Copyright and Fair Use for the Classroom

Jane Treadwell, University Librarian and Dean of Library Instructional Services

H. Stephen McMinn, Director of Collections and Scholarly Communications

Overview/Outline

Introduction – What is Copyright? Fair Use Recent Decisions Georgia State University Decision

--Implications

Copyright -- U.S. Constitution

“Empowers the United States Congress 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”

Copyright Clause of the U. S. Constitution (Article I, Section 8, Clause 8)

Exceptions to Copyright Law

Numerous - depending on type of material, users, and author/producers

3 Major for Educational Purposes1. Face-to-face Instruction 2. Virtual Instruction3. Fair Use

Face-to-face Instruction*

Traditional classroom -- In this setting all performances and displays of a work (Text, Music, Images, and Video) are allowed.Requirements:

1. All materials must be legally acquired. 2. Teaching activities must take place in a classroom or a similar place devoted to instruction.

(*Section 110 of the U.S. Copyright Code)

Virtual Instruction*

Online, Hybrid, or supplemental use of course management systems. Virtual instruction includes digitally transmitting class materials to students. The basic premise is to allow comparable instruction in the online environment as to what takes place in a traditional classroom.

(*Section 110(2) -- TEACH Act)

TEACH Act Requirements- 3 Types

Instructors– Regular part of the curriculum, chosen by the

instructor, must be an integral part of the class session, directly related to the teaching content, and comparable to traditional class.

Technology– Only enrolled students, only for the duration of

the class, and students can’t copy/share.

TEACH Act Requirements- 3 Types

Course Materials– Listing of acceptable materials – most materials– Non acceptable materials – textbooks, course

packs, illegal copies– Must contain notice of copyright– May convert analog version to digital (only

amount needed)

Fair Use

Fair use allows for exceptions to the copyright law for use not specifically exempted as long as that use can be considered fair.

A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

Fair UseThe copyright law also states the various purposes for which the reproduction of a particular work may be considered fair, some of these include criticism, comment, news reporting, teaching, scholarship, and research.

Fair Use

The “fairness” is based on four factors each of which is weighed equally.

1. Nature and Purpose of the Use2. Nature of the Copyrighted Work3. Amount or Substantiality of Portion Used4. Effect on the Market Place

2 Examples – Example 1

A professor wishes to place on reserve 3 chapters (an introductory chapter and chapters 14 & 15 of the 15 chapter work). The work is a non fiction treatise on the housing crisis by a noted economist, that analyzes several factors with emphasis on the changing regulation in the banking industry as the root cause.

2 Examples – Example 2

To supplement information not discussed in-depth in the course textbook, an environmental science professor wants to place on reserve chapter 6 of a 12 chapter book on hydrocarbons that discusses the health, safety, and environmental impact of a chemical normally used in the clean up of oil spills.

1st Factor

Purpose and Character of the Use Purpose – Nonprofit, Educational,

Personal, Commercial, For ProfitCharacter – Teaching, Research, Scholarship,

Criticism, Commentary, News Reporting, Entertainment

Fair Use – Educational Nonprofit using works for teaching, research, and scholarship

1st Factor - Purpose and Character of the Use Example 1 – Nonprofit Educational

Institution using the work for Teaching/Scholarship– Favors Fair Use

Example 2 -- Nonprofit Educational Institution using the work for Teaching/Scholarship– Favors Fair Use

2nd Factor

Nature of the Copyrighted WorkFactual vs. Creative scholarly, scientific, technical vs. artistic,

fiction, poetry

Some items not covered, i.e. consumables – workbooks, standardized tests, etc.

Fair Use -- favors use of factual works

2nd Factor - Nature of the Copyrighted Work Example 1 – This is a nonfiction popular

work that tends towards creative/opinion with a broader marketplace than academia– Tossup

Example 2 – The work is a factual, scientific/technical work– Favors Fair Use

3rd Factor

Amount or Substantiality of Portion Used2 Criteria

How much is used? Core or “Heart of the Work”?

Depends on type of material

No magic number or percentage*

3rd Factor - Amount or Substantiality of Portion Used Example 1 – 3 chapters of 15 chapter work

is 20% and ending chapters with conclusion could be considered “Heart of the work”– Favors needing permission

Example 2 – 1 chapter of 12 chapter work with chapter not core to the overall work.– Favors Fair Use

4th Factor

Impact on the Market Place Effect of the use upon the potential market

for, or value of, the copyrighted work Use vs. Purchase? Criteria - Permissions readily available or

not, at reasonable cost, own a copy of the work, access restrictions in place…

4th Factor - Impact on the Market Place Example 1 – Library owns copy but e-book

available and permission can be obtained from Copyright Clearance Center (CCC).– Favors needing permission

Example 2 – Library owns copy of book, e-book not available and not with CCC.– Favors Fair Use

4 Factors Analysis

Example 11. Fair Use2. Tossup3. Permission4. Permission

Need to obtain permission!

Example 21. Fair Use2. Fair Use3. Fair Use4. Fair Use

Can use without permission under Fair Use

Fair Use

Balance between Public and Copyright holder

All factors should be weighted the same Not dependent on technology or format Fair use allows for use without permission Not all educational use is Fair Use!

Copyright -- Confusion

Copyright vs. Public Domain– Usually by Date– http://copyright.cornell.edu/resources/publicdomain.cfm

Copyright vs. Open Access Copyright and Creative Commons

Both Copyright – Permissions issue

Recent Copyright Decisions

UCLA http://chronicle.com/blogs/wiredcampus/judge-dismisses-lawsuit-against-ucla-over-use-of-streaming-video/33513

Georgia State University http://chronicle.com/article/Long-Awaited-Ruling-in/131859/

HathiTrust http://chronicle.com/article/Judges-Decision-Could-Clear/135224

Wiley vs. Kirtsaeng (pending) http://chronicle.com/article/Supreme-Court-Appears-Divided/135478

Georgia State Univ. Decision

In Brief – Three scholarly publishers supported by the Association of American Publishers and the Copyright Clearance Center sued GSU in 2008 over electronic reserves policy/practices that they felt were in violation of Fair Use or were otherwise infringing on copyright.

GSU Decision Case decided in 2012 5 Total Violations out of 99 or 75– Started with 99 works but couldn’t prove they

held copyright for 24 of the works– Analyzed 75 total works for the 4 factors

5 Violations – 4 exceeded amount and permissions were available and 1 “heart of the work.”

GSU Implications

Really Unknown Still!– Appeal– Georgia only– Reserves and Non-fiction works

*Provided Guidelines on amount – 10% of works under 10 chapters or 1 chapter for items with 10 or more chapters

GSU Implications

Eliminated old one semester rule! Leaned heavily on availability of easily and

reasonably obtaining permission Economic Good News– “Prevailing Party” Ruling– Monetary damages would have been negligible

or unavailable due to state sovereign immunity.

Takeaways

Library is here to help– Both E-Reserves and Copyright Questions

Library can’t always perform miracles– Permissions take time and/or cost money– Permission costs passed back to Departments

Things are getting better

Overall Picture– Things are Getting Better More Guidelines More Licensed Resources Paid Permissions more streamlined Greater Awareness of Copyright &Fair Use Limited Liability UIS Policies/Activities/Services

Questions?

Thank You for Attending!Stephen McMinn

Jane Treadwell