"fair use" of copyrighted material in a graduate medical education curriculum: pushing the...

"Fair Use" of Copyrighted Material in a

Graduate Medical Education

Curriculum: Pushing the

Electronic Envelope

Philip J. Boyer, M.D., Ph.D.

Georgia K. Harper, J.D.

9/2007

Introduction

Medical knowledge base: ever-expanding in breadth and depth

In that context, it is challenging to present a coherent and consistent "curriculum" replete with a study guide and ready access to relevant resources to meet the needs of medical students / residents / fellows in training Daily work -- autopsies and surgical pathology sign-

out Elective rotations Board preparation

While text books remain a cornerstone of graduate medical education, access to other materials is important to providing a focused yet comprehensive “curriculum” to trainees

Objectives / Methods and Materials

Objectives: Evaluation of copyright and fair use of educational

materials within the confines of graduate medical education Definition of opportunities and limitations in the use of

copyrighted materials NOT Addressed

Medical student teaching materials Software

Methods and Materials: Literature and Web-based resources were queried and

evaluated when available Virtually no reference to copyright and fair use was

identified in the PubMed archive related to GME Consultation was undertaken with education and legal staff

at the University of Texas and the University of Colorado Georgia Harper, J.D. – University of Texas at Austin

Definitions : US Copyright Code

• Subject Matter of Copyright: Copyright: 17 US Code 102(a)• “Copyright protection subsists . . . in original works of authorship fixed in

any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

(http://straylight.law.cornell.edu/uscode/html/uscode17)

Definitions : US Copyright Code



• Ownership of Copyright: Copyright: 17 US Code 201(a)• “Initial Ownership. Copyright in a work protected under this title vests initially in the

author or authors of the work.”


Definitions: US Copyright Code





• Limitations on Exclusive Rights: Fair Use: 17 US Code 107• “. . the fair use of a copyrighted work, including such use by reproduction

in copies . . . or by any other means . . . , for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright .”


Four Stack Copyright Analysis

Material In Question Examples How to Proceed

1. Materials authored by participating

faculty members

- Powerpoint files from talks- Word documents from articles- PDFs of published articles- Tables from text books

- Free to use- Provide acknowledgment / citation as appropriate

2. Materials already licensed - PDF from licensed journal- Diagram from textbook- Chapter from textbook- Materials from licenced Web rescources

- Free to use- Provide acknowledgment / citation

3. Materials available from the Web for free - Implied license - Expressed license

- Text- Images- Other content (whole slides)


4. Materials for which there is no license and not freely available off of Web site

- Article from journal not licensed by University- Charts/tables of uncertain origin

- 4 Factor Fair Use Test- Ask permission: Author / publisher- Can use while permission is being

sought- Provide acknowledgment / citation

Author’s Own Work



1. Materials authored by participating faculty members










- 4 Factor Fair Use Test - Ask permission: Author / publisher- Can use while permission is being


The Fine Print: Fair Use and Licensing

License Rights Libraries negotiate for access to journals for use by patrons

"The library has paid to provide every single student and faculty member on the campus access to and use of the journal content"

With electronic links -- “students and faculty members have an easier time finding resources to which they already have rights“

Similar reasoning is applied regarding implied licensing in the purchase of and use of content from of a textbook – hard copy or electronic

A combination of fair use and implied license (e.g. in the case of the articles available on publisher's Web sites) will cover educational activities

(Georgia Harper, JD, Crash Course in Copyright, University of Texas,

http://www.utsystem.edu/OGC/INTELLECTUALPROPERTY/cprtindx.htm)

Licensed Work: And Parts (with attribution)

Licensed Works: Electronic Textbooks

Author’s Own Work

Diagrams

Supplement: Licensed Work

(Dalkilic I. Current Opinion Genetics and development. 13:231, 2003.)

Licensed Work: Parts (with attribution)


Braak & BraakStage:

Neurofibrillary Tangles

CERAD NPDiagnosis:

Neuritic Plaques

Current: Web Content

http://www.endotext.com/neuroendo/neuroendo3/neuroendoframe3.htm

Current: Web Content

(http://www.neuro.wustl.edu/neuromuscular/)

Current: Whole Slide Imaging

http://www.path.uiowa.edu/virtualslidebox/

Copies of Useful Tables

No License / Not Freely Available (example)

Four Factor Fair Use Test - 17 US Code 107(1-4)

Test Fair Use May Be Fair Use Get Permission or License

1. Character of Use - Non-profit- Educational- Criticism- Commentary- “Transformative” use

- Mixed (e.g. transformative and commercial)

- Commercial

2. Nature of Work - Factual- Published

- Mixture of fact and imaginative

- Imaginative- Unpublished

3. Amount of work used

- Small Amount - Large amount

4. Effect on market for the original work if use is widespread

- First 3 factors tipping toward fair use- No lost sales- Promotes larger work- Original is out of print or otherwise unavailable- No ready resource to ask permission- Copyright owner unidentifiable

- Mix – first 3 factors in favor of fair use; but payment mechanism is well established

- Competes with or reduces sales of original work- Avoids payment for permission (royalties) in an established permissions

market

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include”

Diagrams of Sometimes Uncertain Origin

Uncertain Origin

Institutional Approach: Risk Tolerance

Risk Tolerance

Tolerant Adverse

Need toSeek

Permission

Rarely

Always

Conclusions An ever-expanding wealth of reference materials is available in an electronic

format Compilations can be made accessible to meet defined educational goals



AND Comply with fair use and licensing restrictions




Four stack copyright analysis and four factor fair use tests provide a mechanism to assess materials so that Useful licensed materials can be made available to “students”

Usually providing a small part of a bigger work Key Issue: Access limited to define user group by IntrAnet login Availability is for limited time (e.g. during specific rotations or during

residency)






residency)AND

Authors rights are respected and contributions acknowledged

Conclusions An ever-expanding wealth of reference materials is available in an electronic format

Compilations can be made accessible to meet defined educational goals AND

Comply with fair use and licensing restrictions



residency)AND

Authors rights are respected and contributions acknowledged

Pragmatic and optimal to give credit where credit is due AND cite Copyright law Include author, source, and other attribution material whenever known Copyright Notice: Limitations on Exclusive Rights: Reproduction by Libraries and

Archives 17 US Code 108(f)(1) - no liability for copyright infringement

Conclusions An ever-expanding wealth of reference materials is available in an electronic format

Compilations can be made accessible to meet defined educational goals AND

Comply with fair use and licensing restrictions


Usually providing a small part of a bigger work Key Issue: Access limited to define user group by IntrAnet login Availability is for limited time (e.g. during specific rotations or during residency)

AND Authors rights are respected and contributions acknowledged

Pragmatic and optimal to give credit where credit is due AND cite Copyright law Include author, source, and other attribution material whenever known Copyright Notice: Limitations on Exclusive Rights: Reproduction by Libraries and Archives 17 US Code 108(f)

(1) - no liability for copyright infringement

Pragmatic to interpret rules conservatively and seek permission if “fair use” rights are hazy and author / publisher is known (and alive) and easily queried Can use materials while seeking permission Institutions would be well served to have established individuals who seek permission in a uniform

and documented manner

Collaborators

Georgia K. Harper, J.D.

University of Texas At Austin LibraryAustin, TX

University of Colorado, Denver, CO

B.K. DeMasters, M.D.

The Fine Print: Fair Use and Licensing

Copyright and Fair Use: Limited information is

available about “copyright” and "fair use“ of copyrighted materials in the academic settings

Interpretation challenging Is an IntrAnet site

"Coursepack" "Distance learning" "Electronic Reserve"



Methods and Materials

Literature and Web-based resources were reviewed. Consultation was undertaken with education and legal staff at the University of Texas and the University of Colorado.

Access: To meet “fair use,” licensing, and “intellectual property”

concerns, materials are available only to individuals logged into the UTSW IntrAnet

Introduction

Medical knowledge base: ever-expanding in breadth and depth In that context, it is challenging to present a coherent and

consistent "curriculum" replete with a study guide and ready access to relevant resources to meet the needs of medical students / residents / fellows in training Daily work -- autopsies and surgical pathology sign-out Elective rotations Board preparation

While text books remain a cornerstone of graduate medical education, access to other materials is important to providing a focused yet comprehensive “curriculum” to trainees: Articles Diagrams and tables Electronic textbooks

An ever-expanding wealth of digital and digitizable materials is available Faculty identification and vetting of key / critical materials

provides a uniform experience for trainees

Licensing Royalties Acknowledgment Permission: Informal or formal permission

Licensed Work

Hard Copies of Old, “Classic” References Copied (suboptimally) and Passed Out

PubMed: Lots of References, Some Available as PDFs, Some Not

Licensed Work

Hard Copies of Old, “Classic” References Copied (suboptimally) and Passed Out

PubMed: Lots of References, Some Available as PDFs, Some Not

Key Reference NOT Available as PDF

Interests / Goals

• Assess how IntrAnet tools can help meet newly-implemented ACGME training criteria

• Cover objectives / content published by • NBME• ABP (American Board of

Pathology)• ADASP / PRODS (Association

of Directors of Anatomic & Surgical Pathology, Program Directors Section, Association of Pathology Chairs)

• GRIPE (Group for Research in Pathology Education)

• Other groups• Evaluate legal use of

copyrighted material• “Fair Use”

*

• Develop mechanism to provide easy access to a wide range of teaching materials within a subspecialty area• Audience: medical

students, residents, and fellows who rotate through a subspecialty pathology area

• Incorporate “curriculum” wrapper around content• Objectives• Pre-test• Content• References for further

study• Vetted by

subspecialty area faculty

• Post-test

Definitions





• Limitations on Exclusive Rights: Fair Use: 17 US Code 107• “. . the fair use of a copyrighted work, including such use by reproduction

in copies . . . or by any other means . . . , for purposes such as . . . teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright .”

• Limitations on Exclusive Rights: Reproduction: 17 US Code 108 (f)(1)• “Nothing in this section . . . shall be construed to impose liability for copyright

infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law.”(http://straylight.law.cornell.edu/uscode/html/uscode17)

Simplified Approach

- Someone “owns” academic work covered by “Copyright”- Sometimes you are the owner

- “Fair use” lets you use Copyrighted materials - Within defined academic boundaries

- Sometimes you have to ask for permission or pay licensing fees to use copyrighted materials



"fair use" of copyrighted material in a graduate medical education curriculum: pushing the...

Documents

ownership of copyright

evaluation of copyright

infringement of copyright

us code

classroom use

copyrighted work

acopyright protection

original works of authorship