Copyright & Fair Use in an Open Access World

Presented by Professors Paul Kittle & Hong GuoMt. San Antonio College Library

What Do You Know?

(a short quiz)

A. TrueB. FalseC. It depends

Question #1:

Anything can be used in an educational environment, digital or otherwise, because using copyrighted material to teach with or from is considered “Fair Use.” That is, as a professor, I can use anything I want in my teaching.

Question #2:

Who creates & updates U.S. Copyright law?

A. The U.S. SenateB. The U.S. Copyright OfficeC. The U.S. CongressD. The U.S. House of RepresentativesE. The Mt. SAC Academic Senate

A. Ability to reproduce the work in copies or phonorecordsB. Ability to deny Fair Use in non-profit, educational settingsC. Distribute copies or phonorecords of the work to the publicD. Perform the work publiclyE. Not sure

Question #3:

Which of the following is NOT generally granted the owner of copyright?

Question #4

A professor has scanned several hundred images from various texts to represent Western culture & politics during a particular period of history.

She wants to post them in her Moodlerooms site throughout the semester so that her students can consult them. Is this considered Fair Use?

A. YesB. NoC. It depends

A. YesB. NoC. It depends

Question #5:

A professor wants to upload the contents of a DVD (the entire film) to his Moodlerooms course. Does he need permission (is it Fair Use)?

Why Is It Important to Know?

©Cease & Desist Letters

©Just because you’re right doesn’t mean you won’t get sued.

©Lawsuits – if you lose, you pay--Damages, lost profits of copyright holder--$750 - $30,000 per incident

Risk ManagementFamiliarize yourself with Copyright law & Fair Use

Overview: The Constitutional Provision Respecting Copyright

The Congress shall have Power … …to promote the progress of science and useful arts, by securing for limited tımes to authors and inventors the exclusive right to their respective writings and discoveries.

United States Constitution, Article I, Section 8

• Our British roots: Funk & Wagnalls New World Encyclopedia• What is Copyright: Gale Encyclopedia of Everyday Law

• The Consumer View on Copyright: CQ Researcher

Copyright Protects Only: Original Expressions

Copyright protects original works of authorship fixed in any tangible medium of expression

(1) literary works(2) musical works, including any accompanying words(3) dramatic works, including any accompanying music (4) pantomimes and choreographic works (5) pictorial, graphic, and sculptural works(6) motion pictures and other audiovisual works(7) sound recordings(8) architectural works

In no case does copyright protect an idea.

Copyright Law & the Exceptions

• Copyright Term & the Public Domain in the U.S.

• Limitations on Exclusive Rights: Reproduction by Libraries & Archives (Sect. 108)

• TEACH ACT of 2002 (a quick look at the University of Texas)

• Material on the Internet – Is it Copyrighted?

• Fair Use – the Professor’s friend when used correctly

What Is Fair Use?

• From the US Copyright Office • From the Stanford University Libraries • From the American Library Association• The Association of Research Libraries

• A Fair(y) Use Tale - youtube

Fair Use as Defined in U.S. Law

• Only the original holder of Copyright may determine how that material is distributed or used. This is called "exclusive use." Exclusive use notwithstanding, there are exemptions - and one is "Fair Use."

• How does the Copyright Law define or determine “Fair Use?”– “Four-Factor Fair Use Test"

Fair Use: the 4 factors The Four Factors are a PANE (PNAE)

Although I am giving you the four factors out of order, PANE seems easier to remember than PNAE.

The Law states: Easier to remember (PANE):

1. Purpose 1. Purpose2. Nature 3. Amount3. Amount 2. Nature4. Effect 4. Effect

Fair Use: Factor One - Purpose The Four Factors are a PANE (PNAE)

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Favorable use: teaching, research, scholarship, non-profit, criticism, parody, comment, news reporting, transforming use, employing restricted access

Not favorable: verbatim copying, profitable use, entertainment, bad-faith behavior, commercial use

Fair Use: Factor Three - Amount The Four Factors are a PANE (PNAE)

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Favorable use: small quantity in relation to whole, the portion used is not central or significant to entire work, is not considered the heart of the work, amount is appropriate for educational purpose

Not favorable: large portion used, the portion used is central, significant, and considered the heart of the work

Fair Use: Factor Two - Nature The Four Factors are a PANE (PNAE)

(2) the nature of the copyrighted work;

Favorable use: published work, factual or nonfiction work, clear educational objectives germane to the your use of the work

Less favorable, more protected: Unpublished work, highly creative work, fiction

Fair Use: Factor Four - Effect The Four Factors are a PANE (PNAE)

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Favorable use: work is lawfully acquired, one or few copies are made, no significant effect on the market or potential market for the copyrighted work, lack of licensing mechanisms, lack of permissions market

Not favorable: replacement for or circumvention of the purchase of the copyrighted work, significantly affects the market or potential market value of the copyrighted work or its derivative work, licensing mechanisms are an option, permissions-market is strong, many copies are made, copy is made electronically accessible, repeated long-term use. Includes out of print and unpublished works that could have potential market value.

Let’s Look at Some Examples

• I want to photocopy a couple pages from a Math workbook & give them to my students. Is this Fair Use?

• I want to upload a copy of my friend’s DVD to a Mt.SAC server & show it to my class. Is this Fair Use?

• I have scanned images from a variety of sources & text to represent Western culture & want to load them in my Moodlerooms course. Is this Fair Use?

Did You Know?

• That in most cases, student work turned in to you is copyrighted by the student?

• That you often sign over your rights when you publish?

• That the Academic Senate at Mt.SAC has insured YOU own any DL developed course? YOU have the ownership rights!*

Creative Commons

• What is – and isn’t - it?– An alternative “fair use”– It is NOT a law– It is a type of license “permission to use”

• How can it help? See: http://creativecommons.org/licenses/

Similar to the Creative Commons concept, pertaining primarily to software.• Copyleft is a general method for making a program (or

other work) free, and requiring all modified and extended versions of the program to be free as well.

http://www.gnu.org/copyleft/copyleft.htmlThe GNU Project: http://www.gnu.org/gnu/thegnuproject.html

Copyleft, GNU and other Beasts

• YOUR LIBRARY!!!--Library databases (images, videos, etc.)--Rich Media Research Guide http://mtsac.libguides.com/richmedia

• Most Government Images• Public Domain

Where Can You Find Copyright Free Media

Copyright/Fair Use in the New Media Age

• Aereo – Is open broadcast open?– https://aereo.com/

• http://www.newyorker.com/online/blogs/elements/2014/01/aereo-supreme-court-future-of-television-internet.html

• Aereo case set for April with Supreme Court– http://www.deadline.com/2014/02/aereo-supreme-court-br

oadcasters-barry-diller-abc-nbc-cbs-fox/

Plagiarism 2.0: Information Ethics in the Digital Age

• Here is a sample of legal streaming media at Mt.SAC. The topic is “Plagiarism & Intellectual Property” via Mt.SAC's "Films On Demand" subscription (you TOO can embed your legal videos- Login may be required)

• https://libris.mtsac.edu/login?url=http://digital.films.com/PortalPlaylists.aspx?aid=19580&xtid=43790 (add "target="blank" if you are going to embed this in your course – copy & paste if it doesn’t go straight there.

Useful Resources• New Fair Use Guidance for Online Educators (Magna Publications White

Paper)• Mt.SAC Library Rich Media Guide• TEACH ACT• Stanford Copyright & Fair Use Site• Columbia University Libraries’ Fair Use Guide• Georgia State University’s Fair Use Guide (PDF)

The landmark case & current ruling• UCLA’s Landmark Case• Center for Media & Social Impact (CMSI)

Copyright & Fair Use in Media Site• Edutopia’s “Copy wrongs”• CopyLeft• New Laws coming:

• INTRODUCTION OF THE TECHNOLOGY, EQUALITY, AND ACCESSIBILITY IN COLLEGE AND HIGHER EDUCATION (TEACH) ACT -- (Extensions of Remarks - November 15, 2013)

• Appeal of Georgia State University ruling.• Possible appeal of UCLA’s use of media in DL ruling.