RECLAIMING FAIR USEHow to Put Balance Back in

Copyright

Patricia Aufderheide and Peter Jaszi

Presentation by:Deb Ranallo and Nurhak Tuncer

WHAT IS FAIR USE

• the conditions under which you can use material that is copyrighted by someone else without paying royalties

http://dictionary.reference.com/browse/fair+use?s=t

Nightmare on Copyright Street

• (in US copyright law) the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder. http://oxforddictionaries.com/definition/english/fair%2Buse?q=fair+use

• a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner

http://www.merriam-webster.com/dictionary/fair%20use

WHO ARE THE AUTHORS

• Patricia Aufderheide

• Peter Jaszi

Patricia Aufderheide

• Co-Director, Center for Social Media

• Professor of Communications

• Established Author

• Film Critic

• Award winning journalist

Peter Jaszi

• Professor of Law

• Faculty Director of the Intellectual Property clinic

• Extensive Work with Copyright Issues

FEAR AND DOUBT A DILEMMA

• FAIR USE NOT CLEARLY DEFINED

• DOUBT AS TO WHAT IS ‘FAIR USE’

• FEAR OF BEING WRONG

• GETTING PAST THE INSECURITY

UNDERSTANDING COPYRIGHT

• WHY WAS IT CREATED

• WHO DOES IT PROTECT

• WHY IS FAIR USE IMPORTANT

• http://www.youtube.com/watch?v=CJn_jC4FNDo

• the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)

COPYRIGHTDEFINED

Works First Published After 1977• As a result of the Copyright Term

Extension Act of 1998, most copyrights for works published after January 1, 1978, last for the life of the author plus 70 years. However, in the following circumstances, the copyright lasts between 95 and 120 years, depending on the date the work is published:

• The work belongs to the author’s employer under work made for hire principles.

• The work was commissioned under a work-made-for-hire agreement (and fits within one of the categories of works that qualify for work made for hire treatment).

• The author publishes and registers the work anonymously or under a pseudonym.

• After a copyright expires, the work goes into the public domain, meaning it becomes available for anyone’s use.

Works Created Before 1978• Works Created Before 1978• If the work was published before

1923, it is in the public domain (available for use without permission).

• If the work was published between 1923 and 1963 and not renewed, it is in the public domain.

• If the work was published between 1923 and 1963 and it was renewed, the copyright lasts 95 years from the date of first publication.

• If the work was published between 1964 and 1977, the copyright lasts for 95 years from the date of publication.

• If the work was created before 1978 and published before December 31, 2002, the copyright lasts at least until December 31, 2047; if created before 1978 and not published before December 31, 2002, the copyright has expired and the work is in the public domain in the United States. In other words, all unpublished works created by authors who died 70 or more years ago are now in the public domain in the United States. This is so whether the author was American or a non-American. Unpublished works made for hire created more than 120 years ago are also in the U.S. public domain.

FAIR USE FOUR FACTORS• The purpose and character of the

use

• The nature of the copyrighted work

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

• The effect of the use upon the potential market for, or value of, the copyrighted work. www.intellectualpropertylawfirms.com/topics.cfm/copyright-fair-use-laws.html

DECLINE OF FAIR USE

• Copyright laws became longer and stronger

• Copyright biased the interests of major media corporations and artists

• 1984 saw the rise of international sales and production of pop culture making things even worse.

Technology is the Devil?

• Copy-friendly VCR

• Napster and music file-sharing

• Trade Associations campaign

• Discouragement of downloading

• Fair Use Dangerous

EXAGGERATION creates FEAR• “Students are allowed to copy short

passages of copyrighted text, individual copyrighted images, and excerpts from other copyrighted material in their school work, as long as they credit their sources. This is call ‘fair use’. But, no one is allowed to copy copyrighted material outside the classroom for any reason without getting permission!

RISE OF FAIR USE

• Manifesto of change

• Need balance to unbalanced copyright laws

• James Boyle and Lawrence Lessig

• Response to the endangerment of cultural expression

Resurgence

• Call for wide-ranged legal changes

• Rewriting copyright law to roll back the length

• Creative Commons emerges

• Open Source

• Free Culture

• Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007, H.R.1201, or simply the FAIR USE Act of 2007 was a bill introduced February 27, 2007 in the 110th Congress by Rich Boucher (Virginia-D) to the United States House of Representatives.

FAIR USE ACT

• This bill sought to return many fair use rights to citizens, specifically those relating to copy protection and the circumvention thereof. Its purpose was to promote innovation and to encourage the introduction of new technology. It meant to enhance library preservation efforts and to protect the fair use rights of consumers. It was not passed.

BEST PRACTICES• Documentary• Media Literacy• On Line Video• Academic and Research Libraries• Poetry• Open CourseWare• Scholarly Research in Communication• Dance Related Materials• Cinema and Media Studies

FAIR USE BEST PRACTICES

BALANCE

• http://www.youtube.com/watch?v=GY-2YshuJ8o

HOW TO FAIR USE

• Create or Use Best Practices

• Learn From Others

• Do Not Feel Guilty

• Avoid giving up your Fair-Use Rights

• Use reference sources and websites

The Center for Social Media

• Frequently Asked Questions

• Events

• Documents

• Conferences

• Blog

• Templates

OTHER FREE USE

• Public Domain Works

• Creative Commons

• Exemption of copyright

• Beware of Trademarks

• Patents

• Trade Secret

• Right of Publicity

• Traditionally embraced fair use

• Realize it is a safety valve in copyright system

• Rely on whether material has been transformed (repurposed)

• Law requires case-by-case decisions

• Decision made within the climate of legal opinion which varies

FAIR USE IN THE COURTSHow the Judges Think

Fair Use in Academia

• http://itnewsalert.com/1RA/1S2?ID=7487573514&em=ranallo@dom.edu

WHY IS FAIR USE IMPORTANT

• The authors stress the need for a balance in copyright between owners and those who use their material to make and analyze culture will be a crucial part of building an open society for tomorrow.

• The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

• The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

• When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

SOUND FAMILIAR?

WHAT HAVE WE LEARNED?

Outside the U.S.

• Countries that are members of the Berne Convention and countries that have signed the GATT treaty (which requires its members to honor the Berne Convention’s copyright protection standards) extend copyright protection for the life of the author plus a minimum of 50 years. The countries in the European Union also extend copyright protection for the life of the author plus 70 years. 

MYTHS

• “Fair Use is only valid when it is noncommercial.”

• “Any noncommercial use is fair”.• “Fair use is always valid if you are using

copyrighted material in an educational context, and especially within a classroom.”

• “Fair Use is only about criticism and commentary, such as parody.”

• “Fair Use is just “the right to hire a lawyer.’”

• “Fair use needs a really good test case in the courts to set precedent”

• Fair Use is too dangerous, even if you win a law suit, your life and finances could be ruined.

• Fair Use is just a defense, it is not a right.• Fair Use is just an interpretation, not part of the

law.• I can’t use fair use, because the copyright

holders would never agree to it.

More Myths

You be the judge

• Orphaned Material– “You are making a movie that is part

documentary and part fiction, using the photos and letters of a now deceased man found in a photo album discovered in a second-hand store. You have been unable to locate the copyright owner through a cursory Internet search. Can you use this material under fair use? Is the unpublished photo album even copyrighted?”

• Checklists– “Your university has asked you to create

some guidelines for faculty on using copyrighted material on their Blackboard sites for their classes. You have seen a number of “four factors” checklists, and think this might be a solution, especially since faculty want clear, bright-line advice. You can even design a simple step-through process to take them through the four factors online. Will that be a helpful approach?”

You be the judge

REFERENCES

• Center for Social Media– http://www.centerforsocialmedia.org/

• Best Practices for Academic and Research Libraries– http://centerforsocialmedia.org/libraries

• Copyright Law– http://www.copyright.gov/fls/fl102.html

USE IT OR LOSE IT

• http://www.youtube.com/watch?v=uUGlmzXyUj8

• ALWAYS CONCERN

• USE GOOD JUDGEMENT

• CREATE BEST PRACTICES

• ADHERE TO PRACTICES

•DON’T BE AFRAID!!!!

THANKS TO OUR SOURCES

• www.american.edu/soc/faculty/paufder.cfm

• www.wcl.american.edu/faculty/jaszi

• www.ccianet.org/Peter-Jaszi

• www.centerforsocialmedia.org

• www.intellectualpropertylawfirms.com

• www.youtube.com

• www.copyright.gov/fls/fl102.html

More Sources

• www.dictionary.reference.com

• www.miriam-webster.com

• www.oxforddictionaries.com

• Maggie