copyright and fair use in higher education

University of Massachusetts Amherst

From the SelectedWorks of Laura Quilter

January 17, 2013

Copyright and Fair Use in Higher EducationLaura Quilter, University of Massachusetts - Amherst

Available at: https://works.bepress.com/laura_quilter/21/

Copyright & Fair Usein Higher Education

Laura Quilter / UMass Library2013 January 17

“It's one of those life skills now, right? When you graduate from high school or college, you should know how to read a map, you should know how to use GPS, you should know a little bit about copyright. If you are somebody who is going to be in a field where you will encounter copyrighted

Maria Pallante, Register of Copyrights, Ars Technica, July 13, 2011, http://arstechnica.com/tech-policy/news/2011/07/new-register-of-copyrights-unfortunately-i-start-with-enforcement.ars

materials all the time, you should know more. If you're going to be an artist or musician and you're getting a red-hot degree in the performing arts, you should know a lot. And I don't think that's quite the case—I don't think it's been built into curricula.”

How did we get here?

1. technology shift … Expanding markets in entertainment, IT, biotech

2. that precipitated a wholesale transformation in law of information○Quiet area of law suddenly suffused with $$$, lobbyists,

Congressional hearings○Public interest groups late to the table ○Rapid changes in law with little or no public input

• 1976: Copyright by default, on everything• 1980: Computer program amendments• 1982: Piracy & Counterfeiting • 1984: Record Rental Amendment• 1984: Semiconductor Chip Protection Act (SCPA)• 1988: Berne Convention Implementation• 1990: Visual Artists Rights Act• 1990: Architectural Works Copyright Protection Act• 1990: Computer Software Rental Amendments Act• 1991: Semiconductor International Protection Extension• 1992: Copyright Renewal Act• 1992: Audio Home Recording Act• 1994: Uruguay Round Agreements• 1995: Digital Performance Right in Sound Recordings• 1996: Anticounterfeiting Consumer Protection Act• 1997: No Electronic Theft Act• 1998: Sonny Bono Copyright Term Extension Act• 1998: Fairness in Music Licensing Act• 1998: Digital Millennium Copyright Act◦ WIPO Performances & Phonograms Implementation◦ OCILLA (Section 512, DMCA)◦ Computer Maintenance Competition Assurance◦ Vessel Hull Design Protection Act (VHDPA)• 1999: Digital Theft Deterrence & Copyright Damages “Improvement”• 2000: Work Made for Hire• 2002: TEACH (Technology, Education, & Copyright “Harmonization”) Act• 2004: Copyright Royalty & Distribution Reform Act• 2004: Satellite Home Viewer … • 2004: Intellectual Property Protection & Courts Amendment … • 2005: Artists’ Rights & Theft Prevention Act• 2005: Family Entertainment & Copyright Act of 2005• 2008: PRO-IP (Prioritizing Resources and Organization for IP)• 2009: Webcaster Settlement Act, Section 119 Satellite Statutory License• 2010: Satellite TV Extension & Localism Act• 2010: Copyright Cleanup

why do academics care about copyright?

● creators & owners of copyrights● users of others' material in teaching● users of others' material in research /

publications

● changes in copyright law and publishing have turned academic copyright into an impediment to research and teaching

why do universities care about copyright?

● pay to create the copyrighted works: ○ (a) costs of supporting the researcher; ○ (b) support the researchers for peer review; ○ (c) page charges

● pay again to access the copyrighted works they paid to create:○ journal subscriptions○ licensing : document delivery & e-reserves &

permissions for re-use for teaching or replicating● subsidizing profits for publishers

Scholarly Publishing, Today

subsidizing (for-profit) publishers

● consolidation of scholarly journals into for-profit publisher's portfolios; consolidation of publishers into larger media corporations○ e.g., Elsevier, 2010: 37% profit margin

● serials budgets swallowing monograph budgets, leading to decline of University & scholarly presses

Crisis in scholarly communication

● “publish or perish” > more jrnls

● “profit or perish” > more $$$

● more users & more uses● University bottom line:

Pay, pay, pay, pay (research, publication, subscription, re-use)

part 1: you own copyrights.

now what?

you own copyrights! (lots of them)

● any "original work of authorship"

● "fixed in any tangible medium of expression"○ what does that mean ?

● you don't have to register or print (c) on the document (although it's helpful)

● the (c) extends 70 years after your death!

"fixed in any tangible medium of expression"

● .... ? ○ papers○ photographs○ unpublished manuscript○ letters○ emails○ slide decks○ scribbled notes on post-its○ doodle

is there anything you can't copyright?

● facts, ideas, methods: the digits of pi (3.14159...), the A-B-Cs (not an "original work of authorship"), a plot, a recipe, a formula

● functional designs / "useful articles"○ clothing or furniture designs

● short phrases and titles● works by the US government

cf. trademark, trade secret, patent, contracts

... your copyright lets you:

● authorize reproductions (copies), the first distribution (publication), derivative works (translations, adaptations), performance, display, broadcast

● assign your copyright or a part of it to someone else (e.g., a journal)

● "license" your work to someone else (e.g.,. Creative Commons; permit re-use)

● terminate an assignment after 35 years

... BUT your copyright DOES NOT:

● guarantee attribution / credit● allow you to control re-sale● allow you to prevent a "fair use" (critique,

news, teaching, transformation)

● allow you to control facts● allow you to control use of your image

... you can transfer your copyright

● assign your copyright or a part of it to someone else (e.g., a journal)

● "license" your work to someone else (e.g., Creative Commons; permit re-use)

● terminate an assignment after 35 years

assigning your copyright

● When you assign your copyright to a journal, you no longer own the copyright to your article. You are now a legal stranger to your article* and may have to ask permission from the journal to reprint it, distribute it, or adapt it.

● Does the journal need you to assign your copyright to them to print it? NO.

* in most circumstances

alternatives to assignment

● You can license some rights. ○ Publisher may only need non-exclusive rights

■ First publication; credit; rights to re-print.○ Open Access ("OA") publications○ Creative Commons licensing

■ CC-BY guarantees attribution

Creative Commons

alternatives to assignment

● You can assign your copyright but retain some rights. ○ SPARC Addendum (attach it to your author

agreement!)○ YOU KEEP -- Rights to re-distribute

(classroom use? faculty requests, include in other works), self-archive, archive in your institutional archive, adapt / translate

SPARC Author Addendum

open access facilitates scholarship!

● greater distribution without journal fees○ developing nations, less wealthy institutions,

students & teachers, practitioners, the public● improved citation indexes● less hassle -- no permission requests &

transactions for routine uses● helps research & university budgets

○ cost of research... page charges... subscriptions... peer review... other uses

UMass ScholarWorks

self-archiving

● Increasingly author agreements facilitate self-archiving on author websites or institutional repositories.

● If not, ASK. (SPARC et al)

PLUS:● #PDFtribute for Aaron Swartz

more information

● UMass ScholarWorks, http://scholarworks.umass.edu● AAAS, Authorship Rights Report, http://www.aaas.

org/spp/sfrl/projects/epub/● US Copyright Office, http://copyright.gov/ ● Create Change, http://createchange.org/● Creative Commons, http://creativecommons.org/● SPARC, http://arl.org/sparc/

part 2: you use copyrights.

is it fair use?

Simple questions in the Academy ….

● Can a scholar publish portions of landscape plans held by the National Park Service?

● Can the Development Office redistribute copies of newspaper articles?

● Can a faculty member use a patented reagent?● Can the library digitize this book?

but ambiguous, confusing, or complex answers in copyright law ….

copyright controls some rights...

... but not all rights. Rights not controlled by copyright include:● numerous specific statutory exceptions● "de minimis" uses● uses of non-copyrighted aspects (facts)● first sale● fair uses● licensed uses [e.g., Creative Commons;

library licensed; requested permission]

Bion Smalley, American Libraries, May 1977

"What is 'fair use'?"

what is fair use?

"A legislatively sanctioned element of 'gut instinct' lies at the core of every fair use determination." Julie Cohen, 1995

17 USC 107: "the factors to be considered shall include" ... * purpose /character * nature of the work* amount taken * effect on market

purpose or character of the use

● transformative in character?

● transformative purpose?

● non-profit educational? (multiple copies for classroom use)

● substitutive

● commercial

more fair less fair

purpose or character of the use

● transformative in character? or substitutive?

● transformative purpose? or commercial?

nature of the copyrighted work

● factual?

● published?

● not commercially available at a reasonable price?

● creative (fictional, artistic)

● unpublished? * [not dispositive]

● commercially available?

more fair less fair

amount & substantiality taken

● only as much needed?

● a small portion?

● a portion that doesn't substitute?

● more than needed?

● the whole thing?

● the heart of the work?

more fair less fair

effect on the market

● does not substitute in the market?

● does not substitute for a derivative market?

● no licenses available

● substitutes in the market?

● substitutes for a derivative market?

● licenses available (reasonable $$)

more fair less fair

other factors to consider

● public benefit? ● benefits purposes of

copyright?● good faith? ● clean hands?● attribution?

● no public benefit

● bad faith● unclean hands● no attribution

more fair less fair

add it up?

"Fair Use Visualizer" based on Field v. Google, Benedict.com

weigh it?

LQ 2012

Barton Beebe, “An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005”, 156 Pennsylvania Law Review 549 (2008)

... discipline-specific guidance: "Best Practices in Fair Use"● Media Studies Publishing● Teaching for Film & Media Educators● Media Literacy Education● Scholarly Research in Communication● Documentary Filmmakers● Music Scholarship● Dance-Related Materials● Poetry● Visual Resources Association● Story Arts● User-Generated Video● Academic & Research Libraries

Timothy Vollmer, http://www.flickr.com/photos/sixteenmilesofstring/2596569134/

more information on fair & lawful uses in teaching & research● UMass Scholarly Communication website, SOON

http://library.umass.edu/sc/● UMass Library eReserves, http://ereserves.library.umass.

edu/● Center for Social Media, Best Practices in Fair Use http:

//centerforsocialmedia.org/fair-use/best-practices● Kenneth Crews, TEACH Act (distance ed) http://copyright.

columbia.edu/copyright/special-topics/distance-education/● Copyright Office, DMCA Exemptions, http://www.copyright.

gov/1201/● STM Guidelines, http://stm-assoc.org/permissions-

guidelines/

part 3: librarians as information activists.

Information law, transformed

● Damages● DMCA (TPMs; ISP intermediate liability)● Courts & case law

○Fair use■Whittling away at Sony standard / secondary liability■Rise of transformativeness factor of fair use■ Intermediate uses / Reverse engineering

○Clickwrap licenses○First sale (Costco v. Omega)

● all driven by commercialization of copyright

the year of library litigation

● Authors Guild v. HathiTrust● Cambridge Univ. Press v. Becker (Georgia State

Univ. ereserves)● AIME v. UCLA (videostreaming)

the year of library litigation. 2.0

● Authors Guild v. HathiTrust● Cambridge Univ. Press v. Becker (Georgia State

Univ. ereserves)● AIME v. UCLA (videostreaming)

coming up:● replays of the above● Authors Guild v. Google (Google BookSearch)● Kirtsaeng v. Wiley (first sale vs. import)● ReDigi (electronic first sale)

Open Access - Responses

● Preprint archives● Self-archiving● Author addenda● Institutional repositories● Open access mandates● Library pubilshing● Open Data / Open Knowledge

Challenges

● Improving our repositories● Improving scholarly communications● Alliances● Get political● Get evidence-based

Challenges

● Improving our repositories○Educating slow-adopter faculty & departments○Extending beyond research & scholarship

■Non-journal scholarship [monographs; conferences; blogs; datasets; methods & protocols]

■Teaching & learning resources [OER]■Community outreach & service

Challenges

● Improving scholarly communications○Push journals away from requiring copyright

assignment; e.g., Nature○Peer-review process; e.g., HHMI/Planck/Wellcome○MTA reform; working with journals on their acceptance

policies, and encouraging OA-MTAs○Close review of licensing and DRM

Challenges

● Get political○Defending & enhancing fair use, esp. transformative

use, in digitization○Fighting off legal challenges to OA & over-zealous

copyright assertions (e.g., GSU case)○Orphan works○Copyfraud (e.g., ProQuest)○Section 108 reforms, esp. digital archives○Author reversion rights○CFAA reform : no criminal enforcement of licensing○ legislation in response to Kirtsaeng

Challenges

● Get political (cont’d)○DMCA anticircumvention rulemaking○More OA mandates & support○Attribution rights○ International issues, e.g., right to knowledge

Challenges

● Get evidence-based○Chilling effects of IP regimes on research? ○Economic costs of IP regimes – transaction costs,

opportunity costs? Costs of copyright compliance imposed on academia?

○Scholarly-impact studies of OA? Benefits of OA to interdisciplinary work? community-building?

Targets & Issues

● Digitization: Embedded content, archives, born-digital

● Holistic approaches to copyright and other information practices: Cultural rights, subject interest rights (privacy), ethics

● Vendors & Outsourcing: Interlocking layers of policies & practices

Support & Education

● Faculty, incl. Adjuncts, Postdocs, etc.● Policy-making staff, e.g., General Counsel;

Administration● Education support staff (IT, R&D, etc.)● Librarians & library staff

Unique role of the library

● Our institutional mandate: promote scholarship● Our legal role: represent users and educators● Our political position: we are mom & apple pie

“It's one of those life skills now, right? When you graduate from high school or college, you should know how to read a map, you should know how to use GPS, you should know a little bit about copyright. …. And if you are a librarian, you must become an expert in copyright; an educator, an activist, and an advocate.”

Maria Pallante, remixed:

more information

● lquilter @ library.umass.edu