1.Copyright and Fair Use for the Classroom H. Stephen McMinn, Director of Collections and Scholarly Communications

2. Overview/Outline Introduction What is Copyright? Fair Use Recent Decisions Georgia State University Decision --Implications 3. 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) 4. Copyright -- Confusion Copyright vs. Public Domain Usually by Date http://copyright.cornell.edu/resources/publicd omain.cfm Copyright vs. Open Access Copyright and Creative Commons Both Copyright Permissions issue 5. Exceptions to Copyright Law Numerous - depending on type of material, users, and author/producers 3 Major for Educational Purposes 1. Face-to-face Instruction 2. Virtual Instruction 3. Fair Use 6. 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) 7. 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) 8. 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 cant copy/share. 9. 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) 10. 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. 11. Fair Use The 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. 12. Fair Use The fairness is based on four factors each of which is weighed equally. 1. 2. 3. 4.Nature and Purpose of the Use Nature of the Copyrighted Work Amount or Substantiality of Portion Used Effect on the Market Place 13. 2 Examples Example 1 A professor whishes to place 3 chapters (an introductory chapter and chapters 12 & 13 of the 15 chapter work). The work is a non fiction treaties on the housing crisis where the work analyses several factors with emphasis on the changing regulation in the banking industry as the root cause. 14. 2 Examples Example 2 To supplement information not discussed indepth in the course textbook. An environmental science professor wants to place one chapter of a 12 chapter book that discusses the health, safety, and environmental impact of a chemical used in cleaning up oil spills from a organic chemistry book focused on hydrocarbons. 15. 1st Factor Purpose and Character of the Use Purpose Nonprofit, Educational, Personal, Commercial, For Profit Character Teaching, Research, Scholarship, Criticism, Com mentary, News Reporting, EntertainmentFair Use Educational Nonprofit using works for teaching, research, and scholarship 16. 1st Factor - Purpose & 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 17. 2nd Factor Nature of the Copyrighted Work Factual vs. Creative Scholarly, scientific, technical vs. artistic, fiction Some items not covered, i.e. consumables workbooks, standardized tests, etc. also recipesFair Use -- favors use of factual works 18. 2nd Factor - Nature of the Copyrighted Work Example 1 This is a nonfiction popular work that tends towards creative/opinion as marketplace is broader than academic Tossup Example 2 The work is a factual, scientific/technical work Favors Fair Use 19. 3rd Factor Amount or Substantiality of Portion Used 2 Criteria How much is used? Core or Heart of the Work? Depends on type of material No magic number or percentage* 20. 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 21. 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 22. 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 23. 4 Factors Analysis Example 1 1. Fair Use 2. Tossup 3. Permission 4. PermissionExample 2 1. Fair Use 2. Fair Use 3. Fair Use 4. Fair UseNeed to obtain permission!Can use without permission under Fair Use 24. 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! 25. Recent Copyright Decision UCLA Media Streaming HathiTrust Scanning works Wiley vs. Kirtsaeng 1st Sale Doctrine Georgia State University 26. 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 as they felt they were in violation of Fair Use or were infringing on their copyright. 27. GSU Decision Case decided in 2012 5 Total Violations out of 99 or 75 Started with 99 works but couldnt prove they held copyright for 24 of the works Analyzed 75 total works for the 4 factors 4 Violations exceeded amount and permissions were available and 1 heart of the work. 28. 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 29. 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. 30. Takeaways Library is here to help Both E-Reserves and Copyright Questions Library cant always perform miracles Permissions take time and/or cost money Permission costs passed back to Departments Things are getting better 31. 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 32. Questions? Thank You! Stephen McMinn