Copyright, Fair Use, and Creative Commons A Crash Course for Administrators

What is the purpose of

Copyright "Copyright" is the right to control some uses of a creative work, be it a book, movie, song, or web design. –While the specifics vary from country to country, the essence is the same: copyright holders, whether authors, their heirs, or their publishers, have some rights to control how their work is used.

To promote creativity, innovation and the spread of knowledge Article 1 Section 8 U.S. Constitution

OWNERS USERS Copyright Law Balances Rights of Owners and Users

Copyright Infringement "Copyright infringement" means exercising one of the copyright holder's exclusive rights without permission. These exclusive rights include copying (or "reproducing") the work, distributing it, publicly performing or displaying it, and making "derivative works" such as abridgments or translations. –For instance, making a thousand copies of a video and selling them would almost certainly infringe the copyright holder's rights to reproduce and distribute the work. –Under certain circumstances, people who contribute to or are responsible for the infringements may also be held liable — this is called secondary or derivative liability.

Copyright Infringement-Cease & Desist Cease and desist letters can be used to assert any sort of legal right, and are often used for copyright, trademark, and related "Intellectual Property" claims. People may think they have been sued when they receive a cease and desist letter. This isn't the case. The letter may threaten a lawsuit, but it is not the same as a complaint that is filed when an actual lawsuit begins.

Digital Millennium Copyright Act A variation on the cease and desist letter is the "Section 512 takedown notice", named after Section 512 of the Digital Millennium Copyright Act (the "DMCA"). A § 512 takedown notice is sent, not directly to an individual, but to her Internet service provider (ISP), which is defined broadly in the DMCA to include search engines, website hosting services, caching services, and companies that simply provide access to the Internet. –In some instances, the organization or individual targeted by the § 512 takedown notice may also receive a copy, either from the ISP or directly from the sender.

Why Does It Matter? Model ethical behavior Lawsuits do happen….

--Section 107 Copyright Act of 1976 The Doctrine of Fair Use

Fair Use as Explained by the U.S. Copyright Office

Fair Use Factors FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE –This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public. –The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new. –The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair. –Further, the more commercial defendant's use, the less likely such use will be fair.

Fair Use Factors FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK –The more creative, and less purely factual, the copyrighted work, the stronger its protection. –In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. –Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. –While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Fair Use Factors FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED –In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair.

Fair Use Factors FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK –This factor is generally held to be the most important factor. –This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. –The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. –The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses.

The Result Copyright Confusion

See no EvilClose the DoorHyper-Comply How We Cope

Educational Use Guidelines Try to Help Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions Guidelines for the Educational Use of Music Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes Fair Use Guidelines for Educational Multimedia

The Result…

Virginia Beach School Board Policy & Regulation Policy 6-63 Copyrighted MaterialsPolicy 6-63 Regulation General InformationRegulation Regulation Print MaterialsRegulation Regulation Computer Programs & SoftwareRegulation Regulation Nonprint MediaRegulation Regulation Acceptable Use of the Division Computer SystemRegulation

But there is a PROBLEM…… Educational use guidelines are confusing! Educational use guidelines can be restrictive! Educational use guidelines are not the law!

The Code of Best Practices in Fair Use for Media Literacy Education To educate educators themselves about how fair use applies to their work To persuade gatekeepers, including school leaders, librarians, and publishers, to accept well-founded assertions of fair use To promote revisions to school policies regarding the use of copyrighted materials that are used in education To discourage copyright owners from threatening or bringing lawsuits In the unlikely event that such suits were brought, to provide the defendant with a basis on which to show that her or his uses were both objectively reasonable and undertaken in good faith.

Organizations Supporting the Code of Best Practices Action Coalition for Media Education (ACME) National Association for Media Literacy Education (NAMLE) National Council of Teachers Of English (NCTE) Visual Studies Division International Communication Association (ICA) Association of College and Research Libraries (ACRL)

Transformative Use Is Fair Use In reviewing the history of fair use litigation, we find that judges return again and again to two key questions: –Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? –Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use? Page 6, Code of Best Practices in Fair Use for Media Literacy Education

What does the Code of Best Practices say? This code of best practices identifies five sets of current practices in the use of copyrighted materials in media literacy education to which the doctrine of fair use clearly applies. –Employing copyrighted material in media literacy lessons –Employing copyrighted material in preparing curriculum materials –Sharing media literacy curriculum materials –Student use of copyrighted materials in their own academic and creative work –Developing audiences for student work Page 10-14, Code of Best Practices in Fair Use for Media Literacy Education

The Principles in the Code of Best Practices Apply to all forms of media. Apply in institutional settings and to non-school- based programs. Concern the unlicensed fair use of copyrighted materials for education, not the way those materials were acquired. Are all subject to a “rule of proportionality.” Page 9-10, Code of Best Practices in Fair Use for Media Literacy Education

Fair Use Checklist

Fair Use Reasoning Process

Let’s Practice Scenario 1: Ms. Nickie and the VideoScenario 1 Scenario 2: Kathy and the Interactive WhiteboardScenario 2 Scenario 3: Mr. Jones and YouTubeScenario 3 Scenario 4: Ms. DaVinci and the WikiScenario 4 Scenario 5: Tony’s PodcastsScenario 5 Scenario 6: Lucy’s History Day ProjectScenario 6 Scenario 7: Johnson Middle School Video YearbookScenario 7

Public Domain Works are in the public domain when their copyright term has expired; they are then freely available for use by anybody. Works may be dedicated to the public domain by their copyright-holder; for instance, the U.S. government has determined that all of its works are in the public domain.

Copyright & Public Domain The Copyright Clause of the Constitution authorizes Congress to create copyright protection for "limited times". –In the U.S. today, a work stays under copyright until 70 years after the author's death (sometimes called "life + 70"), or, in the case of copyrights held by corporations, for 95 years. Any work published before 1923 is in the public domain under U.S. copyright law. Works published since 1923 should be examined to see if they are still copyrighted.

Creative Commons –What is Creative CommonsWhat is Creative Commons An organization offering easy-to-use copyright licenses that encourage distribution of works, while preserving other copyright holder rights. It was founded in the belief that current copyright law in the U.S. is too restrictive and thus harms creative expression and the free exchange of information and ideas. Offering your work under a Creative Commons license does not mean giving up your copyright. It means offering some of your rights to any member of the public but only on certain conditions.

Creative Commons License Conditions Attribution. –You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request. Example: Jane publishes her photograph with an Attribution license, because she wants the world to use her pictures provided they give her credit. Bob finds her photograph online and wants to display it on the front page of his website. Bob puts Jane’s picture on his site, and clearly indicates Jane’s authorship.

Creative Commons License Conditions Noncommercial. –You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only Example: Gus publishes his photograph on his website with a Noncommercial license. Camille prints Gus’ photograph. Camille is not allowed to sell the print photograph without Gus’s permission.

Creative Commons License Conditions No Derivative Works. –You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. Example: Sara licenses a recording of her song with a No Derivative Works license. Joe would like to cut Sara’s track and mix it with his own to produce an entirely new song. Joe cannot do this without Sara’s permission (unless his song amounts to fair use).

Creative Commons License Conditions Share Alike. –You allow others to distribute derivative works only under a license identical to the license that governs your work. Example: Gus’s online photo is licensed under the Noncommercial and Share Alike terms. Camille is an amateur collage artist, and she takes Gus’s photo and puts it into one of her collages. This Share Alike language requires Camille to make her collage available on a Noncommercial plus Share Alike license. It makes her offer her work back to the world on the same terms Gus gave her.

Let’s Try Go to Click on Find Type in “Animal Adaptations” Click on License Create a CC License

Other Copyright Friendly Portals Flickr –can use advanced search to find images under a creative commons license SlideShare—can find PP presentations, Word docs, and PDFs that others have chosen to share Other resources that are copyright friendly can be found at

Resources Used in Presentation Creative Commons. Web. 21 Jan Havidson, Hall. "Copyright and Fair Use Guidelines for Teachers." Copyright Resources. 10 Jan Technology & Learning, Web. 21 Jan Simpson, Carol. Copyright for Administrators. Columbus, Ohio: Linworth Publishing, Print. "Fair Use." U.S. Copyright Office. May U.S. Copyright Office, Web. 8 Jan "Copyrighted Materials." Policies and Regulations. 13 Jul Virginia Beach City Public Schools, Web. 19 Jan "Acceptable Use Policy." Policies and Regulations. 19 Aug Virginia Beach City Public Schools, Web. 19 Jan "Circular 21: Reproduction of Copyrighted Works by Educators and Librarians." Copyright. Nov U.S. Copyright Office, Web. 10 Jan "Code of Best Practices in Fair Use for Media Literacy Education." 11 Nov Center for Social Media, Web. 10 Jan Dorman, Jennifer. "Copyright and the Evolution of Creative Commons." Slide Share, Web. 21 Jan Hobbs, Renee. "Yes, You Can Use Copyrighted Materials." Slide Share, Web. 21 Jan "Checklist for Fair Use." 10 Mar Copyright Management Center, Web. 22 Jan Hokanson, Kristin, and Renee Hobbs. "Tool for Supporting the Fair Use Reasoning Process." Temple Media Education Lab, Web. 20 Jan Center for Social Media. Web. 22 Jan