fair use higher ed

Pat Aufderheide Center for Social Media American University

FAIR USE IN TEACHING & LIBRARIES:THE BEST PRACTICES MODEL

PREFACE• I am not a lawyer, and do not offer

legal advice in individual cases

• This is not about rules, but about reasoning; no shortcuts

• It’s not about Sec. 110, educational exemptions or Sec. 108, library exemptions

IT’S ABOUT…

• How related communities employ fair use;

• What you can borrow from them;

• And what librarians are doing to help you further.

IT COMES FROM...• The Fair Use Project

• Five years of work with Washington College of Law

• Funded by MacArthur, Rockefeller, and Ford Foundations

• Co-principal investigator: Prof. Peter Jaszi (pjaszi@wcl.american.edu)

THE PURPOSE OF

COPYRIGHT

ONE PURPOSE :

TO PROMOTE THE CREATION OF CULTURE

By:

• Rewarding creators with limited monopoly

• Encouraging new makers to use existing culture

WHY BALANCE?

• All culture created on existing culture (we used to know that)

• The First Amendment (no censorship)

BIGGEST BALANCING FEATURE:

FAIR USE legal, unauthorized use of

copyrighted material--under

some circumstances

FAIR USE legal, unauthorized use of

copyrighted material--under

some circumstances

HOW WE FORGOT

BALANCE:• Copyright term extension

• Default copyright

• Punishing penalties (statutory damages)

• Large content holders’ aggressive tactics

DECADES OF MISINFORMATION

• Guidelines end up as limiting rules

• Corporate mis-education of users

• Tyranny of self-appointed experts

GOOD NEWS…• Judges love

balancing features

• Supreme Court upholds term extension because fair use exists

• Fair use judicial interpretation has greatly shifted in last 15 years

INTERPRETING

FAIR USE

THE “FOUR FACTORS”

• Reason for the use

• Kind of work used

• Amount used

• Effect on the market

PLUS…

Custom and practice of individual creative communities…

...especially when well-documented

AND, IN THE LAST 15 YEARS…

• Transformation

• Amount related to transformative purpose

Judges focus on

JUDGES ASK:

• Did you transform the use?

• Did you use the appropriate amount to satisfy the transformative use?

FEAR…• Will I get it wrong?

• Will I get sued?

• Will my boss/general counsel client get angry?

BEST PRACTICES

EDUCATION

• Knowledge of the law

• Awareness of problem

• Articulation of consensus around fair use

COMMUNITIES INTERPRET FAIR USE:

• Documentary filmmakers

• Scholars

• Media literacy teachers

• Online video

• Dance collections

• OpenCourseWare

DOCUMENTARY

RESULTS:• TV programmers air films

• New kinds of films

• All insurers of errors and omissions insurance now accept fair use claims

• Lawyers use the Statement to build their practices

MEDIA LITERACY

TEACHERS

MEDIA LITERACY

CATEGORIES• Teaching with copyrighted material

• Using copyrighted material in curriculum materials

• Circulating curriculum materials with copyrighted material in them

• Student use of copyrighted materials in their work

• Circulating student work

ONLINE VIDEO

ONLINE VIDEO CODE

• Comment/critique

• Illustration/example

• Accidentally/incidentally

• Preserve/recall

• Discuss

• Collage

DANCE COLLECTIONS

PRESERVATION

Transferring holdings to new formats (fair use better than section 108)

EXHIBITION

Using holdings in public displays/exhibits

Capturing copyrighted material in recorded presentations (e.g. podcast of the event)

RESEARCH

For academic study, including “digital ILL” (better than section 110)

Allowing public access to digitized materials on a website

OPEN COURSEWARE

SITUATIONS

• Incidental use • Critique and

analysis• Illustration• Demonstration(sound familiar?)

AND WHAT ABOUT

E-RESERVES?Links are better than digital reproduction BUT...

non-text/hard-to-find material may justify fair use.

TEXACO DECISION (1992)

OK to reproduce copies of articles received from a corporate service for Texaco

employees?

NO, because…Not transformative.

TRANSFORMATIVE

FUNCTIONS?

• Assembling research for a project

• Online research-discussion site

• Others?

Coming Soon: Code of Best Practices in Fair Use for Research Libraries

Categories:• Scholarship

• Teaching

• Preservation

• Exhibition

• Disabilities

AVOID PRE-EMPTION

• Many contracts with providers pre-empt fair use

— Scope of use

— Exclusion of fair use

• Often, contracts can be tailored

• Read the fine print!

Resources

• Our new book, Reclaiming Fair Use

• Center for Social Media web resources

•Codes

•Teaching tools

•Videos

12/17/09

FAIR USE:

Practice Makes Practice

Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.

Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.

THANK YOU!

Prof. Peter JasziMacArthur, Rockefeller, Mellon and Ford Foundations

CONTACT INFO

Pat Aufderheide Center for Social MediaSchool of Communication American University Washington, DC paufder@american.edu202-885-2069