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Fair Use in the Traditional Classroom and Online Settings Frank Lancaster UT Office of the General Counsel Presented at The University of Tennessee Martin.

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Presentation on theme: "Fair Use in the Traditional Classroom and Online Settings Frank Lancaster UT Office of the General Counsel Presented at The University of Tennessee Martin."— Presentation transcript:

1 Fair Use in the Traditional Classroom and Online Settings Frank Lancaster UT Office of the General Counsel Presented at The University of Tennessee Martin March 12,

2 Introduction 2

3 What is a Copyright? A copyright is the legal right to control original expression – to exclude others from making copies (it is literally the “right” to make “copies”). A copyright owner has the exclusive rights (subject to specific exceptions) to: o Reproduction (Making Copies) o Performance and Display o Distribution (Publication) o Creation of Derivative works (Adaptation)  Example – turning a book into a movie 3

4 Constitutional Basis of Copyright Law Article I, Section 8, Clause 8: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.” 4

5 Copyright Policy Purpose of copyright law: Benefit the public Method of achieving the purpose of copyright law: Incentivize creators to create by giving them a period of exclusive right to profit from their creations Copyright law is an ever-changing compromise/optimization between these competing interests 5

6 Copyright Protection 6

7 What Does Copyright Law Protect? Copyright protects expression – not facts or ideas What is protected is how you say it, not the substance of what you say (Ideas can be protected by patent law if novel, useful, and non-obvious) 7

8 Protectability Requires Originality Key to Protection: Originality Lenient standard  Independent Creation = Non-Copied  A Modicum of Creativity – “[T]he requisite level of creativity is extremely low.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991). 8

9 When Does Copyright Protection Start? A protectable expression is protected from the instant it is fixed in a tangible medium of expression = Recorded in some concrete way For words – usually typed or written down Registration with Copyright Office and Notice (© – the “C in a Circle”) are not required for protection 9

10 Use of Copyrighted Materials 10

11 In General – Be Careful of Copying Always think before you copy something Just because you can – that does not mean you may Things on the Internet are not in the Public Domain just because they’re on the Internet. 11

12 Digital Millennium Copyright Act 1998 Digital Millennium Copyright Act (“DMCA”) Do not strip off copyright ownership information! Called “Copyright Management Information” or “CMI” DMCA makes it illegal to circumvent or tamper with technological protection measures 12

13 Some Internet Pointers Use clearly public domain images and content o Note – Things published in the United States before 1923 are in the public domain Seek permission when in doubt Link instead of copying Be careful about Site Terms and Conditions 13

14 Four Ways To Use Copyrighted Materials Safely/Lawfully Permission – 100% protection Section 110(1) – Very strong protection for face-to-face teaching Section 110(2) (TEACH Act) – Fairly strong protection for online teaching Section 107 Fair Use – Fuzzy protection based on case-by-case analysis 14

15 Getting Permission Permitted use is always lawful Better to get it in writing – but not legally necessary Most sources have an indication of whom to ask o Copyright Clearance Center (http://www.copyright.com/)http://www.copyright.com/ 15

16 Library Materials – A Special Case of Permission Check with the UT Martin Library about materials that are licensed for classroom reproduction/posting 16

17 Getting Permission – Sample Forms Columbia Forms: ions/requesting-permission/model-forms/ ions/requesting-permission/model-forms/ Texas Form: Michigan Form: 9569&sid= &sid= Duke Form: ntly-asked-questions/toolkit/ ntly-asked-questions/toolkit/ 17

18 Special Rule for Face-To-Face Teaching Copyright Act Section 110(1) protects “performance or display of a work by instructors or pupils in the course of face-to- face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction …” 18

19 Special Rule for On-Line Education TEACH Act – Copyright Act Section 110(2) – protects performance/display if: o Directly related and of material assistance to the teaching o Under the actual supervision of an instructor o Recipients limited to enrolled students o Use technical measures to protect against unauthorized retention/retransmission o University has policies/training regarding copyright o Copyright notice to students 19

20 Fair Use A copyright owner’s rights are trumped by fair use of copyrighted material Need both o Proper Context/Purpose o Pass Fair Use Four-Factor Balancing Test 20

21 Fair Use – The Statute “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproductions in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1)The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work.” 21

22 Fair Use – Contexts Examples of Fair Use Contexts/Purposes o Criticism o Comment o News Reporting o Teaching (including multiple copies for classroom use) o Scholarship o Research 22

23 Fair Use Four Factor Test Fair Use Balancing Test – Look at: o The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes o The nature of the copyrighted work o The amount and substantiality of the portion used in relation to the copyrighted work as a whole o The effect of the use upon the potential market for or value of the copyrighted work Georgia State Case => No One Factor Trumps 23

24 Fair Use – Factor 1 The Purpose and Character of the Use 24 Favors Fair UseWeighs Against Fair Use Educational Non-ProfitCommercial Transformative (e.g., for comment, critique, or parody) Simple Reproduction

25 2 Live Crew’s “Pretty Woman” 1964 Roy Orbison Song “Pretty Woman” Live Crew Rap Version of “Pretty Woman” o Uses same melody as original Roy Orbison song o Uses some of same lyrics o Other, new, lyrics satirize and parody original song o Was this a fair use? 25

26 Answer Yes Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Strong protection for parody Recognition that you can’t do parody without some copying: “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination.” 26

27 Gone with the Wind 1936 – Margaret Mitchell published Gone with the Wind 2001 – Alice Randall published The Wind Done Gone o The same story told from the viewpoint of a slave living on Scarlett O’Hara’s plantation o Uses the characters, plot, major scenes – and verbatim copies of some of the dialogue – from Gone with the Wind to criticize the novel’s depiction of slavery and the American South o Was this a fair use? 27

28 Answer Yes Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001). A “parody” does not have to be humorous – the key element is borrowing from another work in order to to comment/critique 28

29 Fair Use – Factor 2 The Nature of the Copyrighted Work 29 Favors Fair UseWeighs Against Fair Use Factual/Practical WorksHighly Creative Works Published WorkUnpublished Work

30 Fair Use – Factor 3 The Amount and Substantiality Used 30 Favors Fair UseWeighs Against Fair Use QuantitativeCopy a small amountCopy a large amount Qualitative Copy heart of work

31 President Ford’s Memoirs The Nation Magazine printed a portion of Gerald Ford’s Memoirs o Magazine used about 300 words of copyrighted material – out of a 450 page book. o The part quoted was about Ford’s decision to pardon Nixon o Was this a fair use? 31

32 Answer No – not a fair use Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985). The magazine took “the heart of the work” Qualitative importance (and commercial use) trumped quantitative minimalness 32

33 Fair Use – Factor 4 The Effect on the Market/Value of the Work Giving the students a copy so they don’t have to buy it – sure to flunk the fair use test. 33 Favors Fair UseWeighs Against Fair Use Little or no impact on current or potential market Affects copyright owner’s ability to sell product Affects copyright owner’s ability to adapt work

34 Fair Use and Permissions It never hurts to ask for permission – does not count against you on fair use analysis o Supreme Court => “[B]eing denied permission to use a work does not weigh against a finding of fair use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n. 18 (1993). 34

35 Documenting/Record-Keeping Keep a File of Permissions Keep a File of Fair Use Analyses o Columbia Fair Use Checklist: 9/10/fairusechecklist.pdf 9/10/fairusechecklist.pdf 35

36 Providing Copies – Uploading PDFs to Blackboard 36

37 Providing Copies to Students Fiscal Policy FI0155 United States Copyright Office Circular 21 – “Reproduction of Copyrighted Works by Educators and Librarians” o Guidelines for Classroom Reproduction provide very little protection for copying – require “spontaneity” 37

38 The Coursepack Case A commercial copyshop prepared coursepacks of readings that were sold to students at the University of Michigan Included excerpts of books that were 5% to 30% of the original books. o Was this a fair use? 38

39 Answer No Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996). Commercial use and harm to market for original books => not a fair use o Note – the vote was 8-5 Any time someone is copying so that someone else does not have to buy the original – that’s a red flag, it’s not likely to be a fair use. 39

40 The E-Reserves Case Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014) (the “Georgia State Case”). o Georgia State made materials available to students on line, instead of hard copies on reserve in library o Was this a fair use? 40

41 Answer Sort of Of 75 claimed infringements, the trial court ruled in favor Georgia State on 70 o On the 5 violations, a limited injunction issued: “Follow Your New Policy” District Court used a 10% or 1-Chapter Rule o Court of appeals rejected quantitative safe harbor Georgia State likely to win most/all on remand. BUT … Georgia State has spent more than $3 Million defending the case. 41

42 Uploading to Blackboard Don’t upload materials to Blackboard for your students to use unless: – You have permission – You have performed (and saved) a written fair-use analysis fairly justifying doing so. Never upload materials to Blackboard for your students to use in lieu of having them purchase the materials 42

43 Some Resources 43

44 Some Copyright Resources Website for U.S. Copyright Office o o Copyright Circulars – UT Office of the General Counsel Website – copyright.html copyright.html o Has Links to Columbia, Stanford, Texas 44

45 Questions/Comments? 45


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