Copyright and E-reserves Tucker Taylor June 2016

Reserves- A brief history….

The Laws Contract law and 109 ADA / Chafee Amendment DMCA 504-2 Takedowns Exceptions 504-2 TEACH Act Fair Use

TEACH Act

TEACH Act http://copyright.uncc.edu/copyright/TEACH/tea chact attempt to modernize the copyright act to accommodate distance education many restrictions not so many benefits http://copyright.uncc.edu/copyright/TEACH/tea chact

TEACH act - benefits Nondramatic literary and sound recordings Reasonable and limited film clips

TEACH Act reasonable control of downstream uses no circumvention of technology only limited and reasonable portions of most works © education program

Fair Use

Four Factor Analysis Amount and substantiality used Purpose of use Impact on the market Purpose of use Nature of the work

Code of Best Practices in Fair Use It is fair use to make appropriately tailored course- related content available to enrolled students via digital networks Possibly transformative Amounts vary

ARL Code of Best Practices for Fair Use Content created for teaching Time available online Only enrolled students It fits the pedagogical need Provide information on fair use for faculty Limits simultaneous access Informs students of rights and responsibilities Full attribution

Other Codes of Best Practices http://www.cmsimpact.org/fair-use/best-practices

Georgia State University Court Case Georgia State University

Court Cases Georgia State University Timeline Pre-2008 2008 Lawsuit filed 2009 University policies updated District court 2012 Appellate court 2014 Back to the district court - 2016

District Court Ruling Of 99 cases, only 5 were found not to be fair use GA State found to be the prevailing party Fair use-4 factors Not transformative but still favored GA State Informational 10% bright line Mixed group- The 5 losses has readily available electronic licensable excerpts

Appellate Court Reversed and remanded with instructions Death of the Classroom Guidelines Affirmed value of nonprofit education Rejection of conflation of coursepacks and e-reserves

Appellate Court - Factor Analysis Factors do not weigh equally Four Factors Nonprofit education favors fair use Creativity may be found, but not very important Evaluative, analytical or subjectively descriptive...or derived from author’s experiences or opinions” 10% rule struck down Most important factor Market harm of both the particular use and if the use were to become widespread (market substitution, licensing market)

District Court Redeux Don’t tick off the judge 5/48 to 4/48 GA State prevailing party Four Factors 25% Nonprofit education 5% - scholarly commentary 30% - market substitution and 40% - impact on the market Potential market of original and value of the work Does it damage the incentive

What do take away from GA State? Choose wisely what you license Educate and Involve Only binding in AL, FL, and GA Only speaks to book chapters Use Fairly, Not Too Much, Have Reasons Keep Calm and E-Reserves On

Talking about Copyright

Talking about copyright Why is it important Effect on scholarship Censorship, criticism Effect on practitioners Public perception Citations, publications Faculty Go where they are Offer help JARGON Elevator talk It’s the long game University attorneys Administrators Students Vendors

thanks tucker taylor tucky@mailbox.sc.edu

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