Copyright Basics and Fairer Fair Use Jane Morris

Copyright Basics and Fairer Fair Use Jane Morris Scholarly Communication Librarian Boston College

The whole point Congress shall have the power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries (US Constitution, Art. I, Sec 8)

What’s protected • Original works of authorship • Fixed in a tangible medium • Expression, not ideas or facts

How do you get copyright in what you create? • The easiest part – Do Nothing! • "copyright" is a bundle of exclusive rights, conferred by federal statute (Title 17 U. S. C. ) automatically, upon the author of a work, at the instant of its creation.

What exclusive rights does the copyright holder have? • • • To reproduce the copyrighted work in copies; To prepare derivative works (the movie of a book is a derivative work); To distribute copies of the copyrighted work publicly; To perform the copyrighted work publicly; To display the copyrighted work publicly, and In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

That is the bundle • • You can keep all the sticks, give some away or share some or sell some

Important exceptions to the exclusive rights • • Works in the public domain Fair use Classroom teaching Permission given up front (Open Access)

What’s in the public domain? Public domain works not protected by copyright law: • works where the creator has expressly disclaimed a copyright interest; • works created by the federal government, for example, data files from the 1990 Census; and • works created and published before 1923, but then it gets complicated Public domain chart

Fair use of a copyrighted work for purposes such as • Criticism • Comment • News reporting • Teaching • Scholarship or • Research Is not an infringement of copyright.

What use is “fair”? The statutory factors must be “balanced”: • The purpose and character of the use • The nature of the copyrighted work • The amount, substantiality, or portion used in relation to the copyrighted work as a whole • The effect of the use on the potential market of the copyrighted work

The purpose and character of the use • Is it for nonprofit, educational or commercial use? • Educational use is a factor in favor of fair use, but it is only one factor.

The nature of the copyrighted work • Creative works and unpublished works are given greater consideration than published, informational works. • The workbook example

The amount and substantiality of the portion used Requires consideration of • the proportion of the larger work that is copied and used, (Did you use a large part of it? ) and • the significance of the copied portion (Is the part you used the heart of the work? )

The effect of the use on the potential market of the copyrighted work. • This factor is regarded as the most critical one in determining fair use. • If the reproduction of a copyrighted work reduces the potential market and sales of the copyright owner, that use is unlikely to be found a fair use.

Guidelines: Resist the temptation! • There are many guidelines, rules of thumb, safe harbors, but they are not part of the law. * • They are tempting because they are Black and • Fair Use is very GRAY • The good faith defense protects librarians

Context is everything • Courts interpret the law (the four factors) • They also make policy • Be the good guy – Your use generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.

Transformative use • Have you transformed the work in some way (related to factor 1) – Purpose – Context – Audience – Insight • Use only the amount needed to accomplish your purpose

Code of Best Practices in Fair Use in Academic and Research Libraries January 2012 ARL, Center for Social Media, Program on Information Justice and Intellectual Property, Washington College of Law, American University

Doesn’t change the law so why write it? • Fair use is court-interpreted, flexible • Deciding fair use requires a thoughtful evaluation of the facts, the law, and the norms of the relevant community. • Effort to come to consensus on what those standards are among librarians – Adapts fair use to the library mission – Identifies them, solidifies them, makes them explicit and enhances reliability

Principle 1 It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.

Course reserves • Not material marketed for courses (texts, workbooks) • Time-limited to enrolled students • Connected to purpose in kind/amount • Good faith – info to students and instructors; full attribution • Document fair use rationale; review periodically

Principle 2 It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.

Marketing collections • • • Full attribution Amount and format appropriate to purpose Images (low res) Exhibit catalogs – no charge beyond cost Use technology; discourage downloading Provide feedback mechanism

Principle 3 • It is fair use to make digital copies of collection items that are likely to deteriorate, or that exist only in difficult-toaccess formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.

Preservation copies • • • Only when digital version is not available Not to increase circulating copies Off-premises access for authorized users Full attribution Use technology to prevent redistribution Feedback mechanism

Principle 4 It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.

Special collections • Uniqueness counts • Sensitivity to privacy issues • Can’t locate creator, not commercially exploited • Technological protections • Feedback mechanism • Collection in its entirety • Add context, commentary, etc.

Principle 5 When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collection in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.

For the disabled • • Time limited Work with disability services Tech protection Consistent policies and publicized for the affected community

Principle 6 It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use.

Work submitted to IR • • • Feedback mechanism Educate on fair use Full attribution Clear institutional policy Individual help with decisions

Principle 7 It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes.

Principle 8 It is fair use to create topically based collections of websites and other material from the Internet and to make them available for scholarly use.

GSU e-reserves decision • Brought by publishers; financed by CCC • Concerned e-reserves and electronic course sites • Dealt with excerpts from books – no other media • GSU used a fair use checklist

Factor analysis • Purpose and character – favors libraries (but not transformative) • Nature of the work – favors nonfiction use

Factor 3 • Amount and substantiality – 10 chapters or less, use 10% – More than 10 chapters – use one – Not the heart of the work – Rejects classroom guidelines – Use all pages to determine the 10% – Chapters are not separate works – Multiple semester use OK – Amounts are not absolute

Factor 4 • Effect on the potential market – Favors the rightsholder – BUT – there must be a readily available and reasonably priced license of digital excerpts (not the whole work) – Is the excerpt so large it threatens market for the whole?

Additional considerations • If no one reads it – no harm done • Consider policy implications – does the use encourage creative work • Court dismissed the idea that the licensing revenues are significant loss • Strict mathematical analysis – 3: 1 wins, no matter which 3 • Narrower/more mechanical than the Code

Now what? • Of the original 99 excerpts only 5 were infringing • Decision is not binding on other libraries but provides a safe harbor for the risk averse • May be appealed • Only dealt with book chapters not other media

Learn more • Copyright Term and Public Domain • Columbia University Libraries Copyright Advisory • CU Fundamentals of Copyright podcasts • Code of Best Practices in Fair Use in Academic and Research Libraries • ARL Issue Brief on the GSU e-reserves case and webcast