair use- Section 1201 – circumvention of copyright protection systems Though there is significant debate on the issue, recent judicial decisions have held that the fair use defenses under sec.107 of the Copyright Act do not apply to the DMCA. A significant policy debate continues as to whether this is in the public interest, but under present law, it is not wise to assume that one can violate the DMCA for a fair use purpose . Consequently, at present, one cannot circumvent digital copy protections, as prohibited by the DMCA, in order to access a copyrighted work for a fair use purpose. -- UW Copyright connection
Images courtesy of: UW Photography UWTV Clker.com, public domain clip art Copyright and Fair Use statutes: Title 17 - The US Copyright Act http://www.copyright.gov/title17/ Digital Millennium Copyright Act: http://www.copyright.gov/legislation/dmca.pdf Discussion of Fair Use: http://www.copyright.gov/fls/fl102.html Rules of thumb checklist for fair use: http://www.utsystem.edu/OGC/Intellectual Property/copypol2.htm#test Harry Hayward, Com 558, August 11, 2009