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Coaching Copyright: Providing Copyright Assistance on Campus

Where can librarians start when asked a copyright question? This presentation summarizes a framework for copyright analysis, conceptualized by Kevin Smith, Anne Gilliland, and Lisa Mackley. Although librarians usually are not attorneys, this is a tool to help library staff and educators guide patrons on copyright, fair use, and other related topics.

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Coaching Copyright: Providing Copyright Assistance on Campus

  1. 1. Coaching Copyright: Providing Copyright Assistance on Campus Scholarly Communication Services (SCS) By Kristy Padron, MLIS SCS Coordinator and Associate University Librarian kpadron@fau.edu https://library.fau.edu/scholarly-communication July 2020
  2. 2. • Introduce the types of copyright questions that may be asked of library employees. • Define the concept and purposes of coaching copyright. • Outline the framework of analyzing copyright questions. Workshop Objectives
  3. 3.  The FAU Libraries and its faculty (including Kristy Padron), staff, and administration 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. and  The information in this presentation has been distilled and adapted from librarians who are also attorneys. Disclaimers Source: K. Padron (2015).
  4. 4. Based on the work of Kevin Smith, Lisa Macklin, and Anne Gilliland (2012), and additional works by Smith (2020). Acknowledgement Source: Smith, Macklin, & Gilliland (2012).
  5. 5. Copyright Questions Can I link to an article I found on ResearchGate? Can I upload a PDF to my Canvas page? I can legally scan a chapter of a book and give to my students because it’s for teaching purposes, right? I found this PDF of a book on the internet and it’s perfect for my course. Can I use it as an OER? ?! Can an author have copyright AND a CC license? I heard that if I only use 10% of a book, it’s legal. Is that accurate?
  6. 6. For Library Employees: • Copyright is always evolving. • Applying copyright will vary with each situation with its own set of facts. • Always work with what we currently know about the matter at hand. • Subject specialists and other employees can address these in a similar way as they do for their usual areas of expertise. • The information we provide patrons will help them make a decision. Why Coach Copyright?
  7. 7. For Patrons: • We can give our patrons tools that will help them make a copyright decision. • Since copyright is not a yes/no choice, coaching helps patrons with assessing risk and strategic thinking. • Patrons can consider the consequences of action vs. inaction, and its risks or consequences. • They can be educated on copyright and related intellectual property (IP) issues. Why Coach Copyright?
  8. 8. 1. The Disclaimer Use this boilerplate language (or something like it): The FAU Libraries and its faculty, staff, and administration 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. For legal advice, please contact an attorney who specializes in copyright or intellectual property law. It is important to proactively tell patrons what you can and cannot do; this is acting in good faith and the patron makes the final decision. A Few Considerations for Coaching Copyright
  9. 9. 2. “It depends.”  What we advise depends on the facts about a question.  The facts should (objectively) determine your application of copyright principles and what you advise. 3. Values & Risk Tolerance  Help the patron clarify what they value (e.g., modeling behavior for peers or students; treatment of others’ work).  Your interaction ideally can help the patron identify their risk tolerance or comfort levels.  The patron ultimately makes the final decision. A Few Considerations for Coaching Copyright
  10. 10. 4. What do I know (or don’t)?  Consult with available sources on copyright and related topics: • LibGuides: Copyright, Creative Commons, etc. • Books and eBooks • Reputable web sites and experts.  Pursue professional development or continuing education based on your necessities, interests, and links with your areas of responsibility. • Online courses (live or asynchronous) • Conferences (the online ones have been either free or very low cost) • Webinars (especially good for updates and case law) A Few Considerations for Coaching Copyright
  11. 11. First, it’s important to identify the work under consideration and attributes of its use. Apply some principles of the reference interview to get this information! • Name/ Citation of Copyrighted Work • Type of Work (Book, chapter, journal article, sound, image, video, etc.) • Format (Print; Digital file - .pdf, .mp3, etc.; Streaming video; DVD; etc.) • Copyright Holder/ Owner. • Describe course/ project and when the work will be used. • Describe why and how much of the work will be used. A Framework for Analyzing Any Copyright Question
  12. 12. Based on the work of Smith, Macklin, & Gilliland (2012) and Smith (2020). 1. Is the work in question protected by copyright? 2. Is there a specific exception in copyright law that applies or covers my use? 3. Is there a license that covers my use? 4. Is my use covered by fair use? 5. Do I need permission from the copyright owner for my use? A Framework for Analyzing Any Copyright Question
  13. 13. 1.Is the work in question protected by copyright? A Framework for Analyzing any Copyright Question a. Is the work I want to use protected by copyright, or is it in the public domain? • Determine the date of publication or creation. • Look at the work’s verso (author, publisher, ISSN, etc.). • Consult with finding aids to locate a copyright (U.S. Copyright Office Catalog or Copyright Alliance). • For old works, consult with the public domain checklists or Hirtle Chart (Cornell University Library, Copyright Term and the Public Domain in the U.S., https://copyright.cornell.edu/publicdomain). b. If I wrote it, do I still own copyright, or did I sign over rights for my intended use to the publisher? • Refer to any contracts an author may had signed with their publisher such as copyright transfer agreements (CTAs).
  14. 14. Source: Suber, P. (2012). Open access [eBook]. Cambridge, MA: The MIT Press. https://archive.org/details/9780262517638OpenAccess/ Permission by CC-BY. Verso Example
  15. 15. 2. Is there a specific exception in copyright law that applies or covers my use? A Framework for Analyzing any Copyright Question a. Is my intended use covered by a specific exception to the exclusive rights in the copyright law, such as the one for libraries or for classroom performances and displays? • Educational settings rely heavily on fair use and other exceptions in copyright law (see next page for a list). • For educational purposes, many of these exceptions only apply to non-profit educational settings (public institutions).
  16. 16. Provisions from the U.S. Copyright Act (Crews, 2020) Section 101 Definitions Sections 102 – 105 Subject matter(s) of copyright Section 106 Exclusive rights in copyrighted works Section 107** Limitations on exclusive rights: Fair use Section 108 Limitations on exclusive rights: Reproduction by libraries and archives 108(d & e): Interlibrary Loan Section 109 Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord Section 110 In-Class Performance Limitations on exclusive rights: Exemption of certain performances and displays 110(1) *: Class use. 110(2): TEACH Act; 110(2)d: TEACH Act provisions Section 121* Limitations on exclusive rights: reproduction for blind or other people with disabilities Section 121A Limitations on exclusive rights: Reproduction or other people with disabilities in Marrakesh Treaty countries * For advising patrons, these limitations will be most frequently used, while Section 108 addresses archives, collections, and Interlibrary Loan. ** Fair Use will be covered in a later step.
  17. 17. 3. Is there a license that covers my use? A Framework for Analyzing any Copyright Question a. Is there a Creative Commons license attached to the work? If so, can I comply with the terms of the license, or can I find another useful work that is CC- licensed? • Refer to the types of CC license attached to the work and what type of use it permits. See these at https://creativecommons.org/licenses/. • Creators can hold a copyright while attaching a CC license to their work. • If a CC license is not attached, suggest finding a work (especially if the next 2 steps cannot be addressed satisfactorily). b. If affiliated with an educational institution, is there a license that governs how the copyrighted material I’m accessing through my library can be used? If so, can I comply with the license terms? • Check on the licensing conditions of works such as databases, journals, or items in the library collection.
  18. 18. Example: Terms and Conditions of Use, ABI/INFORM, ProQuest Source: ProQuest (2020). Terms and conditions [Web page]. https://about.proquest.com/about/terms-and- conditions.html. Permission by fair use.
  19. 19. 4. Is my use covered by fair use ? A Framework for Analyzing any Copyright Question a. Four factors to consider for fair use (PANE): i. Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; ii. Amount and substantiality of the portion used in relation to the copyrighted work as a whole; iii. Nature of the copyrighted work: text, sound, image, creative work, etc.; and, iv. Effect of the use upon the potential market for or value of the copyrighted work.
  20. 20. 4. Is my use covered by fair use ? A Framework for Analyzing any Copyright Question b. Questions for transformative fair use under purpose and character of use are: i. Does the copyrighted material help me make my new point? ii. Will it help my readers or viewers get my point? iii. Have I used no more than is needed to make my point? (Is it “just right”?) • Transformative factors are a key determinant in fair use court cases, and the other factors are also evaluated. • Fair use factors are flexible and interrelated; their evaluation is a balance act and only truly interpreted in a court of law. • Checklists can be utilized for an initial determination to see if fair use can apply to a work (e.g., Cornell University Library, Fair Use Checklist, https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf).
  21. 21. FACTOR WEIGHTING TOWARDS FAIR USE WEIGHING AGAINST FAIR USE Purpose of Use and Work's Character • Is the use transformative? Why is the work being copied, and for what reason? Does its copying or use add a new meaning, character, message, or function of the work? Nonprofit, academic, educational use; Criticism or commentary; Transformative use; Creating a new meaning or use. Commercial, for-profit use; Decorative use. Amount and Proportion of Work Used • How much of an original work is being used in proportion to the original work, and is it a significant amount? Small proportions of a work; Less significant amounts or content. Using a whole work, especially when not needed for a given purpose; Using a proportionally large amount; Using the most significant content within a work Nature or Type of Work • Is the copyrighted work based on fact, or is it a creative work? Is the work published or unpublished? Is the purpose of the copyrighted work to inform or entertain? Fact-based works (non-fiction); Published works. Creative works (literature, poetry, or images). Effect on Potential Market Value or Demand • Does copying or reusing the work make it less valuable or affect the demand for it? Use has no effect on market; Does not affect demand or use of a work. Diminishes the demand or price of a work; The work can be readily obtained for a given purpose at a reasonable cost. Example: Checklist/ Chart to Evaluate Fair Use Source: Padron, K. (2020). Fair use [LibGuide]. https://libguides.fau.edu/scs-copyright/fair-use
  22. 22. 5. Do I need permission from the copyright owner for my use? A Framework for Analyzing any Copyright Question a. If so, first locate the copyright owner and fully explain your intended use in your permission request. • See #1 to locate a copyright and its holder. • Inform the patron that they need to be specific; an approval for one work and its use (e.g., perform a song for a school performance) may not be transferrable to another (perform the same song in a concert in AAA). • Request Permission – How To in the Copyright LibGuide (https://libguides.fau.edu/scs-copyright/request-permission) has sample letters and includes charts that patrons can download to track their requests. b. If no response or answer is no, reconsider your use of this work to see if you can make a fair use, or consider using another work. • Copyright holders are not obligated by law to respond to requests.
  23. 23. LibGuides (FAU Libraries): Copyright: https://libguides.fau.edu/scs-copyright Includes additional guides in related areas, along with library presentations and handouts (when available): • Creative Commons • Fair Use • Request Permission – How To • Author Rights • Presentations Images: Copyright and Images: https://libguides.fau.edu/images-boca/copyright Scholarly Communication Services Toolkit: https://libguides.fau.edu/scholarly-communication- toolkit For library employees with library-centered explanations of copyright and related topics. These pages include recommended sources and continuing ed/ professional development opportunities. Books: FAU Library Catalog: https://library.fau.edu Recommended: books by Kevin L. Smith, Kenneth D. Crews, Stephen Fishman, and NOLO law amongst others. Copyright Resources Copyright Law: Copyright Law of the United States (U.S. Copyright Office): https://www.copyright.gov/title17/ 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 Law with Tons of Detail: GovInfo.Gov (USGPO): https://www.govinfo.gov (search for USC Title 17 – Copyright Law for most recent version) • Copyright Law with historical overview, background, and lots of details that help with interpretation: https://www.govinfo.gov/content/pkg/USCODE-2018- title17/pdf/USCODE-2018-title17.pdf Copyright for the Public: 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! 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.
  24. 24. Ellis, E.L., & Smith, K.L. (Eds.). (2020). Coaching copyright. Chicago: ALA Editions. Smith, K. (2020, June). Coaching copyright [Presentation]. Kraemer Copyright Conference 2020 (virtual), University of Colorado at Colorado Springs. Smith, K., Macklin, L.A., Gilliland, A. (2012). Copyright for educators and librarians [Online course]. Coursera. https://www.coursera.org. Permission for reuse by CC-BY-SA license. Unless noted, all images used are from Pixabay.com or Unsplash.com with CC0 (public domain) permissions. Works Cited
  25. 25. Coaching Copyright: Providing Copyright Assistance on Campus Scholarly Communication Services (SCS) By Kristy Padron, MLIS SCS Coordinator and Associate University Librarian kpadron@fau.edu https://library.fau.edu/scholarly-communication July 2020

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