'Can I post this on my LMS?' and Other FAQs about Copyright

1. ‘Can I post this on my LMS?’ and Other FAQs about Copyright Scholarly Communication Services Kristy Padron, MLIS SCS Coordinator and Associate University Librarian kpadron@fau.edu https://library.fau.edu/scholarly-communication October 2020

2. • Introduce the types of copyright questions that may be asked regarding online teaching. • Define copyright and fair use. • Outline a fair use analysis as a way to consider using the work of others. • Identify some better practices for using work online for teaching purposes. Today’s Objectives

3.  The FAU Libraries and its faculty, staff, and administration (including I, Kristy Padron) are not attorneys and cannot interpret the law.  This information is provided for educational purposes only and does not substitute for advice from legal counsel. Disclaimers Padron, K. (1994). Uncle Joe & Me at GRCC [Image].

4.  The pandemic has rapidly changed the way we teach with the transition to hybrid or online settings.  We are now challenged by increased needs for using copyrighted works in online settings: • We need materials to teach effectively and so students can learn. • We question of how to balance our instructional needs while respecting copyright.  These are copyright questions! Questions: Teaching Online

5. Questions: Teaching Online Can I upload a PDF to my BlackBoard page? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right? Can I post a video I found on YouTube or stream a video from my Amazon Prime account? ?! I heard that if I only use 10% of a book, it’s legal. Is that accurate?

6. Copyright: The Basics Copyright defined (US Copyright Office, 2020):  Exclusive rights that give creators of a work permissions to: • Distribute • Sell • Publicly perform or display • Make copies • Create derivatives • Authorize its rights to others (limited or exclusive)  Available for certain types of work: • Literary works: anything textual; computer programs • Musical works • Dramatic works • Pantomines and choreographic works • Pictorial, graphic, and cultural works • Motion picture and other audio-visual works • Sound recordings • Architectural works

7. Copyright: The Basics Copyright defined:  Automatically granted once an idea is in a fixed form (though registration is typically recommended for legal purposes).  Held by the copyright holder; authors can transfer their copyright.  Copyright Law of the United States provides legal definitions, parameters, and exceptions for copyright.

8. Copyright: Fair Use & Teaching  Fair Use: • An exception in copyright law that allows copyrighted materials to be reused or copied without the permission of a copyright owner. • Fair use applies for limited and transformative purposes such as commentary and critiques, news, or parody. • Fair use can be used in non-profit teaching / instruction settings. Educators rely heavily on fair use (17 USC § 107) in the U.S. copyright law to reuse copyrighted materials for teaching, research, scholarly or creative activities.

9. Copyright: Fair Use & Teaching  Fair Use: • Allows some copying, sharing, and clipping; • Allows repurposing some types of work depending on the details and purposes of its use; • All of which relies on a fair use analysis.  Each case of fair use is different (details: setting, amount of work used, type of document or material, etc.), so a fair use analysis is important for every time a work is reused.

10. Copyright: Fair Use & Teaching A fair use analysis will help you consider whether or not your intended use of a copyrighted book, article, video, or other work for instructional purposes (whether online or in-person) adheres to copyright!

11. Copyright: Fair Use & Teaching Here’s some assurances about fair use:  We respect intellectual property and attribution for work, yet society needs some limit to copyright.  Without these, free speech, cultural expression, learning, and building on existing knowledge is restrained.  Fair use is an educator’s friend and we can use it based on good faith (a.k.a. our best, informed judgment)! Don’t be afraid to lean on it (Smith, Macklin & Gilliland, 2012).

12. Copyright: Fair Use & Teaching  Purpose of use and a work’s character  Amount and substantiality of a work that will be used.  Nature or type of work  Effect of reuse on a work’s demand or marketability Fair use is determined by objectively weighing and balancing 4 factors: P Purpose A Amount N Nature E Effect Fair Use

13. A fair use analysis objectively reviews these 4 factors for a given situation. We will be introduced to the 4 factors, and identify them for a given scenario. Our fair use checklist is available @ https://bit.ly/scs- fair-use-checklist Copyright: Fair Use & Teaching

14. Copyright: Fair Use & Teaching  Purpose of Use and A Work's Character • What is the reason for reusing a work? Teaching, scholarship, or commentary/ critique? Will it be used online or face-to-face? • How long will the work be reused? Semester-long? Every semester? One-time? • Does reusing or copying a work add a new meaning, character, message to its function? Will a work made for entertainment purposes continue being used that way, or used differently? • Under what conditions will the work be made available? Only in Canvas? E-mailed? Posted on a web page? P Purpose A Amount N Nature E Effect Fair Use

15. Copyright: Fair Use & Teaching  Amount and Substantiality of a Work That Will Be Used • How much of an original work is being used in proportion to its entirety? A chapter? A few pages? The whole book or article? • Is the used portion the most significant part of a work? Is it the part that made people interested in the work? P Purpose A Amount N Nature E Effect Fair Use

16. Copyright: Fair Use & Teaching  Nature or Type of Work • Is the copyrighted work based on fact, or is it a creative work? Poetry or literature? Article with original research? Image? • Is the work published or unpublished? • Is the purpose of the copyrighted work to inform or entertain? P Purpose A Amount N Nature E Effect Fair Use

17. Copyright: Fair Use & Teaching  Effect of Reuse on a Work’s Demand or Marketability • Does copying or reusing the work make it less valuable or affect the demand for it? Will fewer people buy the work or want it because I reused or distributed it? P Purpose A Amount N Nature E Effect Fair Use

18. Copyright: Fair Use & Teaching Considering the 4 Factors  Fair use is not determined numerically. • “It satisfied 3 of the 4 factors, so it’s ok!”  It is a decision one makes by weighing and balancing the 4 factors. • One can choose to apply fair use broadly or narrowly depending on their risk tolerance and values.  Otherwise, the courts make the final call in what falls under fair use.

19. How do I apply fair use and copyright to teaching online? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right? ?! I heard that if I only use 10% of a book, it’s legal. Is that accurate? Can I post a video I found on YouTube or stream a video from my Amazon Prime account? Can I upload a PDF to my BlackBoard page?

20. How do I apply fair use and copyright to teaching online? Do a fair use analysis and check the balance of its PANE factors.  Purpose: + Will be on BlackBoard and removed at end of class + Used for commentary, critique, or discussion - Done so the students don’t have to buy the book - Will be used every semester  Amount: + Just enough to reach instruction goal - An entire work  Nature: + It’s fact-based work + It’s published - It’s a creative work - It’s unpublished  Effect: + My use won’t negatively affect the demand for the work - Fewer people will buy the work Can I upload a PDF to my BlackBoard page?

21. How do I apply fair use and copyright to teaching online? If you decide your use qualifies, congratulations! Recommendation: track your fair use analysis and keep a record of it (use our form for that!) If you decide fair use doesn’t apply in your case, consider these alternatives:  See if the PBSC Library has a licensed, electronic copy of a work. • You can provide its URL to the work for your students.  Identify an alternative work that is comparable to what you wanted to use that is an open education resource (OER) or other work with Creative Commons license (e.g., CC-BY).  Ask for permission from the copyright holder. Can I upload a PDF to my BlackBoard page?

22. How do I apply fair use and copyright to teaching online? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right?  Fair use favors reusing work for educational purposes, but that purpose by itself is not enough.  The legality and origin of a copyrighted work also comes into question. • Legally obtained work (e.g., the book belongs to you) is favored in a fair use analysis. • Those with undetermined origins are not favored (e.g., a possibly pirated scan found on Google).  Making copies for one-time use in face-to-face settings tends to be favored, while it can be complicated in online settings.  An analysis of the 4 PANE factors will help you decide if it is balanced.

23. How do I apply fair use and copyright to teaching online? For YouTube (or similar web-based service)  Again, the legality and origin of a work also comes into question for ethical reasons. • Check the source of the video or who posted it; it may or may not be a pirated work.  Sharing URLs is a better practice, while current law says embedding its player is also acceptable practice…  …but beware that these may be removed without warning or notice.  If the work has a Creative Commons license, see what it allows you to do with reusing the work. Can I post a video I found on YouTube or stream a video from my Amazon Prime account?

24. How do I apply fair use and copyright to teaching online? For Amazon Prime (or similar subscription- based, streaming service)  Read the contract for your streaming video provider; many have polices that define this or may not allow this. • Example: Netflix Educational Screening of Documentaries at https://help.netflix.com/en/node/57695 • Some may also provide lists of titles with educational permissions (see above link). Can I post a video I found on YouTube or stream a video from my Amazon Prime account?

25. How do I apply fair use and copyright to teaching online? For Amazon Prime (or similar subscription- based, streaming service)  If you determine a streaming video should not be shown, try PBSC Library (your online library) at https://palmbeachstate.libguides.com/az.php?t=1 7425 • You can either embed the video player or provide the video URL in BlackBoard.  If you decide to require the students to view the streaming video on their own account, keep these in mind: • Equity issues: not all students have accounts (or credit cards). • Other alternatives (Palm Beach County Library System) Can I post a video I found on YouTube or stream a video from my Amazon Prime account?

26. How do I apply fair use and copyright to teaching online?  The so-called 10% rule is outdated, though many communities of practice created percentages or portions as guidelines for best practices (but they aren’t law).  When you look at the amount of a work used for your analysis, consider the following: • Use the amount you determine is essential for fulfilling your teaching and learning objectives. • Using a small amount isn’t sufficient by itself; the significance of the amount may favor against fair use (e.g., the 1985 case of when Nation published a snippet of Gerald R. Ford’s memoirs). I heard that if I only use 10% of a book, it’s legal. Is that accurate?

27.  Use legally obtained, legal versions of work. • Know its provenance or origin.  Check for a work’s copyright or Creative Commons licenses. Better Practices for Reusing Work for Online Teaching X

28.  Use works that are licensed or acceptable for use in online settings. • Creative Commons licensed works, Public Domain works • Online library materials can generally be reused for instruction within an institution (its licenses allow student use*). o Embed links to library materials on BlackBoard rather than files like PDF. Better Practices for Reusing Work for Online Teaching

29.  Do your fair use analysis of 4 PANE factors for copyrighted works.  Model the practices you want your students to follow. Better Practices for Reusing Work for Online Teaching

30. Let’s Try a Fair Use Analysis! For an online class, Professor Skye wants to upload a PDF of a book chapter to BlackBoard as required reading for her students. She says the chapter gives an excellent introduction to a concept her students need to learn and will later write about for an assignment. If we do a fair use analysis, can she apply fair use? Our fair use checklist is available @ https://bit.ly/scs-fair-use-checklist

34. • What weighs for or against fair use? • Once we weigh the 4 factors, should Professor Skye post the PDF? • What are some possible alternatives? Let’s Try a Fair Use Analysis! For an online class, Professor Skye wants to upload a PDF of a book chapter to BlackBoard as required reading for her students. She says the chapter gives an excellent introduction to a concept her students need to learn and will later write about for an assignment. If we do a fair use analysis, can she apply fair use? Our fair use checklist is available @ https://bit.ly/scs-fair-use-checklist

35.  ‘Can I post this on my LMS’ slides: https://www.slideshare.net/kpadron_libraries  Fair Use Analysis handout: https://bit.ly/scs-fair-use-checklist Souvenirs (aka Handouts & Slides)

36.  Copyright for Teaching LibGuide http://bit.ly/scs-copyright-for-teaching o Creative Commons o Fair Use: Analysis Chart o Request Permission – How To  Creative Commons LibGuide https://bit.ly/scs-cc  Library Information: o PBSC Library (Your Online Library): https://www.palmbeachstate.edu/library/ o Services for PBSC at Boca Raton (Your In-Person Library): https://libguides.fau.edu/pbsc o Tom O’Brien, PBSC Liaison thomasobrien@fau.edu More Information

37. More Information Copyright Law: o Copyright Law of the United States (U.S. Copyright Office): https://www.copyright.gov/title17/ o U.S. Copyright Office: https://www.copyright.gov Provides circulars on applications of copyright law such as Fair Use, TEACH Act, international copyright, and more. Copyright for the Public: o Copyright & Fair Use: Overview (Stanford University Libraries): https://fairuse.stanford.edu/overview (Legally) Uses content by Richard Stim, NOLO legal publications, and other experts who write books for the public! o Copyright Information Center (Cornell University Library): https:/copyright.cornell.edu See its pages on copyright and public domain (aka the Hirtle Chart), fair use checklist, and copyright law.

38. Works Cited Smith, K., Macklin, L.A., Gilliland, A. (2012). Copyright for educators and librarians [Online course]. Coursera. https://www.coursera.org. U.S. Copyright Office (2020). Copyright law of the United States [Web page]. https://www.copyright.gov/title17/ Unless indicated, the source of images are from Unsplash.com or Pixabay.com and are reused with CC0 (public domain) license (https://creativecommons.org/share-your-work/public-domain/cc0/). Cited images reused via evaluating fair use (https://www.copyright.gov/fairuse/more-info.html).

39. ‘Can I post this on my LMS?’ and Other FAQs about Copyright Scholarly Communication Services Kristy Padron, MLIS SCS Coordinator and Associate University Librarian kpadron@fau.edu https://library.fau.edu/scholarly-communication October 2020