Copyright Law and Visual Resource Policy

Georgia HarperUniversity of Texas System

Overview: Fair Use of Visual Resources

Purpose of CopyrightImproving society by supporting the growth of knowledgeBalancing interests

Owners’ rights; users’ rights

Fair Use of Visual ResourcesThe TEACH Act and Use of Visual Resources

Copyright Basics

What Does Copyright Protect?When Does it Begin and End?What Does it Mean to Owners?

Understanding Ownership

What Does it Mean to Users?What is Fair Use?What are Performance Rights?

Who’s Liable for Infringement?

What Does Copyright Protect?

Original Expression - A Person’s Unique Way of Saying SomethingFixed in a Tangible MediumOnly Requires Minimum CreativityDoes Not Protect FactsDoes Not Protect Ideas, Systems, Processes

When Does it Begin and End?

Today: Protection Starts at the Moment of Fixation in a Tangible MediumIt’s AutomaticNotice is Not RequiredRegistration Carries Certain Benefits but is only Required to Bring a Lawsuit

When Does It Begin and End? Terms of Protection

Works Published Before 1978Publication + 95 years or 28 years if published before 1964 and not renewed

Works Created During/After 1978Life of author + 70Works for hire: Publication + 95/creation + 120

Works Unpublished Before 1978Life of author + 70 or 2003, whichever is longer

Exclusive Rights ofthe Copyright Owner

Make CopiesCreate Derivative WorksDistribute, Display and Perform Works PubliclyArtists’ Moral Rights

Integrity/attribution

Controlling Copies: Not the Only Way

Exemptions for Higher Education

Fair Use (17 USC 107)Library’s Special Privileges (108)First Sale Doctrine (109)Educational Performances/Displays (110)Modifications for Blind and Disabled (121)

Role of Fair Use

Fair Use Embodies a Balance of Interests

Between owner control and public accessBetween owner control and public’s First Amendment rights

Fair Use Addresses Market FailuresFacilitates good, but uneconomic uses

Fair Use Statute

17 USC 107Uses Such As…Four Factor Fair Use Test

Character of the useNature of the material usedAmount and importance of part usedEffect on market for permission/original

Character of the Use

Favoring Fair UseOne of the listed usesNonprofit educationalRestricted accessTransformativeParody

Favoring Permission

Commercial use (profit)EntertainmentBad-faith

Nature of Material Used

Favoring Fair UsePublishedFactualNonfiction

Favoring Permission

UnpublishedHighly creative workFiction

Amount Used

Favoring Fair UseSmall amountsNot the heart of the workAppropriate in light of purpose

Favoring Permission

Large amountsHeart of the work

Effect on Market

Favoring Fair UseOwning a copyFew copies madeFirst 3 factors favor fair useNo ready market for permissionOut of printOwner unidentifiable

Favoring Permission

Takes away salesEasy licensing mechanismMany copies madeWide distribution of copiesRepeated useFirst 3 factors favor permission

Guidelines

ContextualCoursepacks; reserves; distance learning; image archives; multimedia; off-air taping, etc.

Not the Limit of Fair UseConvenient, but More Limited than StatuteUse Both Statutory Test and GuidelinesIf a Use is Not Fair, Pare it Down, Substitute, or Get Permission

Image Archive Guidelines

Determine digital availabilityIf available at reasonable price, acquireIf not available, digitize

Limit accessStudents registered for classTerminate access at end of semester

Revisit availability periodically

TEACH Act Overview

Right to display and perform works in the classroom during a lecture

Brick-and-mortar classroomsVirtual classrooms

Very specific, limited and conditioned

In the Classroom – 110(1)

Brick-and-mortar classroomsNonprofit educational institutionsDisplays or performances of any work in any medium

AudiovisualsLegal copy

For Distant Students 110(2)

Accredited nonprofits & governmentSmaller partsTechnological limitsInstitutional requirementsExclusions for supplemental materialsETC. ETC. ETC. ETC. ETC.Why the different standard?

Performance Rights and Fair Use

TEACH Act Permits Some CopyingFair Use is Best Source of Authority for Reproduction Beyond Section 110

Be sensitive to the availability of effective markets for permission and licenses to use digital materials

An Online Images Project

Digitizing a CollectionSharing it with others

Variety of Sources Copystand DonatedPurchased

Status of Copyright Protection Varies

Divide and Conquer

Not All Slides are ProtectedBridgeman v. Corel

Slides Created by FacultyThe implied license to use

Copystand PhotographyPurchased/licensed Slides

Legal Analysis

Implied LicensesFair Use: Fourth Factor

Where there is an effective, functioning permissions market or market for digital slides, use itWhere there is no functional market, digitize the slides and use in accordance with standard fair use restrictions

VRA Copy Photography Computator

Special Circumstances

Someone Says “No”Sharing Your Archive with Other Institutions

Additional Requests

Student Use of Digital Images for Class AssignmentsFaculty Use of Images for Professional PresentationsPersonal Use by Faculty and Students

The TEACH Act

Theoretically Covers Use of Images in Virtual Classrooms

Twenty-two prerequisitesAmong them: no recipient copying

No digitizing where a digital alternative useful for online instruction is available

Risk Reduction: Permission

Centralized Support for Obtaining PermissionCoordination between Faculty Members, Permission Facility and Digital Library

Licensed works do not require permission

For More Information

The Copyright Crash Course www.utsystem.edu/ogc/

intellectualproperty/cprtindx.htmOnline Tutorial www.lib.utsystem.edu/copyright

Summary

Copyright’s Purpose is to Improve Society by Advancing Knowledge

The law achieves its purpose by balancing interestsOwner’s rights and users rights are both vital to achieving the law’s purpose

Overview: Evaluating Policies and Guidelines

Why Bother with Policy?VRA Guidelines: The Gold Standard

Understand them completelyBe able to explain why they are a correct interpretation of the law

Use them to evaluate others’ policies

Confu or Other GuidelinesModifying Existing Policy

Why Bother?

Strict Liability StandardPenalties

$150,000 per willful infringement$750 to $30,000 per innocent infringement

The Good Faith Fair Use Defense

17 USC 504(c)Permits Court to Remit Damages

Infringer believed and had reasonable basis for believing that use was fair

Following Institutional Policy is Excellent Protection

Vicarious Liability

Agency: EmployeesWithin general scope of authoritySubstantially within time/spaceServes University interests

Vicarious: Independent ContractorsBenefit and control

Contributory: StudentsKnowledge and participation

Institutional Defenses

Policy Implements Educational StrategyOrganizational Support for Permissioning Archive Further Limits Liability

VRA Guidelines

Defining Fair Use of Images for Educational Purposes

Address the issues in a straightforward, unambiguous wayDo not address logistics; can be modified to add particulars

Other Guidelines

Confu GuidelinesUT System Rules of Thumb

Modifying an Existing Policy

If You Can’t Start FreshUnderstanding what your current policy does and how it does itAvoiding creating ambiguity and contradiction

Know what must be eliminatedKnow what you have to add to accomplish your objective

Evaluating Sample Policies

University of PennsylvaniaUniversity of WashingtonUniversity of Texas SystemArizona State UniversityUniversity of Virginia

Overview: Drafting Policy & Guidelines

Adopting the VRA Guidelines

Typical Modifications

Adopting the Confu GuidelinesTypical Modifications

UT System Rules of Thumb

Modifying an Existing Policy

Overview : Making Something Happen Back Home

Whose Support Do You Need?Who has Authority to “Bless” Your Policy?

If it’s you, post it!If it’s not you, begin the approval process

Mustering Support – Building Consensus

Be Able to Articulate a Rationale for your Policy FrameworkWho Will Be AffectedWho Represents Administration Interests

Identifying Who Must Approve Your Draft

Examine Rules and Procedures for Information about the Approval ProcessInquire Among Department Heads, College Deans and Sympathetic Administrators

The Approval Process

If You Must Hand-off ApprovalExplain your position carefully and fullyFollow-up frequently about progress

Questions?

Time For Your QuestionsAbout approvalOn subjects from our earlier sessions