Post on 20-Jan-2016
"Fair Use" of Copyrighted Material in a
Graduate Medical Education
Curriculum: Pushing the
Electronic Envelope
Philip J. Boyer, M.D., Ph.D.
Georgia K. Harper, J.D.
9/2007
Introduction
Medical knowledge base: ever-expanding in breadth and depth
In that context, it is challenging to present a coherent and consistent "curriculum" replete with a study guide and ready access to relevant resources to meet the needs of medical students / residents / fellows in training Daily work -- autopsies and surgical pathology sign-
out Elective rotations Board preparation
While text books remain a cornerstone of graduate medical education, access to other materials is important to providing a focused yet comprehensive “curriculum” to trainees
Objectives / Methods and Materials
Objectives: Evaluation of copyright and fair use of educational
materials within the confines of graduate medical education Definition of opportunities and limitations in the use of
copyrighted materials NOT Addressed
Medical student teaching materials Software
Methods and Materials: Literature and Web-based resources were queried and
evaluated when available Virtually no reference to copyright and fair use was
identified in the PubMed archive related to GME Consultation was undertaken with education and legal staff
at the University of Texas and the University of Colorado Georgia Harper, J.D. – University of Texas at Austin
Definitions : US Copyright Code
• Subject Matter of Copyright: Copyright: 17 US Code 102(a)• “Copyright protection subsists . . . in original works of authorship fixed in
any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
(http://straylight.law.cornell.edu/uscode/html/uscode17)
Definitions : US Copyright Code
• Subject Matter of Copyright: Copyright: 17 US Code 102(a)• “Copyright protection subsists . . . in original works of authorship fixed in
any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
• Ownership of Copyright: Copyright: 17 US Code 201(a)• “Initial Ownership. Copyright in a work protected under this title vests initially in the
author or authors of the work.”
(http://straylight.law.cornell.edu/uscode/html/uscode17)
Definitions: US Copyright Code
• Subject Matter of Copyright: Copyright: 17 US Code 102(a)• “Copyright protection subsists . . . in original works of authorship fixed in
any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
• Ownership of Copyright: Copyright: 17 US Code 201(a)• “Initial Ownership. Copyright in a work protected under this title vests initially in the
author or authors of the work.”
• Limitations on Exclusive Rights: Fair Use: 17 US Code 107• “. . the fair use of a copyrighted work, including such use by reproduction
in copies . . . or by any other means . . . , for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright .”
(http://straylight.law.cornell.edu/uscode/html/uscode17)
Four Stack Copyright Analysis
Material In Question Examples How to Proceed
1. Materials authored by participating
faculty members
- Powerpoint files from talks- Word documents from articles- PDFs of published articles- Tables from text books
- Free to use- Provide acknowledgment / citation as appropriate
2. Materials already licensed - PDF from licensed journal- Diagram from textbook- Chapter from textbook- Materials from licenced Web rescources
- Free to use- Provide acknowledgment / citation
3. Materials available from the Web for free - Implied license - Expressed license
- Text- Images- Other content (whole slides)
- Free to use- Provide acknowledgment / citation
4. Materials for which there is no license and not freely available off of Web site
- Article from journal not licensed by University- Charts/tables of uncertain origin
- 4 Factor Fair Use Test- Ask permission: Author / publisher- Can use while permission is being
sought- Provide acknowledgment / citation
Author’s Own Work
Author’s Own Work
Author’s Own Work
Four Stack Copyright Analysis
Material In Question Examples How to Proceed
1. Materials authored by participating faculty members
- Powerpoint files from talks- Word documents from articles- PDFs of published articles- Tables from text books
- Free to use- Provide acknowledgment / citation
2. Materials already licensed - PDF from licensed journal- Diagram from textbook- Chapter from textbook- Materials from licenced Web rescources
- Free to use- Provide acknowledgment / citation
3. Materials available from the Web for free - Implied license - Expressed license
- Text- Images- Other content (whole slides)
- Free to use- Provide acknowledgment / citation
4. Materials for which there is no license and not freely available off of Web site
- Article from journal not licensed by University- Charts/tables of uncertain origin
- 4 Factor Fair Use Test - Ask permission: Author / publisher- Can use while permission is being
sought- Provide acknowledgment / citation
The Fine Print: Fair Use and Licensing
License Rights Libraries negotiate for access to journals for use by patrons
"The library has paid to provide every single student and faculty member on the campus access to and use of the journal content"
With electronic links -- “students and faculty members have an easier time finding resources to which they already have rights“
Similar reasoning is applied regarding implied licensing in the purchase of and use of content from of a textbook – hard copy or electronic
A combination of fair use and implied license (e.g. in the case of the articles available on publisher's Web sites) will cover educational activities
(Georgia Harper, JD, Crash Course in Copyright, University of Texas,
http://www.utsystem.edu/OGC/INTELLECTUALPROPERTY/cprtindx.htm)
Licensed Work: And Parts (with attribution)
Licensed Works: Electronic Textbooks
Author’s Own Work
Author’s Own Work
Diagrams
Supplement: Licensed Work
(Dalkilic I. Current Opinion Genetics and development. 13:231, 2003.)
Licensed Work: Parts (with attribution)
Licensed Work: Parts (with attribution)
Braak & BraakStage:
Neurofibrillary Tangles
CERAD NPDiagnosis:
Neuritic Plaques
Four Stack Copyright Analysis
Material In Question Examples How to Proceed
1. Materials authored by participating faculty members
- Powerpoint files from talks- Word documents from articles- PDFs of published articles- Tables from text books
- Free to use- Provide acknowledgment / citation
2. Materials already licensed - PDF from licensed journal- Diagram from textbook- Chapter from textbook- Materials from licenced Web rescources
- Free to use- Provide acknowledgment / citation
3. Materials available from the Web for free - Implied license - Expressed license
- Text- Images- Other content (whole slides)
- Free to use- Provide acknowledgment / citation
4. Materials for which there is no license and not freely available off of Web site
- Article from journal not licensed by University- Charts/tables of uncertain origin
- 4 Factor Fair Use Test- Ask permission: Author / publisher- Can use while permission is being
sought- Provide acknowledgment / citation
Current: Web Content
http://www.endotext.com/neuroendo/neuroendo3/neuroendoframe3.htm
Current: Web Content
(http://www.neuro.wustl.edu/neuromuscular/)
Current: Whole Slide Imaging
http://www.path.uiowa.edu/virtualslidebox/
Four Stack Copyright Analysis
Material In Question Examples How to Proceed
1. Materials authored by participating faculty members
- Powerpoint files from talks- Word documents from articles- PDFs of published articles- Tables from text books
- Free to use- Provide acknowledgment / citation
2. Materials already licensed - PDF from licensed journal- Diagram from textbook- Chapter from textbook- Materials from licenced Web rescources
- Free to use- Provide acknowledgment / citation
3. Materials available from the Web for free - Implied license - Expressed license
- Text- Images- Other content (whole slides)
- Free to use- Provide acknowledgment / citation
4. Materials for which there is no license and not freely available off of Web site
- Article from journal not licensed by University- Charts/tables of uncertain origin
- 4 Factor Fair Use Test- Ask permission: Author / publisher- Can use while permission is being
sought- Provide acknowledgment / citation
Copies of Useful Tables
No License / Not Freely Available (example)
Four Factor Fair Use Test - 17 US Code 107(1-4)
Test Fair Use May Be Fair Use Get Permission or License
1. Character of Use - Non-profit- Educational- Criticism- Commentary- “Transformative” use
- Mixed (e.g. transformative and commercial)
- Commercial
2. Nature of Work - Factual- Published
- Mixture of fact and imaginative
- Imaginative- Unpublished
3. Amount of work used
- Small Amount - Large amount
4. Effect on market for the original work if use is widespread
- First 3 factors tipping toward fair use- No lost sales- Promotes larger work- Original is out of print or otherwise unavailable- No ready resource to ask permission- Copyright owner unidentifiable
- Mix – first 3 factors in favor of fair use; but payment mechanism is well established
- Competes with or reduces sales of original work- Avoids payment for permission (royalties) in an established permissions
market
“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include”
Diagrams of Sometimes Uncertain Origin
Uncertain Origin
Institutional Approach: Risk Tolerance
Risk Tolerance
Tolerant Adverse
Need toSeek
Permission
Rarely
Always
Conclusions An ever-expanding wealth of reference materials is available in an electronic
format Compilations can be made accessible to meet defined educational goals
Conclusions An ever-expanding wealth of reference materials is available in an electronic
format Compilations can be made accessible to meet defined educational goals
AND Comply with fair use and licensing restrictions
Conclusions An ever-expanding wealth of reference materials is available in an electronic
format Compilations can be made accessible to meet defined educational goals
AND Comply with fair use and licensing restrictions
Four stack copyright analysis and four factor fair use tests provide a mechanism to assess materials so that Useful licensed materials can be made available to “students”
Usually providing a small part of a bigger work Key Issue: Access limited to define user group by IntrAnet login Availability is for limited time (e.g. during specific rotations or during
residency)
Conclusions An ever-expanding wealth of reference materials is available in an electronic
format Compilations can be made accessible to meet defined educational goals
AND Comply with fair use and licensing restrictions
Four stack copyright analysis and four factor fair use tests provide a mechanism to assess materials so that Useful licensed materials can be made available to “students”
Usually providing a small part of a bigger work Key Issue: Access limited to define user group by IntrAnet login Availability is for limited time (e.g. during specific rotations or during
residency)AND
Authors rights are respected and contributions acknowledged
Conclusions An ever-expanding wealth of reference materials is available in an electronic format
Compilations can be made accessible to meet defined educational goals AND
Comply with fair use and licensing restrictions
Four stack copyright analysis and four factor fair use tests provide a mechanism to assess materials so that Useful licensed materials can be made available to “students”
Usually providing a small part of a bigger work Key Issue: Access limited to define user group by IntrAnet login Availability is for limited time (e.g. during specific rotations or during
residency)AND
Authors rights are respected and contributions acknowledged
Pragmatic and optimal to give credit where credit is due AND cite Copyright law Include author, source, and other attribution material whenever known Copyright Notice: Limitations on Exclusive Rights: Reproduction by Libraries and
Archives 17 US Code 108(f)(1) - no liability for copyright infringement
Conclusions An ever-expanding wealth of reference materials is available in an electronic format
Compilations can be made accessible to meet defined educational goals AND
Comply with fair use and licensing restrictions
Four stack copyright analysis and four factor fair use tests provide a mechanism to assess materials so that Useful licensed materials can be made available to “students”
Usually providing a small part of a bigger work Key Issue: Access limited to define user group by IntrAnet login Availability is for limited time (e.g. during specific rotations or during residency)
AND Authors rights are respected and contributions acknowledged
Pragmatic and optimal to give credit where credit is due AND cite Copyright law Include author, source, and other attribution material whenever known Copyright Notice: Limitations on Exclusive Rights: Reproduction by Libraries and Archives 17 US Code 108(f)
(1) - no liability for copyright infringement
Pragmatic to interpret rules conservatively and seek permission if “fair use” rights are hazy and author / publisher is known (and alive) and easily queried Can use materials while seeking permission Institutions would be well served to have established individuals who seek permission in a uniform
and documented manner
Collaborators
Georgia K. Harper, J.D.
University of Texas At Austin LibraryAustin, TX
University of Colorado, Denver, CO
B.K. DeMasters, M.D.
The Fine Print: Fair Use and Licensing
Copyright and Fair Use: Limited information is
available about “copyright” and "fair use“ of copyrighted materials in the academic settings
Interpretation challenging Is an IntrAnet site
"Coursepack" "Distance learning" "Electronic Reserve"
(Georgia Harper, JD, Crash Course in Copyright, University of Texas,
http://www.utsystem.edu/OGC/INTELLECTUALPROPERTY/cprtindx.htm)
Methods and Materials
Literature and Web-based resources were reviewed. Consultation was undertaken with education and legal staff at the University of Texas and the University of Colorado.
Access: To meet “fair use,” licensing, and “intellectual property”
concerns, materials are available only to individuals logged into the UTSW IntrAnet
Introduction
Medical knowledge base: ever-expanding in breadth and depth In that context, it is challenging to present a coherent and
consistent "curriculum" replete with a study guide and ready access to relevant resources to meet the needs of medical students / residents / fellows in training Daily work -- autopsies and surgical pathology sign-out Elective rotations Board preparation
While text books remain a cornerstone of graduate medical education, access to other materials is important to providing a focused yet comprehensive “curriculum” to trainees: Articles Diagrams and tables Electronic textbooks
An ever-expanding wealth of digital and digitizable materials is available Faculty identification and vetting of key / critical materials
provides a uniform experience for trainees
Licensing Royalties Acknowledgment Permission: Informal or formal permission
Licensed Work
Hard Copies of Old, “Classic” References Copied (suboptimally) and Passed Out
PubMed: Lots of References, Some Available as PDFs, Some Not
Licensed Work
Hard Copies of Old, “Classic” References Copied (suboptimally) and Passed Out
PubMed: Lots of References, Some Available as PDFs, Some Not
Key Reference NOT Available as PDF
Licensed Work: Parts (with attribution)
Interests / Goals
• Assess how IntrAnet tools can help meet newly-implemented ACGME training criteria
• Cover objectives / content published by • NBME• ABP (American Board of
Pathology)• ADASP / PRODS (Association
of Directors of Anatomic & Surgical Pathology, Program Directors Section, Association of Pathology Chairs)
• GRIPE (Group for Research in Pathology Education)
• Other groups• Evaluate legal use of
copyrighted material• “Fair Use”
*
• Develop mechanism to provide easy access to a wide range of teaching materials within a subspecialty area• Audience: medical
students, residents, and fellows who rotate through a subspecialty pathology area
• Incorporate “curriculum” wrapper around content• Objectives• Pre-test• Content• References for further
study• Vetted by
subspecialty area faculty
• Post-test
Definitions
• Subject Matter of Copyright: Copyright: 17 US Code 102(a)• “Copyright protection subsists . . . in original works of authorship fixed in
any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
• Ownership of Copyright: Copyright: 17 US Code 201(a)• “Initial Ownership. Copyright in a work protected under this title vests initially in the
author or authors of the work.”
• Limitations on Exclusive Rights: Fair Use: 17 US Code 107• “. . the fair use of a copyrighted work, including such use by reproduction
in copies . . . or by any other means . . . , for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright .”
• Limitations on Exclusive Rights: Reproduction: 17 US Code 108 (f)(1)• “Nothing in this section . . . shall be construed to impose liability for copyright
infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law.”(http://straylight.law.cornell.edu/uscode/html/uscode17)
Simplified Approach
- Someone “owns” academic work covered by “Copyright”- Sometimes you are the owner
- “Fair use” lets you use Copyrighted materials - Within defined academic boundaries
- Sometimes you have to ask for permission or pay licensing fees to use copyrighted materials
(Georgia Harper, JD, Crash Course in Copyright, University of Texas,
http://www.utsystem.edu/OGC/INTELLECTUALPROPERTY/cprtindx.htm)