Fair Use, Permissions & Copyright Infringement in the Digital Age: A copyright primer for faculty using Blackboard Steven J. Cottingham Office of the General Counsel March 27, 2002 © Marquette University All Rights Reserved.

2 Copyright Basics Copyright protects original works of authorship fixed in a tangible medium of expression Copyright protects original works of authorship fixed in a tangible medium of expression Copyright protects the expression of an idea, not the idea itself Copyright protects the expression of an idea, not the idea itself Facts are generally not copyrightable Facts are generally not copyrightable © symbol not required, copyright begins at moment fixed in tangible medium © symbol not required, copyright begins at moment fixed in tangible medium It’s not free just because it’s online It’s not free just because it’s online Not everything is copyrighted-government documents, public domain Not everything is copyrighted-government documents, public domain

3 So What If It’s Copyrighted? Copyright owners have exclusive rights to make copies, create derivate works, distribute, display and perform works publicly Copyright owners have exclusive rights to make copies, create derivate works, distribute, display and perform works publicly If you want to use a protected work, you either need permission or coverage under one of the law’s exemptions such as fair use If you want to use a protected work, you either need permission or coverage under one of the law’s exemptions such as fair use

4 Fair Use: The Main Exemption Fair use exemption created by section 107 of the Copyright LawFair use exemption created by section 107 of the Copyright Law Fair use is analyzed using four factors:Fair use is analyzed using four factors: Character of the UseCharacter of the Use Nature of the material to be copiedNature of the material to be copied Amount and importance of the part copiedAmount and importance of the part copied Effect on market for permissionsEffect on market for permissions

5 Some Comments on Fair Use Factors are interactive Factors are interactive Educational, nonprofit use does not create a blanket fair use exemption Educational, nonprofit use does not create a blanket fair use exemption Commercial use is much more likely to require permission Commercial use is much more likely to require permission Imaginative, unpublished work is more likely to require permission than factual, published work Imaginative, unpublished work is more likely to require permission than factual, published work Using less is better than using more Using less is better than using more An active permissions market is more likely to require permission An active permissions market is more likely to require permission

6 Other Exemptions Section 108 creates some copying exemptions for libraries and archives Section 108 creates some copying exemptions for libraries and archives Section 110(1) creates a blanket exemption for display/performance of a work in face to face teaching Section 110(1) creates a blanket exemption for display/performance of a work in face to face teaching Section 110(2) creates a more limited exemption for transmission and display of still images for classroom instruction; no exemption for audiovisual transmissions or dramatic works Section 110(2) creates a more limited exemption for transmission and display of still images for classroom instruction; no exemption for audiovisual transmissions or dramatic works

7 Blackboard Issues Small portions Small portions Limited access Limited access Limited duration-terminate access for students at end of the term Limited duration-terminate access for students at end of the term Only incorporate materials from legal copies Only incorporate materials from legal copies Link to, rather than copy, sources when possible Link to, rather than copy, sources when possible Beware licensing issues for Library online resources Beware licensing issues for Library online resources

8 Permissions Sometimes there is no other choice Sometimes there is no other choice Follett provides free clearance services for course packs Follett provides free clearance services for course packs There is no foolproof mechanism There is no foolproof mechanism Call OGC, Libraries, Follett Call OGC, Libraries, Follett Copyright Clearance Center Copyright Clearance Center

9 A Word about Trademarks Trademarks identify the source of a good or service Trademarks identify the source of a good or service No fair use equivalent No fair use equivalent Be cautious in using trademarks as hypertext links or otherwise Be cautious in using trademarks as hypertext links or otherwise

10 Tentative Conclusions There are few black and white answers and each use requires its own analysis There are few black and white answers and each use requires its own analysis Sometimes permission will be necessary Sometimes permission will be necessary We are all both consumers and producers of copyrighted material We are all both consumers and producers of copyrighted material

11 Additional Resources U.S. Copyright Office U.S. Copyright Office Marquette Library IP Links page ml Marquette Library IP Links page ml ml ml UT Crash Course in Copyright UT Crash Course in Copyright Stanford University Library Fair Use Page Stanford University Library Fair Use Page