This session covers copyright and licensing issues as they arise in course design and digital learning environments.

1. COPYRIGHT IN...
COURSE DESIGN &
DIGITAL LEARNING ENVIRONMENTS
Rachael G. Samberg
Scholarly Communication Officer
UC Berkeley Library
July 17, 2019

2. You’re
designing a
summer course
on Egyptian art
Photograph of a pyramid against the sky
with ruins surrounding
http://giza.fas.harvard.edu/3dmodels/71018/full/

3. You’ve
found & created
compelling content
Egypt, Lee Friedlander (1983)
Discovery UK, Video “Exploring King
Tutankhamun's Tomb”
Menkaure (Mycerinus) and Khamerernebty(?)
2490-2472 B.C.E.
(Museum of Fine Arts, Boston)
Sousa, R. (2007). “The
Meaning of the Heart Amulets
in Egyptian Art,” Journal of the
American Research Center in
Egypt
“Our study began with a research that
aimed to identify a typology of heart
amulets. [T]his article now focuses on the
study of the representation of heart
amulets in Egyptian art… which eventually
will shed light on its religious meaning.”

4. We have to think about the
rights of the authors or entities
who created or made that
content available

5. https://skfb.ly/6HFrw

6. https://skfb.ly/6IDnP

7. 2. FAIR USE PERMITTED.
Some materials are made available
for limited non-commercial,
educational, and personal use only,
or for fair use as defined in the
United States copyright laws. Users
may download these files for
personal use...
7

8. It turns out that we need to sort
out not only copyright & fair use,
but other law & policy issues!

9. There’s a difference
between
citing sources and
having permission
to include content
Dan4thNicholas,CC-BY,
h2ps://flic.kr/p/8PEZiG
Sakaki0214,CC-BY-NC-ND,
h2ps://flic.kr/p/9jykF1
ATTRIBUTION
PERMISSION
STARTING POINT

10. COPYRIGHT
Exclusive rights to make
certain uses
of original expression
for limited period
of time
Photo by Luis Alfonso Orellana on Unsplash
Egypt, Lee Friedlander (1983)

11. Exclusive Rights
● Reproduction
● Derivative works
● Distribution
● Public performance
● Public display
Egypt, Lee Friedlander (1983)

12. You’re not invoking any of the
exclusive rights by providing
links to lawfully-uploaded
content. That’s why it’s always
okay to link to lawful.
Three horizontal rusted chains
crossed by two poles
https://unsplash.com/photos/TcFq4-ulczU
BY THE WAY...

13. Limited Period
● Varies, but at least
author’s life + 70 years
● Within the “protected”
period, you need
author’s permission to
reproduce, display,
perform, etc.
Egypt, Lee Friedlander (1983)

14. What does
copyright protect?
Expression,
not ideas or facts
World Bank & OECD Data
https://data.worldbank.org/indicator/ny.gdp.mktp.kd.zg?locations=eg

15. What does
copyright protect?
Expression,
not ideas or facts
Keatings, K & Tassie, Geoffrey & Flower, R.J. & Hassan, F.A. & Hamdan, Mohamed &
Hughes, M & Arrowsmith, C. (2007). An examination of groundwater within the Hawara
Pyramid, Egypt. Geoarchaeology. 22. 533 - 554. 10.1002/gea.20171.

16. Other limits: The Public Domain
FEDERAL GOVERNMENT WORKS EXPIRED COPYRIGHT
https://collections.mfa.org/download/145766
;jsessionid=A68AB39B7F81E3B37CF5F0EA4
1269429
https://www.loc.gov/item/webcast-6177

17. If copyright gives authors exclusive
rights for so long, how can we ever
use anything?

18. Rely on an
exception
like fair use
https://skfb.ly/6HFrw

19. “The fair use of a copyrighted
work…for purposes such as
criticism, comment, news
reporting, teaching…,
scholarship, or research, is
not an infringement of
copyright.”
https://skfb.ly/6HFrw

20. FOUR-FACTOR BALANCING TEST
1. Purpose & character of use
Nonprofit educational more likely fair than
commercial; “transformativeness” often
dominates.
2. Nature of copyrighted work
More likely fair if you’re using factual or
scholarly work.
3. Amount and substantiality
Size & importance of portion used in
relation to whole.
4. Effect on potential market
Less likely fair if use supplants market for
purchasing/licensing original.
https://skfb.ly/6HFrw

21. Rely on an
exception
like the
TEACH ACT
Game of Thrones: Season 6 Episode 10 Clip:
Winter is Here (HBO)
https://youtu.be/p3vPu95EqNA

22. Or, get a
license
(permission)

23. GAUGING COPYRIGHT RISK:
Sovereign immunity
Photo by Cytonn Photography on Unsplash
https://commons.wikimedia.org/wiki/File:UCBerk
eleyCampus.jpg
● State govt’s, officers
● Does not extend to individuals acting
in personal capacity (e.g. professors,
and potentially us working for
professors)
● Injunction (i.e. “Stop!”), not damages
● On appeal to Supreme Court
● Applies only to copyright; other
violations still actionable for damages

24. CONTRACTS
Already digitized in a
library database?
Using digital collections
on the Web?
There may be a contract
at play...
Photo by Cytonn Photography on Unsplash

25. Website terms of use, database
licenses agreements,
donor agreements...

28. The contract might be one
that the library signed.
Permitted Uses
1. Research and Analysis.
...Authorized Users are permitted
to display and use reasonable
portions of information...for
educational or research purposes...
2. Fair Use/Fair Dealing. Customer
and its Authorized Users may use
the materials contained within the
Service consistent with the
doctrines of "fair use"...

29. 29
Best practices for
bCourses

30. ● Either link, or use public domain or
licensed (e.g. Creative Commons or
Library-licensed) material if you can
● If relying on fair use:
○ Transform it
■ Incorporate into pedagogical
statement or discussion.
■ E.g. Discuss powerful
scientific communication
○ Use only what you need to achieve
● Optional materials should be links or
bibliographic references Carroll (2006). Endless Forms Most Beautiful:
The New Science of Evo Devo

31. 31
Best practices for
open or for-profit
courses

32. ASSIGNED READINGS
● Use public domain or creative
commons-licensed material
● Fair use should be only if necessary
and more narrowly construed
● Otherwise, get permission/license
**LIBRARY LICENSES TYPICALLY
DO NOT COVER OPEN ONLINE
COURSES OR NON-BERKELEY
STUDENTS**
Carroll (2006). Endless Forms Most Beautiful:
The New Science of Evo Devo

33. SLIDES, NOTES
● Use public domain or creative
commons-licensed material
● If relying on fair use:
○ Short quotes
○ Incorporate into pedagogical
statement being made
○ E.g. Discussion of powerful
scientific storytelling
● Otherwise, get permission/license
Carroll (2006). Endless Forms Most Beautiful:
The New Science of Evo Devo

34. VIDEO OR MUSIC
● If possible, link.
○ E.g. direct students to pause
recording, follow link to video &
watch. Then return to
recording/lecture.
● If it’s important to display the video,
use only what’s needed, and pause
or intersperse it with lecture
material
https://www.youtube.com/watch?v=UXP307MGQzs

35. SEE OUR WEBSITE FOR UNDERSTANDING LICENSES
I waive copyright in my work
There is no known
copyright in this work

36. Accessibility &
Copyright

37. ● Making text searchable copy for
disabled is not transformative
(factor 1), but still is fair overall
● In Authors Guild v. HathiTrust, these
were provided only to patrons w/
certified disability
● More boldly we might provide
remediated content as default for
UCB students in bCourses
● What might be fair for non-profit,
enrolled student, time-limited access
class may exceed fair use for open or
for-profit courses

38. ● Marrakesh Treaty facilitates creation
& international transfer of adapted
books for people with blindness or
visual impairments
● U.S. has implemented, 17 USC 121A
● However, sharing is subject to
requirements including verification of
print disability
● A savings clause (121A(e)) preserves
fair use. So we can see that, just as
with TEACH Act (§ 110), fair use (§
107) may be more powerful exception

39. Contact us!
We can help!
Office of Scholarly
Communication
Services
Website:
www.lib.berkeley.edu/scholcomm
E-mail:
schol-comm@berkeley.edu