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Peter G. Anderson, DVM, PhDProfessor of Pathology
Director of Pathology Undergraduate EducationUniversity of Alabama at Birmingham
Copyright and Fair Use for
Educators in the Digital Era
Disclaimer:
I am NOT a lawyer . . . I am an educator!
Don’t use your last quarter to call me for bail money if you get thrown in jail!
Outline
Copyright issues for educators - general
Copyright in the digital age Fair Use Digital Millennium Copyright Act TEACH Act
Ownership issues Copyright case studies
US Constitution - 1787
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries; . . . “
“The primary objective of copyright is not to
reward the labor of authors, but to promote the
Progress of Science and useful Arts. To this
end, copyright assures authors the right to
their original expression, but encourages
others to build freely upon the ideas and
information conveyed by a work.”
-- Justice Sandra Day O'Connor (Feist Publications, Inc.versus Rural Telephone Service Co.,1991)
Copyright - Title 17 of the US Code
The court can award up to $100,000 for each separate act of willful infringement.
Willful infringement means that you knew you were infringing and you did it anyway.
Ignorance of the law is no excuse. If you don't know that you are infringing, you still will be liable for damages - only the amount of the award will be affected.
Then there are attorneys' fees.....
Individual liability for infringement
From: University of Texas “Crash Course in Copyright”
Sec. 107. - Limitations on exclusive rights: Fair use (1976)
. . . the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Fair Use – originally enacted in 1909
From: Legal Information Institute
The law offers four factors to evaluate and balance in any determination of fair use:
The purpose of the use; The nature of the work; The amount of the work copied; The effect of the copying on the potential
market for, or the value of, the original work.
From: Copyright Essentials for Librarians and Educators,by Kenneth D. Crews, 2000
Fair Use - Guidelines
Fair Use in the Digital Age
The meaning of Fair Use becomes much more rigorous when digitized materials are uploaded to Websites and made globally accessible, whereby the content may be downloaded, altered, and further transmitted by others anywhere in the world.
Conference on Fair Use – 1995 to 1998
(CONFU)
Digital Millennium Copyright Act – 1998
(DMCA)
Fair Use in the Digital Age
TEACH Act
Provides educators with a separate set of rights in addition to Fair Use, to display and perform others' works. These rights apply to any work, regardless of the medium.
From: Univ. Texas Copyright Crash Course
TEACH Act
Objective: strike a balance between protecting copyrighted works, while permitting educators to use those materials in distance education.
If educators remain within the boundaries of the law, they may use certain copyrighted works without permission from, or payment of royalties to, the copyright owner - and without copyright infringement.
TEACH Act - Duties of Institution
Accredited nonprofit institution Institutional copyright policy in place Provide copyright information to “faculty
and relevant staff members.” Notice to students regarding copyright Access by enrolled students only
From: Kenneth D. Crews for the American Library Association
TEACH Act – Benefits to faculty
Primary benefit of TEACH act is that it redefines the “digital classroom” to include Web based and asynchronous instruction rather than limiting teaching to the paradigm of closed-circuit TV based distance education.
TEACH Act – Benefits to faculty
Expanded range of allowed works Permits display of nearly all types of
works Expansion of receiving locations
Distance education/Web based/asynchronous
Storage of content Short term retention (duration of course)
Digitalization of analog works Only if digital version is not available
TEACH Act - Duties of Faculty
Cannot use materials specifically developed (by someone else) for distance education without permission.
Statute mandates instructor’s participation in the planning and conduct of the distance instruction Material is an “integral part of class
session.” Material “directly related to content of
teaching session”
TEACH Act
From: Senate Report (107-31) accompanying the TEACH Act
Nothing in the TEACH Act is intended to limit or otherwise alter the scope of the Fair Use doctrine.
Distance education and digital technologies have pushed the envelope of copyright law. However, Fair Use and, if applicable, the TEACH Act provides guidelines and/or protection for academics involved in educational activities.
Fair Use in the Digital Age
Conclusions
New statutes provide some benefits but they also have some added restrictions.
Fair Use guidelines are very flexible and they tend to be ambiguous But flexible is good!!!
Conclusions
Common sense and logic will probably hold you in good
stead!
Intellectual Property Rights
Copyright protection begins the moment an original work is “fixed in a tangible medium of expression.”
The author is the de facto copyright holder unless other issues come into play.
From: NCSU Libraries “Copyright Tutorial”
No need to register and no © sign required
Intellectual Property Rights
Each University has it’s own guidelines for “ownership”. “Work for hire”
The American Association of University Professors also has a policy regarding ownership of academic works. “Academic freedom”
Faculty Ownership
“Institutions typically take the position - as a matter of academic tradition, institutional policy, or both - that a faculty member owns the copyright in textbooks, journal articles, and other scholarly works he or she writes for publication.”
Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations. Authored by representatives of the Association of American Universities, the Association of Research Libraries, the Association of American University Presses, and the Association of American Publishers 2005
Intellectual Property Rights
The best recommendation is to clarify issues in writing before you create materials that you wish to copyright protect.
Many Universities have contract templates that you can fill out prior to starting a project to obtain a ruling on copyright ownership.
Univ. Texas Course Materials Master Agreement
Indiana Univ. – Purdue Univ. Memorandum of UnderstandingAssuring Rights of Use of Instructional Materials
Fair Use Case Study
Professor Jones wants to postan article from the Journal ofBiological Chemistry on hercourse Web page . . .
. . . Is this legal?
Fair Use
Professor Jones is aware that copyright applies automatically to the article from the moment it was created. Does she need permission from the publisher to use the article, or is it fair use?
Fair Use Case Study
To determine whether it is fair use, she must consider four factors:
• the purpose of the use;• the nature of the work;• the amount used;• the effect of the use on the market for the original article.
Fair Use Guidelines - PurposeFavoring Fair Use
Teaching (including multiple copies for classroom use)
Research Scholarship Nonprofit Educational
Institution Criticism Comment Transformative use
(changes work for new utility) Restricted access
Commercial activity Profiting from the
use Entertainment Bad-faith behavior Denying credit to
original author
Opposing Fair Use
Modified from: Buttler & Crews, Indiana University, 1999
Fair Use Case Study
Purpose: educational, nonprofit institution, limiting access to enrolled students.
An educational purpose generally favors fair use, but an educational purpose alone will not make the use "fair".
For Dr. Jones . . .
Nature: This factor often is misunderstood. It asks about the "nature of thecopyrighted work," not thenature of the workyou created.
Fair Use Guidelines - Nature
Fair Use Guidelines - Nature
by: Buttler & Crews, Indiana University, 1999
Favoring Fair Use
Published work Factual or nonfiction
based Scholarship Important to favored
educational objectives
Unpublished work Highly creative
work (art, music, novels, films, plays)
Fiction
Opposing Fair Use
Fair Use Case Study
Nature: The nature of works may range from pure facts to highly creative works. Pure creative work, weighs against a Fair Use determination, while a statement of facts, weighs in favor of a Fair Use.
A research article is normally considered as predominately "fact."
Fair Use Guidelines - AmountFavoring Fair Use Small quantity Portion used is not
central Amount is appropriate
for the educational purpose
Large portion or whole work used
Portion used is central to work or significant to entire work or "heart of the work"
Opposing Fair Use
Fair Use Case Study
Amount: Using a whole work tends to weigh against fair use, while including only small portions may weigh in favor of fair use.
Fair Use Guidelines – EffectFavoring Fair Use
User owns lawfully acquired or purchased copy of original work
One or few copies made No significant effect on the
market or potential market for copyrighted work
No similar product marketed by the copyright holder
Lack of licensing mechanism
Could replace sale of copyrighted work
Significantly impairs market or potential market for copyrighted work or derivative
Reasonably available licensing mechanism for use of the copyrighted work
Numerous copies made You made it accessible on
Web or in other public forum
Repeated or long term use
Opposing Fair Use
Fair Use Case Study - Effect
JBC is an “open access” journal. Everyone has access to the articles published in this journal. So, useof this article onDr. Jone’s Webpage would haveno effect on themarket value of the work.
Dr. Jones’ Score Card
Purpose - OK Nonprofit, teaching, scholarship
Nature – OK Published work, factual article
Amount – OK One article, germane to class
Effect – OK Open access journal
Fair Use Case Study
Dr. Jones decided to put the article on her Web site.
She puts a link to the JBC Web site and students download the article for themselves.
But what if . . . ?
Fair Use Case Study – Scenario #2
Professor Jones wanted to post an article from the Journal of Molecular and Cellular Cardiology on her course Web page.
Dr. Jones’ Score Card #2
Purpose - OK Nonprofit, teaching, scholarship
Nature – OK Published work, factual article
Amount – OK? One article, germane to class
Effect – No Usage charge
Fair Use Case Study
Professor Jones decides NOT to use the JMCC article and instead uses the JBC article in her course Web page. After the course is completed she removes the link to the article from her Web page.
Fair Use Case Study
Professor Jones wants to use the same article again next year.
Can she use it again?
She should take down (archive) her Web site until the next time she teaches the course. Also, she should try to get permission to use the article for subsequent classes.
Fair Use Case Study
Probably yes – but get permission!
How do you obtain permissions?
Fair Use Case Study
Creative Commons
Copyright “lite” Authors register materials and assign
usage restrictions http://creativecommons.org
Copyright and Fair Use are designed as ‘guidelines” rather than definitive rules.
Common sense and logic will probably hold you in good stead!
Conclusions
Copyright Essentials for Librarians and Educators
By Kenneth D. CrewsDirector, Cornell Copyright Information Center
Resources
UT Crash Course in Copyright
Cornell Copyright Information Center
Resources
Links to other resources:Medical Education Resource for Instructional Technology (MERIT)