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Fair Use in the Traditional Classroom and Online

SettingsFrank Lancaster

UT Office of the General CounselPresented at The University of Tennessee Martin

March 12, 2015

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Introduction

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What is a Copyright?

• A copyright is the legal right to control original expression – to exclude others from making copies (it is literally the “right” to make “copies”).

• A copyright owner has the exclusive rights (subject to specific exceptions) to:o Reproduction (Making Copies)o Performance and Displayo Distribution (Publication)o Creation of Derivative works (Adaptation)

Example – turning a book into a movie

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Constitutional Basis of Copyright Law

Article I, Section 8, Clause 8: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.”

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Copyright Policy

• Purpose of copyright law: Benefit the public• Method of achieving the purpose of copyright

law: Incentivize creators to create by giving them a period of exclusive right to profit from their creations

• Copyright law is an ever-changing compromise/optimization between these competing interests

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Copyright Protection

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What Does Copyright Law Protect?

• Copyright protects expression – not facts or ideas

• What is protected is how you say it, not the substance of what you say

• (Ideas can be protected by patent law if novel, useful, and non-obvious)

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Protectability Requires Originality

• Key to Protection: Originality

• Lenient standard Independent Creation = Non-Copied A Modicum of Creativity – “[T]he requisite level of

creativity is extremely low.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991).

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When Does Copyright Protection Start?

• A protectable expression is protected from the instant it is fixed in a tangible medium of expression

= Recorded in some concrete wayFor words – usually typed or written down

• Registration with Copyright Office and Notice (© – the “C in a Circle”) are not required for protection

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Use of Copyrighted Materials

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In General – Be Careful of Copying

• Always think before you copy something• Just because you can – that does not mean

you may• Things on the Internet are not in the Public

Domain just because they’re on the Internet.

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Digital Millennium Copyright Act

• 1998 Digital Millennium Copyright Act (“DMCA”)

• Do not strip off copyright ownership information!

• Called “Copyright Management Information” or “CMI”

• DMCA makes it illegal to circumvent or tamper with technological protection measures

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Some Internet Pointers

• Use clearly public domain images and contento Note – Things published in the United States before

1923 are in the public domain

• Seek permission when in doubt

• Link instead of copying

• Be careful about Site Terms and Conditions

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Four Ways To Use Copyrighted Materials Safely/Lawfully

• Permission – 100% protection• Section 110(1) – Very strong protection for

face-to-face teaching• Section 110(2) (TEACH Act) – Fairly strong

protection for online teaching• Section 107 Fair Use – Fuzzy protection based

on case-by-case analysis

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Getting Permission

• Permitted use is always lawful• Better to get it in writing – but not legally

necessary• Most sources have an indication of whom to

asko Copyright Clearance Center (

http://www.copyright.com/)

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Library Materials – A Special Case of Permission

• Check with the UT Martin Library about materials that are licensed for classroom reproduction/posting

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Getting Permission – Sample Forms

• Columbia Forms: http://copyright.columbia.edu/copyright/permissions/requesting-permission/model-forms/

• Texas Form: http://copyright.lib.utexas.edu/permmm.html

• Michigan Form: http://guides.lib.umich.edu/content.php?pid=289569&sid=2380205

• Duke Form: http://blogs.library.duke.edu/scholcomm/frequently-asked-questions/toolkit/

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Special Rule for Face-To-Face Teaching

• Copyright Act Section 110(1) protects “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction …”

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Special Rule for On-Line Education

• TEACH Act – Copyright Act Section 110(2) – protects performance/display if:o Directly related and of material assistance to the

teachingo Under the actual supervision of an instructoro Recipients limited to enrolled studentso Use technical measures to protect against

unauthorized retention/retransmissiono University has policies/training regarding copyrighto Copyright notice to students

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Fair Use

• A copyright owner’s rights are trumped by fair use of copyrighted material

• Need botho Proper Context/Purposeo Pass Fair Use Four-Factor Balancing Test

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Fair Use – The Statute “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproductions in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

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Fair Use – Contexts

• Examples of Fair Use Contexts/Purposeso Criticismo Commento News Reportingo Teaching (including multiple copies for classroom

use)o Scholarshipo Research

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Fair Use Four Factor Test

• Fair Use Balancing Test – Look at:o The purpose and character of the use, including

whether such use is of a commercial nature or is for nonprofit educational purposes

o The nature of the copyrighted worko The amount and substantiality of the portion used in

relation to the copyrighted work as a wholeo The effect of the use upon the potential market for or

value of the copyrighted work• Georgia State Case => No One Factor Trumps

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Fair Use – Factor 1

• The Purpose and Character of the UseFavors Fair Use Weighs Against Fair Use

Educational

Non-Profit Commercial

Transformative (e.g., for comment, critique, or parody)

Simple Reproduction

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2 Live Crew’s “Pretty Woman”

• 1964 Roy Orbison Song “Pretty Woman”• 1989 2 Live Crew Rap Version of “Pretty

Woman”o Uses same melody as original Roy Orbison songo Uses some of same lyricso Other, new, lyrics satirize and parody original song

oWas this a fair use?

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Answer

• YesCampbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

• Strong protection for parody

• Recognition that you can’t do parody without some copying: “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination.”

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Gone with the Wind

• 1936 – Margaret Mitchell published Gone with the Wind

• 2001 – Alice Randall published The Wind Done Goneo The same story told from the viewpoint of a slave living

on Scarlett O’Hara’s plantationo Uses the characters, plot, major scenes – and verbatim

copies of some of the dialogue – from Gone with the Wind to criticize the novel’s depiction of slavery and the American South

o Was this a fair use?

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Answer

• YesSuntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).

• A “parody” does not have to be humorous – the key element is borrowing from another work in order to to comment/critique

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Fair Use – Factor 2

• The Nature of the Copyrighted Work

Favors Fair Use Weighs Against Fair Use

Factual/Practical Works Highly Creative Works

Published Work Unpublished Work

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Fair Use – Factor 3

• The Amount and Substantiality Used

Favors Fair Use Weighs Against Fair Use

Quantitative Copy a small amount Copy a large amount

Qualitative Copy heart of work

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President Ford’s Memoirs

• The Nation Magazine printed a portion of Gerald Ford’s MemoirsoMagazine used about 300 words of copyrighted

material – out of a 450 page book.o The part quoted was about Ford’s decision to

pardon Nixon

oWas this a fair use?

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Answer

• No – not a fair useHarper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985).

• The magazine took “the heart of the work”

• Qualitative importance (and commercial use) trumped quantitative minimalness

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Fair Use – Factor 4

• The Effect on the Market/Value of the Work

• Giving the students a copy so they don’t have to buy it – sure to flunk the fair use test.

Favors Fair Use Weighs Against Fair Use

Little or no impact on current or potential market

Affects copyright owner’s ability to sell product

Affects copyright owner’s ability to adapt work

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Fair Use and Permissions

• It never hurts to ask for permission – does not count against you on fair use analysiso Supreme Court => “[B]eing denied permission to

use a work does not weigh against a finding of fair use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 n. 18 (1993).

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Documenting/Record-Keeping

• Keep a File of Permissions• Keep a File of Fair Use Analyses

o Columbia Fair Use Checklist: http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf

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Providing Copies – Uploading PDFs to

Blackboard

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Providing Copies to Students

• Fiscal Policy FI0155

• United States Copyright Office Circular 21 – “Reproduction of Copyrighted Works by Educators and Librarians”o http://www.copyright.gov/circs/circ21.pdf

• Guidelines for Classroom Reproduction provide very little protection for copying – require “spontaneity”

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The Coursepack Case

• A commercial copyshop prepared coursepacks of readings that were sold to students at the University of Michigan

• Included excerpts of books that were 5% to 30% of the original books.

oWas this a fair use?

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Answer

• NoPrinceton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).

• Commercial use and harm to market for original books => not a fair useo Note – the vote was 8-5

• Any time someone is copying so that someone else does not have to buy the original – that’s a red flag, it’s not likely to be a fair use.

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The E-Reserves Case

• Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014) (the “Georgia State Case”).o Georgia State made materials available to

students on line, instead of hard copies on reserve in library

oWas this a fair use?

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Answer

• Sort of

• Of 75 claimed infringements, the trial court ruled in favor Georgia State on 70o On the 5 violations, a limited injunction issued: “Follow Your

New Policy”• District Court used a 10% or 1-Chapter Rule

o Court of appeals rejected quantitative safe harbor• Georgia State likely to win most/all on remand.• BUT … Georgia State has spent more than $3 Million

defending the case.

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Uploading to Blackboard

• Don’t upload materials to Blackboard for your students to use unless:– You have permission– You have performed (and saved) a written fair-use

analysis fairly justifying doing so.• Never upload materials to Blackboard for your

students to use in lieu of having them purchase the materials

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Some Resources

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Some Copyright Resources

• Website for U.S. Copyright Officeo http://www.copyright.gov/ o Copyright Circulars –

http://www.copyright.gov/circs/

• UT Office of the General Counsel Website – http://bot.tennessee.edu/counsel-copyright.html o Has Links to Columbia, Stanford, Texas

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Questions/Comments?