BY:JEANNE LIMA,

ELIZABETH MEYERAND PHIL ANDERSON

Copyright and Fair Use Online

INST 523 Information Access and the InternetDr. Anne Hird

Fall 2009

What is ‘fair use’?

Fair Use

• Fair Use was first codified in the Copyright Act of 1976 in response to new technology, such as the computer

• Defines the circumstances under which you do not need permission to use copyrighted materials

• Created primarily for educators, researchers, and news reporters

• Places limitations on the use of copyrighted materials in order to protect the income of the copyright holder yet at the same time preserves enrichment for the artist’s audience

Four-Factor Analysis of Fair Use

1. Purpose and character of the use

2. Nature of the copyrighted work

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. Effect of the use upon the potential market for or value of the copyrighted work:

Factor #1 - Purpose and character of the use

• If the new work significantly transforms the original, then it is fair use. • Examples:

• Parody of original design • Remix video that parodies /criticizes the original

• If the use is for nonprofit or educational purposes, then it is fair use.• Examples:

• Using a song in an educational multimedia project is fair use

• Creating a copy of that song and selling it to your classmates is not fair use

Factor #2 Nature of the copyrighted work

• A published work has a better chance of being fair use than an unpublished work.

• A work that is out of print is considered fair use.

• A factual work rather than a creative work is more likely to be considered fair use.– Example:

• Photocopying a lesson from a math textbook is more likely to be considered fair use than photocopying an original short story

Fair Use

Factor #3 Amount and substantiality of the portion used in relation to the copyrighted work as a whole

• If the amount of the original work used is relatively small, then it is considered fair use.

• If the portion of the original work used is less significant than the rest of the work, then it is considered fair use.– Example

• Photocopying a relatively insignificant page from President Obama’s The Audacity of Hope is considered fair use. However, copying a page that contains the crux of his thesis is considered copyright infringement.

Factor # 4 Effect of the use upon the potential market for or value of the copyrighted work

If the new work appeals to a different audience than the original work, then it is more likely to be considered fair use. Example:

Using music from Yanni in a family video does not affect the market for Yanni’s music.

Copyright Laws in the Age of Technology

Copyright Act of 1976

• Created in response to new technology – video, musical, & graphical works

• Preempted all previous copyright law• Extended copyright protection for the author

from 28 to 50 years after his/her death• Codified Fair Use Guidelines

Copyright Act of 1976

Defines “original works of authorship:”

1. literary works

2. musical works, including any accompanying words

3. dramatic works, including any accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works;

7. sound recordings

8. architectural works

Copyright Act of 1976

Gives the copyright owner exclusive rights to:

reproduce the copyrighted work

prepare derivative works based upon the copyrighted work

sell, rent, or lease copies to the public

in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly

in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works to display the copyrighted work publicly

in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

National Commission on New Technological Uses of Copyrighted Works (CONTU) 1976

Purpose: to provide guidelines regarding interlibrary loan and photocopying for librarians

5 Guidelines for Interlibrary Loan Sharing of Resources under CONTU

1. Periodicals – for issues five years and newer, the borrowing library may receive no more than 5 photocopied articles per periodical title per calendar year. CCG (complies with CONTU Guidelines) may be posted on these 5 articles to indicate that they are permitted under CONTU.

2. Fiction and Poetry – While the work is under copyright protection, only 5 copies of it may be made per year.

3. Records – The borrowing library must keep records for up to four years of all requests regulated by the CONTU guidelines.

4. Verification – The borrowing library must verify copyright compliance on the interlibrary loan form.

5. The lending library must clearly stamp on each copy that the "request was made in conformity with these guidelines."

Conference on Fair Use (CONFU) 1994

Established by the U.S. Dept of Commerce

Purpose: to clarify Fair Use guidelines for librarians & educators in the face of rapid technology advances

Areas addressed: distance learning & educational multimedia

Eductional Fair Use Guidelines for Distance Learning

• Purpose of these guidelines – to clarify fair use principles for the use of copyrighted works for distance education

• Apply to nonprofit educational institutions

• Only students officially enrolled for the course at an eligible institution may view the transmission

• Transmission must be over a secure system, using a PIN number, password, smartcard or other means of identification

• The institution must prevent copying of the portion of the class session that contains performance of the copyrighted work.

Fair Use Guidelines for Educational Multimedia 1994

• Created by the Consortium of College and University Media Centers (CCUMC) & incorporated by CONFU

• Purpose of these guidelines – to clarify fair use principles for the use of copyrighted works, such as motion media, music, text, graphics, illustrations, photographs, and digital software in educational multimedia projects which are created by educators or students as part of a systematic learning activity

Fair Use Guidelines for Educational Multimedia

Students may incorporate portions of copyrighted works when producing their own educational multimedia projects.

Educators may incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia programs as teaching tools.

Fair Use Guidelines for Educational Multimedia (Cont.)

Students may perform and display their own educational multimedia projects and may use them in their portfolios for job and graduate school interviews

Educators may retain educational multimedia projects in their personal portfolios for later personal uses such as tenure review or job interviews.

Portion Limitations for Fair Use of Educational Multimedia

• Motion Media - Up to 10% or 3 minutes, whichever is less• Text Material - Up to 10% or 1000 words, whichever is less . An

entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used. For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used.

• Music, Lyrics, and Music Video - Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work

• Illustrations and Photographs - no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project. When using photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less,

• Numerical Data Sets - Up to 10% or 2500 fields or cell entries, whichever is less, from a copyrighted database or data table

TECHNOLOGY, EDUCATION, AND COPYRIGHT HARMONIZATION ACT

TEACH Act

TEACH Act

Signed by President Bush on Nov. 2, 2002

Primary purpose: to balance the needs of distance learners and educators with the copyright holders.

Image: worldeconomicforum

TEACH Act

Under TEACH:

Instructors may use a wider range of works in

distance learning environments.

Students may participate in distance learning sessions

from virtually any location.

All participants enjoy greater latitude when it comes

to storing, copying and digitizing materials.

TEACH Act – Criteria For Qualification

In order for the use of copyrighted materials in distance education to qualify for the TEACH exemptions, the following criteria must be met:

TEACH Act – Criteria For Qualification

The institution must: be an accredited, non-profit educational institution.

have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.

implement technological measures to ensure compliance with these policies. This may include: user and location authentication through Internet Protocol (IP)

checking content timeouts print-disabling cut & paste disabling

TEACH Act – Criteria For Qualification

The use must: be part of mediated instructional activities.

be limited to a specific number of students enrolled in a specific class.

be for either 'live' or asynchronous class sessions.

not include the transmission of textbook materials, materials "typically purchased or acquired by students," or works developed specifically for online uses.

be restricted to “reasonable and limited portions”, such as might be performed or displayed during a typical live classroom session, may be used.

What TEACH Does Not Allow

The new exemptions under TEACH specifically do not extend to:

Electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL).

Commercial document delivery.

Textbooks or other digital content provided under license from the author, publisher, aggregator or other entity.

Conversion of materials from analog to digital formats, except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures.

What TEACH Does Not Allow

It is also important to note that TEACH does not supersede fair use or existing digital license agreements.

(DMCA)

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act

Signed into law by President Clinton on October 28, 1998

Goals:

Move the United States’ copyright law into the digital age.

The protection of property that results from original creative thought.

The Digital Millennium Copyright Act (DMCA)

Design to implement treaties signed in 1996 at the World Intellectual Property Organization (WIPO) Geneva Conference. WIPO is responsible for the promotion of the

protection of intellectual property throughout the world through cooperation among States. (www.wipo.int/)

Additional provisions added in regards to related matter.

http://www.gseis.ucla.edu/iclp/dmca1.htm

The Digital Millennium Copyright Act (DMCA)

Highlights

• Makes it a crime to circumvent anti-piracy measures built into most commercial software.

• Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.

• Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems.

http://www.gseis.ucla.edu/iclp/dmca1.htm

The Digital Millennium Copyright Act (DMCA)

Highlights continued…

• Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.

• Limits internet service providers from copyright infringement liability for simply transmitting information over the Internet.

http://www.gseis.ucla.edu/iclp/dmca1.htm

The Digital Millennium Copyright Act (DMCA)

Highlights continued…

• Service providers, however, are expected to remove material from users' web sites that appears to constitute copyright infringement.

• Limits liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.

http://www.gseis.ucla.edu/iclp/dmca1.htm

Google Library Project

Google Library Project (2005)

Goal: 1. To work with publishers and libraries to

create a comprehensive, searchable, virtual card catalog.

2. To make it easier for people to find books – especially books out of print while respecting authors’ and publishers’ copyrights.

3. Enable users to research material and follow links to purchase from booksellers or publishers directly.

http://www.gseis.ucla.edu/iclp/dmca1.htm

Opposition Reasons:

• It will have an unfair advantage over publishers that want to provide e‐books

• Will provide Google a bridgehead in the publishing industry, which it will be able to exploit with its enormous resources.

• the Library Project restricts owners’ ability to license their works to search engine providers.

http://www.plagiary.org/Google-Library-Project.pdf

Google Library Project (2005)

Opposition Reasons:

• Concern about the security of the digitized copies in Google’s search index.

• Google is creating the index without their permission.

• If Google is “able to get away” with its Library Project, other search engines will also digitize their works without authorization.

http://www.plagiary.org/Google-Library-Project.pdf

Google Library Project (2005)

Google Library Project (2005)

Opponents

• American Association of Publishers• Authors Guild• McGraw‐Hill• Pearson• Penguin• Simon & Schuster• John Wiley & Sons

http://www.plagiary.org/Google-Library-Project.pdf

Google Library Project (2005)

Support:• Jonathan Band, author of “Google Library Project: both

Sides of The Story” feels society would benefit significantly from a search index. He believes it will not diminish the market for the books.

Conclusion: • I need to do more research, as far as I can tell, the Google

Library project was abandoned. -Beth Meyer

http://www.plagiary.org/Google-Library-Project.pdf

CONCERNS ABOUT THE STATE OF INTELLECTUAL PROPERTY & ILLEGAL USE

Changing perspectives on intellectual property rights

Image: VoodooArtist

Concerns about the state of intellectual property and illegal use

Clearly there is a widening gap between those pushing for change in the way we deal with intellectual property and who still see value in the “old” way of doing things.

Concerns about the state of intellectual property and illegal use

The emergence of digital technologies have made copying and sharing copyrighted material easy and discrete.

Concerns about the state of intellectual property and illegal use

This has those who rely on intellectual property for income alarmed, afraid and on the offensive.

Infringement Is Rampant

Pirated; 41%

Free or open-source; 15%

Legiti-mate,

paid-for software;

44%Global Software Piracy

Infringement Is Rampant

Kids’ attitudes towards copyrighted material

53% of kids download music

More than 33% download games

22% of kids steal larger files such as software

17% copy movies

29% think illegal copying is wrong.

8% say their parents approve of the activity.

Image: cayusa

Government Involvement

Piracy is being seen as a threat to the global economy

The G8 has formed the Intellectual Property Experts Group

Image: downingstreet

Infringed Companies’ Responses

Companies are moving away from suing individual infringers and toward more global solutions:

Digital Rights Management

Government support

Graduated Response

Graduated Response

New laws requiring Internet Service Providers to aid in copyright enforcement

Includes monitoring traffic on file sharing websites and other suspicious activities

Graduated Response

Responses include:

• Warning letter

• “Throttling” (decreasing) the user's bandwidth (connection speed)

• Cutting off service

• Blacklisting: preventing them from signing up for service with other ISPs

Image: splorp

Graduated Response

Countries using or considering graduated response:

Taiwan

France

England

Is this simply modern law enforcement. . .

or invasion of privacy?

Image: notsogoodphotography

THE NEED FOR A NEW APPROACH

Changing perspectives on intellectual property rights

The need for a new approach

Some are refining it.

Others are rebelling against it.

Many individuals are seeing a need for a new approach to intellectual property and even capitalism as a whole.

Refinement: Creative Commons

Creative Commons has created an easy, universal system of adjusting usage restrictions on copyrighted works.

“You don't give up your copyright, you refine it so it works better for you. Welcome to a new world where collaboration rules!”

-Creative Commons

Their goal is to increase the amount of publicly usable content.

Rebelling Against the System

The current state of copyright. . . is it unconstitutional?

“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 Constitution of the United States of

America

Image: Constitutional Convention

Rebelling Against the System

The evolution of the U.S. copyright term:

1790 – 14 years, renewable for 14 more

1831 – 28 years, renewable for 14 more

1909 – Renewal extended to 28 years

1978 – Life of the author plus 50 years

1998 – Life of the author plus 70 years

Rebelling Against the System

“Copyright. . . has an unreasonable term length, and is used to prevent, rather than promote, innovation.”

- The Pirate Party

“the right of use should never be in question; merely the right to be credited.”

- The Pirate Party

“The concept of “returning” works to the public suggests that no new idea is truly new, that it is only built from some previous societal knowledge.”

- Public Knowledge

Jeanne Lima

Elizabeth Meyer

Phil Anderson