Copyright, Fair Use, and Creative CommonsA Crash Course for Administrators

What is the purpose of What is the purpose of

Copyright

• "Copyright" is the right to control some uses of a creative work, be it a book, movie, song, or web design. – While the specifics vary from country to country, the

essence is the same: copyright holders, whether authors, their heirs, or their publishers, have some rights to control how their work is used.

To promote creativity, innovation and the spread of knowledge

Article 1 Section 8U.S. Constitution

OWNERS USERS

Copyright Law Balances Rights of Owners and Users

Copyright Infringement

• "Copyright infringement" means exercising one of the copyright holder's exclusive rights without permission.

• These exclusive rights include copying (or "reproducing") the work, distributing it, publicly performing or displaying it, and making "derivative works" such as abridgments or translations. – For instance, making a thousand copies of a video and selling

them would almost certainly infringe the copyright holder's rights to reproduce and distribute the work.

– Under certain circumstances, people who contribute to or are responsible for the infringements may also be held liable — this is called secondary or derivative liability.

Copyright Infringement-Cease & Desist

• Cease and desist letters can be used to assert any sort of legal right, and are often used for copyright, trademark, and related "Intellectual Property" claims.

• People may think they have been sued when they receive a cease and desist letter. This isn't the case. The letter may threaten a lawsuit, but it is not the same as a complaint that is filed when an actual lawsuit begins.

Digital Millennium Copyright Act

• A variation on the cease and desist letter is the "Section 512 takedown notice", named after Section 512 of the Digital Millennium Copyright Act (the "DMCA").

• A § 512 takedown notice is sent, not directly to an individual, but to her Internet service provider (ISP), which is defined broadly in the DMCA to include search engines, website hosting services, caching services, and companies that simply provide access to the Internet. – In some instances, the organization or individual targeted by the

§ 512 takedown notice may also receive a copy, either from the ISP or directly from the sender.

Why Does It Matter?

• Model ethical behavior

• Lawsuits do happen….http://carolsimpson.com/copyright/copyright_action_data_results.htm

--Section 107Copyright Act of 1976

The Doctrine of Fair Use

Fair Use as Explained by the U.S. Copyright

Office

Fair Use Factors

• FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE – This factor considers whether the use helps fulfill the intention of

copyright law to stimulate creativity for the enrichment of the general public.

– The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new.

– The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair.

– Further, the more commercial defendant's use, the less likely such use will be fair.

Fair Use Factors

• FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK – The more creative, and less purely factual, the copyrighted work, the

stronger its protection. – In order to prevent the private ownership of work that rightfully belongs

in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection.

– Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair.

– While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Fair Use Factors

• FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED– In general, the less of the copyrighted work that is used, the more likely

the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair.

Fair Use Factors

• FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK – This factor is generally held to be the most important factor. – This factor considers the effect that the defendant's use has on the

copyright owner's ability to exploit his or her original work. – The court will consider whether the use is a direct market substitute for

the original work. The court may also consider whether harm to a potential market exists.

– The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses.

The Result

Copyright Confusion

See no Evil Close the Door Hyper-Comply

How We Cope

Educational Use Guidelines Try to Help

• Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions

• Guidelines for the Educational Use of Music

• Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes

• Fair Use Guidelines for Educational Multimedia

The Result…

Virginia Beach School Board Policy & Regulation

• Policy 6-63 Copyrighted Materials

• Regulation 6-63.1 General Information

• Regulation 6-63.2 Print Materials

• Regulation 6-63.3 Computer Programs & Software

• Regulation 6-63.4 Nonprint Media

• Regulation 6-64.1 Acceptable Use of the Division Computer System

But there is a PROBLEM……

• Educational use guidelines are confusing!

• Educational use guidelines can be restrictive!

• Educational use guidelines are not the law!

The Code of Best Practices in Fair Use for Media Literacy Education

• To educate educators themselves about how fair use applies to their work

• To persuade gatekeepers, including school leaders, librarians, and publishers, to accept well-founded assertions of fair use

• To promote revisions to school policies regarding the use of copyrighted materials that are used in education

• To discourage copyright owners from threatening or bringing lawsuits

• In the unlikely event that such suits were brought, to provide the defendant with a basis on which to show that her or his uses were both objectively reasonable and undertaken in good faith.

Organizations Supporting the Code of Best Practices

Action Coalition for Media Education (ACME)

National Association for Media Literacy Education (NAMLE)

National Council of Teachers Of English (NCTE)

Visual Studies DivisionInternational Communication

Association (ICA)

Association of College and Research Libraries (ACRL)

Transformative Use Is Fair Use

• In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:– Did the unlicensed use “transform” the material taken from the

copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

– Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Page 6, Code of Best Practices in Fair Use for Media Literacy Education

What does the Code of Best Practices say?

• This code of best practices identifies five sets of current practices in the use of copyrighted materials in media literacy education to which the doctrine of fair use clearly applies.– Employing copyrighted material in media literacy lessons– Employing copyrighted material in preparing curriculum

materials– Sharing media literacy curriculum materials– Student use of copyrighted materials in their own academic and

creative work– Developing audiences for student work

Page 10-14, Code of Best Practices in Fair Use for Media Literacy Education

The Principles in the Code of Best Practices

• Apply to all forms of media.• Apply in institutional settings and to non-school-

based programs.• Concern the unlicensed fair use of copyrighted

materials for education, not the way those materials were acquired.

• Are all subject to a “rule of proportionality.”

Page 9-10, Code of Best Practices in Fair Use for Media Literacy Education

Fair Use Checklist

Fair Use Reasoning Process

Let’s Practice

• Scenario 1: Ms. Nickie and the Video• Scenario 2: Kathy and the Interactive Whiteboard• Scenario 3: Mr. Jones and YouTube• Scenario 4: Ms. DaVinci and the Wiki• Scenario 5: Tony’s Podcasts• Scenario 6: Lucy’s History Day Project• Scenario 7: Johnson Middle School Video Yearbook

Public Domain

• Works are in the public domain when their copyright term has expired; they are then freely available for use by anybody.

• Works may be dedicated to the public domain by their copyright-holder; for instance, the U.S. government has determined that all of its works are in the public domain.

Copyright & Public Domain

• The Copyright Clause of the Constitution authorizes Congress to create copyright protection for "limited times". – In the U.S. today, a work stays under copyright until 70 years

after the author's death (sometimes called "life + 70"), or, in the case of copyrights held by corporations, for 95 years.

• Any work published before 1923 is in the public domain under U.S. copyright law. Works published since 1923 should be examined to see if they are still copyrighted.

Creative Commons

– What is Creative Commons• An organization offering easy-to-use copyright licenses that

encourage distribution of works, while preserving other copyright holder rights.

• It was founded in the belief that current copyright law in the U.S. is too restrictive and thus harms creative expression and the free exchange of information and ideas.

• Offering your work under a Creative Commons license does not mean giving up your copyright.

• It means offering some of your rights to any member of the public but only on certain conditions.

Creative Commons License Conditions

• Attribution. – You let others copy, distribute, display, and perform

your copyrighted work — and derivative works based upon it — but only if they give credit the way you request. • Example: Jane publishes her photograph with an Attribution

license, because she wants the world to use her pictures provided they give her credit. Bob finds her photograph online and wants to display it on the front page of his website. Bob puts Jane’s picture on his site, and clearly indicates Jane’s authorship.

Creative Commons License Conditions

• Noncommercial. – You let others copy, distribute, display, and perform

your work — and derivative works based upon it — but for noncommercial purposes only • Example: Gus publishes his photograph on his website with

a Noncommercial license. Camille prints Gus’ photograph. Camille is not allowed to sell the print photograph without Gus’s permission.

Creative Commons License Conditions

• No Derivative Works. – You let others copy, distribute, display, and perform

only verbatim copies of your work, not derivative works based upon it.

• Example: Sara licenses a recording of her song with a No Derivative Works license. Joe would like to cut Sara’s track and mix it with his own to produce an entirely new song. Joe cannot do this

without Sara’s permission (unless his song amounts to fair use).

Creative Commons License Conditions

• Share Alike. – You allow others to distribute derivative works only

under a license identical to the license that governs your work. • Example: Gus’s online photo is licensed under the

Noncommercial and Share Alike terms. Camille is an amateur collage artist, and she takes Gus’s photo and puts it into one of her collages. This Share Alike language requires Camille to make her collage available on a Noncommercial plus Share Alike license. It makes her offer her work back to the world on the same terms Gus gave her.

http://creativecommons.org/about/licenses

Let’s Try

• Go to http://www.creativecommons.org • Click on Find• Type in “Animal Adaptations”

• Click on License• Create a CC License

Other Copyright Friendly Portals

• Flickr –can use advanced search to find images under a creative commons license http://www.flickr.com/search/advanced/

• SlideShare—can find PP presentations, Word docs, and PDFs that others have chosen to share http://www.slideshare.net/

Other resources that are copyright friendly can be found at http://copyrightfriendly.wikispaces.com/

Resources Used in Presentation

• Creative Commons. Web. 21 Jan 2010. <http://creativecommons.org/>. • Havidson, Hall. "Copyright and Fair Use Guidelines for Teachers." Copyright Resources. 10 Jan 2010.

Technology & Learning, Web. 21 Jan 2010. • Simpson, Carol. Copyright for Administrators. Columbus, Ohio: Linworth Publishing, 2008. Print. • "Fair Use." U.S. Copyright Office. May 2009. U.S. Copyright Office, Web. 8 Jan 2010.• "Copyrighted Materials." Policies and Regulations. 13 Jul 1993. Virginia Beach City Public Schools, Web. 19 Jan

2010. • "Acceptable Use Policy." Policies and Regulations. 19 Aug 2008. Virginia Beach City Public Schools, Web. 19

Jan 2010. • "Circular 21: Reproduction of Copyrighted Works by Educators and Librarians." Copyright. Nov 2009. U.S.

Copyright Office, Web. 10 Jan 2010. • "Code of Best Practices in Fair Use for Media Literacy Education." 11 Nov 2008. Center for Social Media, Web.

10 Jan 2010. • Dorman, Jennifer. "Copyright and the Evolution of Creative Commons." 2007. Slide Share, Web. 21 Jan 2010. • Hobbs, Renee. "Yes, You Can Use Copyrighted Materials." 2009. Slide Share, Web. 21 Jan 2010.• "Checklist for Fair Use." 10 Mar 2003. Copyright Management Center, Web. 22 Jan 2010.

<www2.selu.edu/documents/policies/checklist_fair_use.pdf>.• Hokanson, Kristin, and Renee Hobbs. "Tool for Supporting the Fair Use Reasoning Process." 2009. Temple

Media Education Lab, Web. 20 Jan 2010. <http://copyrightconfusion.wikispaces.com/file/view/Tool+for+reasoning+Fair+Use.pdf>.

• Center for Social Media. Web. 22 Jan 2010. <http://www.centerforsocialmedia.org/>.