COPYRIGHT LAW Reclaiming Fair Use: A Balancing Act Title V-B Champions Faculty Success Center, Tech Building 4 th Floor January 15, 2013 Tatjana Martinez, JD

Fair Use - Section 107 Allows limited use of copyrighted materials without permission or payment, when the benefit to society is larger than the damage to the copyright holder. FIRST Amendment Protection However, not all uses in an academic context are automatically considered fair use. One must apply the Factors on a case by case basis: the four-factor test (Sec 107 of the 1976 Copyright Act.1) 1. Purpose & Character of Use 2. Nature of Copyright Work 3. Amount & Substantiality of Use/Work as a whole 4. Effect of Use on market or value of the Work/Excessive economic harm 2

KNOW THE LAW…FAIR USE is not an exception to Copyright compliance, it is a “legal defense” Set Policy and Abide by it Use Common Sense: It is the best practice!

Types of copyright infringement Direct infringement – unauthorized copying of copyrighted work…i.e., copy a poem, take a video, Indirect infringement Contributory infringement – enable students, e.g. Providing protected access code Vicarious infringement- ability to control the action “Respondeat superior” – let the master answer—attaches to the institution 4

DMCA: Digital Millennium Act 1998 DMCA has five titles. The first four impact postsecondary educational institutions Align U.S Copyright Law with the World Intellectual Property Organization (WIPO) Copyright Treaty, Performances & Phonograms Treaty Online Copyright Infringement Liability Limitation Computer Maintenance or Repair Exemption Miscellaneous Provisions lead to: TEACH ACT Also, allows libraries and archives to take advantage of digital technologies Creates a new form of protection for the design of vessel hulls. [Perfect example of an unrelated amendment to a bill that was sure to pass]

DMCA: Overview BALANCES interests of internet service providers (ISP) and copyright owners when infringements occur in a digital environment (DE) by the users. Includes penalties. Protections are in place for the ISP if they follow certain conditions. An ISP must take steps when aware that infringing materials reside on its network: Adopt and implement a policy Policy must provide for termination of repeat infringers Accommodate standard technical measures used by copyright owners to protect copyrighted works

TEACH ACT (2002) 1. Amends sections 110(2) and 112(f) of the U.S. Copyright Act.2. TEACH Act Seeks to balance the perspectives of both copyright owners and content users, and Provides guidance for today's academic institutions, for Special digital uses, such as online distance learning and course management systems, require special attention. Facilitates and enables the performance and display of copyrighted materials for distance education by accredited, non-profit educational institutions (and some government entities) that meet the Act's qualifying requirements: Must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials. Primary purpose is to balance the needs of distance learners and educators with the rights of copyright holders. TEACH applies to distance education that includes the participation of any enrolled student, on or off campus. 7

Fair Use/TEACH ACT Summary Balancing Act… De minimis Use (10% or less) Transformative (repurposing, adding new parts for a new audience…) Distance Education (by non-profit educational institution) Enrolled Students in a specific term(exclusive user)

Georgia State University The Case court-opinion-in-georgia-state-university-copyright- case/ court-opinion-in-georgia-state-university-copyright- case/ The Fair Use Checklist

GSU, the Case IN THE UNITED STATES DISTRICT COURT, FOR THE NORTHERN DISTRICT OF GEORGIA, U.S.OJ>. Atlanta. MAY ATLANTA DIVISION “Significant not only for GSU, but for all educational fair use in general”WHY? Kerry L. Heyward, the university's chief lawyer, added that the case "highlights the importance of fair use in providing academic faculty a cost- effective, legal way to spread important knowledge to their students.“

GSU Fair Use Checklist Identifies factors to consider that favor fair use and factors that do not. It is a roadmap. If the favoring factors outnumber those against it, reliance on fair use is justified. Where fewer than half the factors favor fair use, permission form the copyright holder is needed.

Factor 1 Purpose and Character of Fair Use Weighs in Favor of Fair Use Nonprofit Ed. Institution Purpose of Teaching and/or Scholarship or Criticism, Comment, News Reporting, or Parody Noncommercial, nonprofit, ed. use Transformative (changes work for new utility or purpose) Necessary to achieve ed. purpose Weighs Against Fair Use Commercial activity, profit from useFor public distributionUsed for entertainmentMirror image copy Use exceeds what is necessary to achieve ed. purpose

Factor 2 Nature of Copyrighted Work Weighs in Favor of Fair Use Published Work Factual/informational & educational in nature or nonfiction Non-consumable Weighs Against Fair Use Unpublished Work Fiction or highly creative (art, music, novels, films, plays, poetry) Consumable (workbook, test)

Factor 3 Amount & sustainability of Portion Used Weighs in favor of Fair Use De minimis 10% Portion used not central or significant to entire work as a whole Amount taken tailored to legitimate purpose in the course Access limited to students enrolled in course for only the term. Weighs Against Fair Use Large portion used (more than 10%) Portion used is central to Work, “heart of the work” Amount taken is more than necessary to accomplish demonstrated legitimate purpose Access no limited to students

Factor 4 Effect on Market for Original Work Weighs in Favor of Fair Use Permission for digital excerpt is not easily available at reasonable price Decidedly small portion usedUser owns lawfully acquired copyUse stimulates market Weighs Against Fair Use Permission readily availableLarge portion or entire work used User does not own lawfully acquired copy Use impairs the market or potential market of original work.

2012 AND BEYOND… YouTube videos Google Plus (social layer…other sites overlap) FaceBook Twitter Tegrity Campus Others? SOCIAL NETWORKING…

Lecture Capture Technology Campus Technology Nov digital edition: Captured-Lectures.aspx?Page=1 Captured-Lectures.aspx?Page=1 Lectures use images, video, works from other sources, each with their own CopyRight issues. OK if students enrolled in the class know and agree to it. Who owns faculty lectures NSU is not an open-content university lectures are part of the content of the class " Basically, what the policy says is that any materials created using our resources belong to us"

On Capturing Guest Speakers… Have them sign a release...anytime a person will be recorded and that recording may be re-used…need release

KNOW THE LAW…FAIR USE is not an exception to Copyright compliance, it is a “legal defense”… SET POLICY AND ABIDE BY IT USE OF COMMON SENSE is the best practice Recap

Where to go? A Campus Guide /index.html /index.html BITLAW Legal Resource at Center for Social Media, Teaching Materials, and more… Code of Best Practices at … s/pages/code-of-best-practices_arl_0.pdf s/pages/code-of-best-practices_arl_0.pdf Creative Commons at 20

LINKS TO MORE INFO Copyright on Campus. Copyright for Educators, Introduction Episode Copyright for Educators- Internet and Web Episode 4, Part Copyright for Educators (Fair Use). Reclaiming Fair Use, new book Professors Patricia Aufderheidi (Center for Social Media) and Peter Jaszi (Washington College of Law at American University). University of Chicago Press 21

LINKS TO MORE INFO, Cont. Georgia State case: The laws:

LINKS, Cont. Fair Use: E-reserves:

LINKS, Cont. Distance education: Center for Social Media: Challenges in Employing Fair Use in Academic and Research Libraries Statement of the Fair Use of Images for Teaching, Research, & Study Fair Use Language for Course Syllabi Fair Use Question of the Month: Digitizing & Streaming Videos from University use-question-month-digitizing-streaming-videos-university-libraryibraryhttp://centerforsocialmedia.org/blog/fair-use/fair- use-question-month-digitizing-streaming-videos-university-libraryibrary FAIR USE: Best Practices 24

References World International Property Organization Retrieved from Fair Use in Copyright. Retrieved from Fair Use in Copyright. Retrieved from Best Practices in Fair Use. Retrieved from : Best Practices in Fair Use. Retrieved from : Journalists, Fair Use and Copyright: SPJ and Principles, Posted by Patricia Aufderheide, March 27, Retrieved from copyright-spj-and-principles Journalists, Fair Use and Copyright: SPJ and Principles, Posted by Patricia Aufderheide, March 27, Retrieved from copyright-spj-and-principles