Copyright Update July 12, 2012 The Direction of Fair Use for Education: New Law and New Possibilities Kenneth D. Crews Director, Copyright Advisory Office Columbia University Libraries Faculty, Columbia Law School

Copyright Update July 12, 2012 Consider This: I am working with a few faculty members that I think are trying to get all of us in trouble. They want me to digitize a stack of books from our library and post them for students to read in connection with the big and required U.S. history course. Would that be violating copyright law? Can you tell the profs that we cant do this?

Copyright Update July 12, 2012 Or This: I have this great idea. I plan to load films and other AV materials onto a server, and then allow friends who are interested in filmmaking to add critiques and comments so we can all share ideas and have a richer understanding for film analysis. I heard that the U.S. Copyright Office said that was OK. Someone told me I should check with you. Im OK, right?

Copyright Update July 12, 2012 From My Copyright Perspective: What Law Applies? Are the works in Copyright or the Public Domain? Are they subject to any licenses? Is this a Fair Use? Is the project staying inside the U.S.?

Copyright Update July 12, 2012 Sometimes I also Ask: Who is asking? What does that person really want? Do others actually make the decisions? Should this be cleared through others? Am I giving legal advice or legal info? What additional info do I need? What is the extent or visibility of the project? How sensitive are the materials?

Copyright Update July 12, 2012 In the Past: Copyright Analysis Assessment of Circumstances Implement Safeguards Find a Way Forward Today: Cautious, but not Conservative Be Prepared to Account for Your Decisions

Copyright Update July 12, 2012 What has Changed? We have Changed The way we work The visibility of our activities The Law has Changed New court rulings New developments in Congress The Legal Environment has Changed…

Copyright Update July 12, 2012 Association for Information Media and Equipment v. The Regents of the University of California Uploading & Streaming of Videos Fair Use Compatibility with Licenses The Authors Guild v. HathiTrust University of Michigan Access from HathiTrust Multiple Backup Copies Attempt to Pursue Orphan Works

Copyright Update July 12, 2012 The Authors Guild v. Google Inc. Rejected Settlement Proposals Certification of Class Fair Use Digitization of Full Books Access Limited to Snippets John Wiley & Sons, Inc. v. Kirtsaeng Cert Granted by U.S. Supreme Court Importation of Lawful Copies produced outside U.S. Application of First Sale Doctrine

Copyright Update July 12, 2012 White v. West Publishing Corp. Alleged infringement of Legal Pleadings in Westlaw American Institute of Physics v. Schwegman, Lundberg & Woesser Appending copies of journal articles to patent applications USPTO issued opinion on fair use International Interlibrary Loan Threats of Legal Action Interpretation of Section 108 Public Records Act

Copyright Update July 12, 2012 Cambridge University Press v. Becker Georgia State University Electronic Reserves Course Management Systems Fair Use Trial: May-June 2011 Decision: May 2012 Appeal?

Copyright Update July 12, 2012 Cambridge University Press v. Becker Finding: Almost all uses in question were within fair use Fundamentals: The Four Factors in the Statute Rejection of Rigorous Limits Creation of a relatively safe zone of uses that are decidedly small

Copyright Update July 12, 2012 Poll Question 1 Has the Georgia State case (aka Cambridge U. Press v. Becker) been the subject of discussion at your college, university, or library?

Copyright Update July 12, 2012 We all Know Copyright… Grant of Rights to Owners Wide Range of Protected Works Long Term of Protection Exceptions & Limitations Section 107: Fair Use Section 108: Libraries Section 109: First Sale Section 110: Classroom Use

Copyright Update July 12, 2012 Protectable Works Books Music Sound Recordings Art and Photographs Motion Pictures Computer Software Websites Dance Choreography

Copyright Update July 12, 2012 Exceptions and Limitations Section 107: Fair Use Purpose of the Use Education vs. Commercial Transformative Nature of the Work Used Amount Used Effect of the Use on Market or Value

Copyright Update July 12, 2012 Georgia State and the Four Factors Must consider all factors. Evaluate them flexibly in light of the circumstances. Avoid rigid interpretations. Rejection of the Classroom Guidelines. Rejection of One-Time Use Limitation.

Copyright Update July 12, 2012 Classroom Guidelines of 1976 Guidelines as Minimum Standard. Plaintiffs do not explain their decision to seek acceptance of the minimum standards as the maximum standards. Legislative history is useful when a statute is ambiguous, but the statute is not ambiguous, though it sets vary general standards for determining fair use. The brightline restriction stands in contrast to the statutory scheme of Section 107. Caps are not compatible with Section 107. Restrictions undermine the teaching objectives of 107.

Copyright Update July 12, 2012 Factor 1: The Purpose of the Use The fact that the copying is done by a nonprofit educational institution leaves no doubt on this point. Quoting the U.S. Supreme Court: The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.

Copyright Update July 12, 2012 Factor 2: The Nature of the Work The works are original and copyrighted. However, courts have generally favored the fair use of non-fiction materials. What might this suggest for fiction, poetry, art, music, and other more creative works?

Copyright Update July 12, 2012 Factor 3: The Amount Used Books with fewer than 10 Chapters: Copying not more than 10% is permissible Books with 10 or more Chapters: Copying of not more than 1 chapter is permissible These portions are decidedly small.

Copyright Update July 12, 2012 Factor 4: The Effect on the Market for or Value of the Work factor four weighs heavily in Plaintiffs favor when permissions for digital excerpts are readily available. If excerpts are not readily available as stated, factor four weighs in Defendants favor. the unpaid use of small excerpts will not discourage academic authors from creating new works, will have no appreciable effect on Plaintiffs ability to publish scholarly works, and will promote the spread of knowledge

Copyright Update July 12, 2012 A Bit More (always more): Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course. Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others. The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.

Copyright Update July 12, 2012 What Next? Likely Appeal to the 11 th Circuit Evaluate Your Policy E-Reserves Course Management System Fair Use in General Determine New Policy Needs Consult Colleagues & Counsel Develop Education & Support Systems

Copyright Update July 12, 2012 Poll Question 2 Does your organization currently have a written policy on fair use of copyrighted works?

Copyright Update July 12, 2012 Take Action & Take Control Exercise Fair Use Build Your Support Team Apply Sound Legal Principles Anticipate Legal Challenges Inform & Education Colleagues Stop Transferring Copyright Ownership Encourage Open Access Send your Opinions to Washington Work with Your Associations

Copyright Update July 12, 2012 Poll Question 3 If you were appointed at your organization to head the effort to draft or revise your fair use policy, which one of the following would be most important in helping you develop a good policy:

Copyright Update July 12, 2012 Thank You! Kenneth D. Crews