Ethical and Legal Concerns Tyler Veak, PhD Scholarly Communication Librarian Guillermin Library July, 2012

Why is this important? Recently, the AAUP “encouraged” a number of institutions, including Cornell, Syracuse, Marquette and Hofstra to draft and adopt “strong institutional policies on the digital use of copyrighted materials.”— AAUP, Press Release  These policies have, in effect, set a precedent for other colleges and universities.

The risk of lawsuit is real  Kinkos (1991)  Google books settlement (2008)  Publishers sued Georgia State for copyright Infringement (ongoing)  UCLA challenging online video streaming laws => lawsuit (eminent)

SERIOUS $$$!  Actual damages & profits  Statutory damages $200-$150,000  Attorney’s fees and costs  Injunction  Impoundment  Imprisonment

Why Liberty is vulnerable 1.We are a large and growing, private institution 2.We have one of the largest online programs in the country 3.We have so far done little to insure copyright compliance

So what do we need to do? 1.Understand the law 2.Evaluate current practices 3.Develop policy 4.Educate

What is Protected by Copyright?  Original: A work must be created independently and not copied.  Creative: There must be some minimal degree of creativity involved in making the work.  A work of authorship: This includes literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, and architectural works.  Fixed: The work must be "fixed in a tangible medium of expression

What is not protected?  Facts and ideas  Processes, methods, systems, and procedures  Titles  All works prepared by the United States Government  Constitutions and laws of State governments.  Materials that have passed into the public domain

Copyright Exclusive Rights  Reproduction  Distribution  Public performance  Public display  Derivative works  Sound recordings by digital audio transmission

Copyright Myths  Everything on the web can be used without permission;  All educational use is fair use;  Publication did not have copyright notice, so it must be in the public domain.

Major Exceptions  First Sale Doctrine  Libraries and Archives  Education  Fair Use

Copying for Classroom Use Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made…for classroom use or discussion; provided that: A. The copying meets the tests of brevity and spontaneity; and, B. Meets the cumulative effect test; and C. Each copy includes a notice of copyright. --House Report (Guidelines)

Materials in Blackboard NOTE: The same laws apply!  The distribution of the same copied material does not occur every semester  Only one copy per student;  Material includes copyright notice  Students are not charged a fee beyond cost  Password protection is not an “out”

Multimedia in the Classroom Permissible uses include:  showing all or part of a movie or television show  pictures, images, graphs, or charts in your lecture slides  playing music Must meet the following conditions:  for instructional purposes  in face-to-face teaching (not online)  at a nonprofit educational institution.

Use of Off-air Programs  Can be used to “time shift” for classroom viewing  Cannot be used from sems to sems (10/45 day rule)  Cannot be altered from original content (e.g., mashed or anthologized)  Must include the copyright notice on the broadcast as recorded.

Use of Internet Content  Remember, if it’s a fixed tangible media, it’s copyrighted  Make use of URL links  Use library resources (persistent links)  Creative Commons license? Creative Commons license  When in doubt, ask permission

Fair Use: Four Factors 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. --U.S. Code: Title 17, Ch.1, Sect. 107

Broad requirements  Avoid term-to-term use  Include a copyright notice  Restrict the distribution of copies  Avoid "anthologizing”  Maintain a record (Fair Use Checklist)

Digital Photographs of Works of Art An instructor would like to take digital photographs of paintings, sculptures, or architectural works and share them with her class.

AV Works for Class Presentations An instructor wants to include photographs or music in a PowerPoint presentation for his class lecture. Does he need to seek permission from the copyright owners to do so? What if he wants to make changes to the photograph or music file?

Analog to Digital Conversions A faculty member's departmental library holds several older VHS videocassettes that are used regularly for classroom presentations. The videos are no longer available commercially in either VHS or DVD formats. The faculty member wants to create a compilation of clips by converting segments of the VHS tapes to digital form, and then burning the clips onto DVD for use in classroom lectures.

Posting Readings on Blackboard An instructor scans excerpts from journals, textbooks, and various other sources and creates PDF files of all of the readings. The instructor announces to the class that the readings will be available online at the course Blackboard. Is this fair use?

Textbook Chs. for Classroom Use In the attempt to save students money a professor scans several chapters from an expensive textbook for her course and uploads a PDF file of the chapters to her Blackboard site for students to read. This is the only material the students need from this particular textbook to complete class assignments. Is this a fair use?

For Assistance: Tyler Veak, PhD, MLIS Scholarly Communication Librarian  (on Library homepage)