ROPES & GRAY LLP

Copyright Exceptions & Fair Use

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Introduction

• Nate Kurtis, Associate– BS, AB, MBA, JD– Use, licensing and other transactional

applications of intellectual property

• Jessica Alfano, Associate– BS, BA, JD– Transactional applications of

intellectual property and regulatory work for life sciences companies

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Disclaimer

This presentation is provided for informational purposes only. It does not constitute legal advice and should not be relied upon as legal advice. For specific legal advice, please consult with an attorney.While every effort has been made to provide accurate and up to date information in this presentation, laws and rules vary by state and country, and change over time. You should verify the current local rules and laws that govern your legal issues.

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Agenda

• Brief Copyright Background Summary• Copyright Exceptions• Fair Use • Creative Commons

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What is Copyright?

• System of Rights to Exclude• Rights Granted in the Public Interest

– Constitutional Basis:– Private Incentives v. Public Benefit

• Traditionally Common Law, Increasingly Statutory– Title 17 of the United States Code

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Title 17 of the United States Code

Sec. 101 Definitions

Sec. 102Protectibility

Sec. 105

Sec. 106 ExclusiveRights

Sec. 107Exceptions

Sec. 120

Reproduce

Distribute

Perform

Display

Create Derivative Works

Digital Retransmission

Do or Authorize The Doing

Sec. 200+ Transfer & AssignmentSec. 400 + RegistrationSec. 500+ Litigation

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Agenda

• Brief Copyright Background Summary• Copyright Exceptions in the Academic

Context• Fair Use• Creative Commons

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Exceptions to Copyright

• Fair Use Defense (§107)• Reproduction by Libraries and Archives

(§108)• Course Use (§110(1), Circular 21)• The TEACH Act (§110(2))• Others

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Libraries and Archives

• A library or archive may create and distribute one copy if:– No direct or indirect commercial advantage– Open to the public or researchers in a set field– Includes a copyright notice

• Three copies for archival purposes• Only applies to isolated and unrelated

reproductions and distributions, not systematic or concerted.

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Course Use• Section 110 (1)

– Classroom or instructional performance or display of a lawful copy of a work by an instructor or pupil in the course of face-to-face teaching activities of a nonprofit educational institution is not infringement

• Circular 21• One copy for instructor for research and prep work• One copy per pupil for classroom use:

– Requirements: Brevity, Spontaneity, Non-cumulative– Not a substation or replacement of the work

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The TEACH Act, Section 110 (2)

• Provides a statutory exemption to enable distance learning.– Intended to merely allow the application of the

same principles applicable to in-face teaching found in Section 110 to distance and asynchronous education.

– Intended to modernize the provisions of the Copyright Act for the 21st Century

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The TEACH Act, Section 110 (2)

• Language added under the TEACH Act:– (A) the performance or display is made by, at the direction of, or under the actual supervision

of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;

– (B) the performance or display is directly related and of material assistance to the teaching content of the transmission;

– (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to--(i) students officially enrolled in the course for which the transmission is made; or (ii) officers or employees of governmental bodies as a part of their official duties or employment; and

– (D) the transmitting body or institution-- (i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions– (I) applies technological measures that reasonably prevent-- (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;''

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The TEACH Act, Section 110 (2)

• Key Results of TEACH Act Amendments– Facilitates growth and development of digital distance

education, namely asynchronous distance education, by removing the concept of a physical classroom

– Accommodates new technologies by expanding the copyright exemption, the types of transmissions

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The TEACH Act, Section 110 (2)

• However, the language is limiting:– “[R]easonable and limited portions” of copyrighted works, other than

non-dramatic literary and musical works, and works created for mediated instructional use.

– Only available to government bodies and “accredited” non-profit educational institutions.

– Only allows transmissions to students officially enrolled in the course or to government employees as part of their official duties.

– The exclusion is limited to material whose primary market is not “mediate instructional activities” i.e. materials that is typically performed or displayed in a live classroom setting.

– Requires technological protection measures be taken to prevent retention of the work and further downstream dissemination.

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Agenda

• Brief Copyright Background Summary• Copyright Exceptions in the Academic

Context• Fair Use• Creative Commons

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Copyright Fair Use

• It is a statutory (affirmative) defense, not a permission or a limitation on scope!– Argued post infringement. – Defendant’s burden to raise and prove.

• Courts apply a fact-specific, factored analysis.– SCOTUS: “…the fair use determination calls for

case-by-case analysis, and is not to be simplified with bright-line rules.”

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Copyright Fair Use• Fair Use Factors:

– 1: The purpose and character of the use– such as criticism, comment, news reporting, teaching

(including multiple copies for classroom use), scholarship, or research

– 2: The nature of the copyrighted work– 3: The amount of the work used– 4: The effect on the market or value of the work– Key … Maybe: Is the use “Transformative”?

– Does the use supersede the original or does it add something new, with a further purpose or different character, altering the original with new expression, meaning or message?

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Copyright Fair Use

• Don’t jump to fair use!• Be very careful anytime your business

plan hinges on fair use:– It won’t prevent litigation.– Fact-specific, factored analysis does not provide

predictability of outcome.– The defense can fail.

• There is no cutting edge technology exception to copyright law!

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Copyright Fair Use

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UMG Recordings, Inc. v. MP3.com

• Fair Use?– Purpose:

• Commercial

– Nature:• Close to Copyright Core

– Amount:• Entire Works

– Effect:• Usurps Further Market

• Not Fair Use.

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Leibovitz v. Paramount Pictures

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Leibovitz v. Paramount Pictures

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Leibovitz v. Paramount Pictures

• Fair Use?– Purpose:

• Humorous commentary, but $

– Nature:• Moderate protection

– Amount:• More than required to “conjure”

– Effect:• Limited adverse effect

– Highly Transformative

• Fair Use.

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Castle Rock Entertainment, Inc. v.Carol Publishing Group, Inc.The SAT:

– 643 Trivia Questions– Back Cover:

• “Hundreds of spectacular questions of minute details from TV’s greatest show about absolutely nothing.”

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Castle Rock Entertainment, Inc. v.Carol Publishing Group, Inc.

• Fair Use?– Purpose:

• Commercial, sold the book

– Nature:• Expressive, protected

– Amount:• More than needed to comment

– Effect:• Replacing

– Repackaging, not Transformation

• Not Fair Use.

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Brownmark Films LLC v.Comedy Partners• Brownmark Films LLC Video Clip

– http://www.youtube.com/watch?v=fbGkxcY7YFU

• Comedy Partners Video Clip– http://www.southparkstudios.com/full-

episodes/s12e04-canada-on-strike– Parody begins at 7:52

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Brownmark Films LLC v.Comedy Partners

• Fair Use?– Purpose:

• A “classic parody”

– Nature:• Expressive

– Amount:• Minimum amount needed to

comment

– Effect:• Limited or none.

– Highly Transformative

• Fair Use.

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Kelly v. Arriba Soft Corporation

• Fair Use?– Purpose:

• Commercial, but not highly exploitative

– Nature:• Creative, published, protected

– Amount:• Necessary to copy entire image

– Effect:• No harm

– Transformative –Different function • Fair Use.

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Kientz v. Sconnie Nation• Fair Use?

– Purpose:• Commercial, but

important in this case

– Nature:• Creative, published

– Amount:• Most of the expressive

elements removed

– Effect:• Not a substitute

• Fair Use

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Academic Use ≠ Fair Use

• Simply using materials in an academic context does not, by itself, mean it is a fair use.– Which is why people write and publish textbooks

and royalties are paid on bookpacks.• Princeton University Press v. Michigan Book

Services

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Academic Use ≠ Fair Use

• Neither does use in a research context:– It is not surprising that authors favor liberal

photocopying; generally such authors have a far greater interest in the wide dissemination of their work than in royalties -- all the more so when they have assigned their royalties to the publisher. But the authors have not risked their capital to achieve dissemination. The publishers have. Once an author has assigned her copyright, her approval or disapproval of photocopying is of no further relevance

• American Geophysical v. Texaco (J. Leval)

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Princeton University Press v.Michigan Document Services, Inc.

• Fair Use?– Purpose:

• Commercial

– Nature:• Creative, expressive

– Amount:• Major ideas copied, not insubstantial, smallest excerpt > 8,000

words

– Effect:• If widespread, would adversely affect the potential market.

– Not Transformative, used in same manner as original.

• Not Fair Use.

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Blackwell Publishing, Inc. v.Excel Research Group, LLC

• Fair Use?– Purpose:

• Commercial

– Nature:• Creative, expressive

– Amount:• Major ideas copied, not insubstantial amount

– Effect:• Able to undersell fee-paying competition

– Not Transformative, used in same manner as original.

• Not Fair Use.

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Cambridge University Press. v.GSU

• Fair Use?– Purpose:

• Nonprofit educational

– Nature:• Literature

– Amount:• In the aggregate, a limited amount

– Effect:• A lack of direct evidence of availability of licenses indicates that

licenses are unavailable

Fair Use

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Authors Guild, Inc. v. HathiTrust

• Fair Use?– Purpose:

• Full text search: quintessentially transformative Commercial

– Nature:• Creative, expressive

– Amount:• Entire work

– Effect:• Full text search is does not replace the original work

• Fair Use

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Diversey v. Schmidly

• Fair Use?– Purpose:

• Non-commercial, educational

– Nature:• Unpublished

– Amount:• Entire work copied

– Effect:• Completely deprived of value of the work

• Not Fair Use.

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Agenda

• Brief Copyright Background Summary• Copyright Exceptions in the Academic

Context• Fair Use• Creative Commons

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Creative Commons – Background

• A public set of licenses proffered by a non-profit organization to facilitate the sharing of copyrighted works while maintaining protections for their authors

• Provides a set of copyright licenses and tools that can be adapted to individual works

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Creative Commons

• Attribution: you must acknowledge the author of this work if you use it, and comply with any conditions they require (such as, for example, a link back to their website

• No derivative works: you can only use this work as it is. You are not allowed to adapt or modify it

• Share alike: if you create anything that is based on this work, you must share it with other people under the same license as the original work

• Non-commercial: you must not use this work, or anything based on this work, for commercial purposes

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Questions?

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Copyright Exceptions & Fair Use