Fair Use and Copyrightin Teaching and Scholarship

Molly KeenerScholarly Communication Librarian

Wake Forest UniversityOctober 25, 2012

FAIR USE & COPYRIGHT BASICSIN TEACHINGIN SCHOLARSHIPCOURT CASES’ “CLARITY”

TO UNDERSTAND FAIR USE, FIRST UNDERSTAND ©

What is copyright?

Copyright is a bundle of rights:

• Reproduction• Distribution• Derivative creation(s)• Public performance• Public display

The right to license any of the above to third parties

What copyright protects

Copyright protects…• Writing• Choreography• Music• Visual art• Film• Architectural works

Copyright doesn’t protect…• Ideas• Facts• Titles• Data• Useful articles (that’s

patent)

Who owns copyright?

• Individual creator

• Joint creators

• Corporate creators via “work made for hire” – with some exceptions*

And any person or entity to whom copyright is given by the original owner in writing

*Teaching materials & scholarly publications

Requirements for protection

• An original work

• Creativity (just a dash)

• Fixed in a tangible medium of expression

How do we get copyright?

• Copyright exists from the moment of creation, and lasts for the life of the author plus 70 years

• You used to need a little c in a circle, and to register your work with the copyright office, but you don’t anymore

Copyright just happens.

As run the sands of time…

• The bundle of copyrights lasts a long time:– Life of the author plus 70 years– For joint works, 70 years after death

of last author– For works for hire or anonymous

works, 95 years from publication or 120 years from creation, whichever expires first

FAIR USE OF COPYRIGHTED WORKS

So what is Fair Use?

• Part of U.S. copyright law17 USC § 107 – Limitations on exclusive rights: Fair Use

• Protects uses of copyrighted works without need for permission

• Types of protected uses include: • Criticism• Comment• News reporting• Teaching (including multiple copies for classroom use)• Scholarship• Research

The “four factors” of Fair Use

1. Purpose: how is it being used?

2. Nature: what type of work is it?

3. Amount: how much of the whole? Heart?

4. Impact: market effect?

5. Transformative use

IN TEACHING

Teaching-specific uses outlined in law

• Classroom exemptions• More limited than you may think!• Must be in a classroom or similar space, in person, with

only enrolled students, at a non-profit educational institution• NOT online (see below) and NOT distributing copies

(see above), just public performance and display

• TEACH Act• DMCA

• Not explicitly about education, but impacts

Other ways to use © works in teaching

• Public domain

• Licenses, such as Creative Commons

• Permissions• Individuals• Publishers

• Your own works*

• FAIR USE!

Scenarios for discussion

1. A faculty member downloads an article from a library database and posts in Sakai for students to read.

2. A student includes an image found online in a class presentation.

3. A faculty member creates a website from class work and includes work of former students.

IN SCHOLARSHIP

Managing copyright when publishing

• Copyright can be transferred only in writing

• Licensing allows specific rights to be retained:• Authors keep copyright and license other rights

(e.g., first publication)• Publishers take copyright and license rights back

(e.g., reproduction, derivatives)

• Negotiating rights retention is beneficial

• Open Access publishers usually do not require full transfer of copyright

The secrets of reuse

• By the author• If specific rights retained, reuse is possible• If no rights retained, then Fair Use or by

permission

• By others• If published open access, then freely accessible –

and possibly more• If published under a Creative Commons license,

then within limits defined by the license• If published traditionally, then Fair Use or by

permission

Scenarios for discussion

1. A PI is listed as an author on an article, even though her direct contributions came through lab research, not writing.

2. A graduate student wishes to include two published articles as chapters in his dissertation.

3. A faculty member wants to create a database of indexed articles for text-mining.

SO WHAT HAVE THE COURTS HAD TO SAY?

Georgia State University

• Filed in 2008, verdict in 2012

• Infringement found in only 5 of 99 instances

• Subsequent semester use still fair

• Fair Use victory, with limitations• “Bright-line” rule of 10% or 1 chapter, excluding heart• Only alleged infringement with scholarly books

• Plaintiffs (Cambridge UP, Oxford UP & SAGE) intend to appeal

Google Books

• Filed in 2005, partially settled in 2012

• Original settlement rejected in 2011

• Little change for users

• Not a Fair Use victory, as Fair Use not argued

• Authors Guild suit still open, pending class action appeal

HathiTrust

• Filed in 2011, dismissed on summary judgment in 2012

• Resounding Fair Use victory

• Argument that library-specific provision in copyright law negates Fair Use rejected

• Appeal on summary judgment dismissal more difficult than standard trial appeal

Attribution• Slide 5: “Bundles” http://www.flickr.com/photos/fboyd/2156630044/ • Slide 14: “Seesaw” http://www.flickr.com/photos/nzgabriel/2607065194/ • Slide 28: “sensitive noise / obvious 2” http://flic.kr/p/8HDJ5B

This work is partially based on work created by Molly Keener and Kevin Smith for the ACRL Scholarly Communication 101 Road Show, and was last updated on October 24, 2012 by Molly Keener. It is licensed under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-sa/3.0/us/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA.

Ask me!keenerm@wfu.edux5829402 ZSR Library