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Can you? Should you?

Carol Simpson, JD, Ed.D.

University of North Texas (mod. serv.)NOTE: This presentation uses copyrighted material under the fair use exemptions

of US. Copyright law. Further use is prohibited.

When you think copyright,

When you think copyright, do you think…. Balance?

The fair use of a copyrighted work …

… is not an infringement of copyright.

17 U.S.C. § 107

The fair use of a copyrighted work …

… is not an infringement of copyright.

17 U.S.C. § 107

But what is fair?

And if you don’t get all the rules right, what can happen?

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But what is fair?

And if you don’t get all the rules right, what can happen?

What is the purpose of copyright, anyway?

“To promote the Progress of Science and useful arts…”

“[S]ecuring for limited times…”

“…to Authors and Inventors…” “…the EXCLUSIVE right…”

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“…to their…Writings and Discoveries”

But to promote the Progress of Science and useful Arts…

wouldn’t you have to know and use some of the previous Science and Art?

And we call that …

FAIR USE

Fair use is how we borrow parts of what others have done, so that we can make something newer, better.

And there’s the rub.

Who could possibly object to using someone’s creation to advance Science and Useful Arts?

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Just about anyone who owns rights in previously created material.

So why are the owners of intellectual property so frightened of someone who wishes to expand on their creations?

And what have content owners done to help alleviate their fears?

How has the user community responded to the content owners?

Or even like this….

But what did they really want?BALANCE

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Fair use is a tug-of-war Ideally, each side has equal power

But through greed, influence, and judicial decisions, things have changed.The big guy has an advantage.

Things are out of balance

And the user is the one who loses

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When users try to press the fair use envelope, content owners

push back

When users try to press the fair use envelope, content owners

push back

When users try to press the fair use envelope, content owners

push back

When users try to press the fair use envelope, content owners

push back

Some folks aren’t too distressed Which can lead to this:And this:

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Fair use loses because the

user community must pay to

defend against arguably fair

uses

Legal help is not inexpensive, and most people who

claim fair use cannot afford to

defend a lawsuit.

Many just give in.

Content owners have staff attorneys with nothing better to do than continue the

tug of war

What happens to a user who loses?It isn’t pretty.

What options does the user community have?

• Copyleft• GNU General Public License• Open Source Initiative• Creative Commons license options

Copyleft

• Gives rights to:– Reproduce– Adapt– Distribute

• As long as all resulting copies have same licensing scheme.

• ≠ Public Domain

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GNU General Public License

• Software• May adapt and

distribute• Derivative works must

be made available under same license

• Endorsed by Free Software Foundation

Open Source Initiative

• Software• Sprang from

Netscape’s release of source code.

• Software distributed in source form which can be freely modified and redistributed

• ≠ no-cost software.

Creative Commons• Founded by Lawrence

Lessig – Stanford Law• Multiple licensing

channels, from public domain to commercial restrictions

• Mostly used for non-software

• International licenses in development

• Easily searched by many engines

Creative Commons Licenses

• Attribution (by)• Noncommercial (nc)• No Derivative works

(nd)• Sharealike (sa)

Public Domain

• Applies also to trademarks• Eroding as a source

– CTEA– Treaty obligations– Pressure from indigenous peoples

• Confusion over what is actually public domain (orphan works and in/out of print)

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Orphan works

• Works still protected by copyright

• Copyright owner unknown or unavailable

• Pressed by the WTO and WIPO

Outside influences

• Berne Convention for the Protection of Literary and Artistic Works (1886)

• World Trade Organization• World Intellectual Property Organization• Uruguay Round Agreements Act• Trade Related Aspects of Intellectual

Property (TRIPS)

Berne three-step test limits fair use

Members shall confine limitations and exceptions to exclusive rights tocertain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

Proprietary info

• More limitations– More licenses, fewer sales

• More watchdogs– Internet spiders make detection easy

• More insistence on licensing– Even the Supreme Court acknowledged ease

of licensing in evaluating a case of fair use

Legislative developments

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Chicago Manual of Style"The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly. Furthermore, excessive caution can be dangerous if the copyright owner proves uncooperative. Far from establishing good faith and protecting the author from suit or unreasonable demands, a permission request may have just the opposite effect. The act of seeking permission establishes that the author feels permission is needed, and the tacit admission may be damaging to the author's cause."

An issue of balance

• Apply fair use at every opportunity

• Fairly analyze your actual use

• Ask permission or pay royalties when necessary

• Use open source materials to encourage that path

STOP

•Hiding from content owners

•Licensing materials within a legitimate fair use

START maintaining the balance

Hold your own in the tug of warEven if they gang up on youIt takes active,

involved users to keep the doctrine of

fair use alive and kicking

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And vigilant users to prevent invalid

claims of protection

You provide the balance

Thanks to these folks for their FlickrCreative Commons images.

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Thanks also to these folks for their FlickrCreative Commons images.

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Questions?

Comments?