Category Archives: Fair Use

More about the FAIR USE Act

Several weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.

Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act.  In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.”  Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.

But the FAIR USE Act does not entirely ignore fair use either.  Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.”  What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use.  Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.”  This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment.  One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use.  Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.

The big question for the FAIR USE Act is whether it has any chance of passage.  Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress.  Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor.  The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around.  Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.

Listen here to a podcast (optomistically called “The beginning of the end for the DMCA”) of the interview with Rep. Doolittle about H.R. 1201 , the FAIR USE Act. 

YouTube, Copyright and Innovation

When Viacom filed a copyright infringement lawsuit against YouTube, which is owned by Google, we all knew that the fur would fly. No one is neutral about Google these days, and YouTube has also created fierce partisans in the copyright wars.

It is quite possible that the lawsuit is simply a bargaining tool in the fight over the licensing payments that Viacom wants from Google, but, if the case goes to trial, the real issue will be how far copyright law can be used to prevent technological innovations that depend, to some degree or another, on using copyrighted material without permission. This debate is at least as old as the photocopier and the VCR, but the terms of the rough deal stuck by the Supreme Court in the 1984 Betamax case are still being contested.

Several newspaper and online columns over the weekend cast interesting light on this debate .

In the New York Times on Sunday (March 18), Larry Lessig of Stanford Law School makes the important point that Viacom is trying to use the courts to get around the compromise on innovation versus infringement that was established by Congress when it passed the Digital Millennium Copyright Act. The DMCA created a “safe harbor” for ISPs that merely hosted infringing material on their servers without specific knowledge of the infringement, so long as they act according to prescribed procedures once they have such knowledge. Now Viacom, emboldened by the Supreme Court decision in the Grokster case, is trying to revise that compromise through the back door, using the Courts new “inducement” theory of secondary copyright liability to undermine the policy Congress enacted.

Many predicted that the Grokster decision would have a chilliing effect on technological innovation; Lessig’s column suggests that the Viacom suit is a huge block of ice to contribute to that chill.

Along the same lines, Fred von Lohmann of the Electronic Frontier Foundation writes about all of the new technologies that might not have seen the light of day if copyright holders could sue based on the potential that users of the new innovation could infringe those copyrights. Even if one excludes the hyperbolic inclusion of reading glasses on his list, von Lohmann makes a powerful point — photocopiers, VCRs, iPods and even public libraries might be subject to restrictions and per-use fees in the world Viacom envisions.

James Boyle, in a column in the Financial Times, tries to put this debate in perspective by noting that, although it is sometimes difficult to feel sympathy for the ravenous giant that Google has become — it is no longer, as Boyle says, “a helpless start-up” — the interests that Google has pursued in its copyright conflicts often line up with the public interest. His reminder that the issues are much more complex than simply yelling “stop thief” at YouTube and Google (a tactic which Google’s rival Microsoft tried in a recent speech and op-ed), and that we as consumers of intellectual property also have an important horse in this race, are welcome indeed.

Fair Use Act introduced to rein in the DMCA

Yesterday an important piece of legislation was introduced into the House of Representatives by Congressman Rick Boucher (D-VA) and two co-sponsors (one Democrat and one Republican, for those who keep score).

The Freedom and Innovation Revitalizing US Entrepreneurship Act, in spite of its awkward title intended to create the acronym FAIR USE Act, is an attempt to mitigate the negative impact of DMCA anti-circumvention rules on education, among other activities. Note that it is not a full-scale incorporation of fair use as a DMCA exception, which would create furious opposition, but a more limited attempt to improve the situation for education and for libraries.

Last fall, the Library of Congress approved an educational exception to anti-circumvention for the first time — a narrow rule permitting film and media professors to circumvent security measures in order to make compilations of film clips for classroom use. The new exception lasts for three years, after which it would either “sunset” or have to be renewed. The legislation proposed by Rep. Boucher would make all of the current six exception to the DMCA permanent.

More importantly, this bill would expand the scope of exceptions to the DMCA in ways that would really improve the climate for educational use of technology. The film clip exemption would be expanded to embrace all classroom compilations, not just those in film and media studies classes. Circumvention would also be allowed in order to gain access to public domain works, thus preventing commercial interests from “locking up” content that ought to be available for all to use. Finally, it would allow libraries to circumvent technological protections for purposes of preservation, helping to ensure that digital content will not be lost as technology changes.

This bill has been referred to the House Judiciary Committee, and its full text is not yet available on THOMAS, the Library of Congress database for tracking legislation. So stay tuned for further information and updates. But even at this early stage it is safe to say that passage of this bill would be an important step for instructional technology and library preservation of digital works, and it deserves our strong support.

Know Your Copyrights

The Association of Research Libraries offers a concise and clear brochure, Know Your Copyrights, that stresses multiple opportunities to use copyrighted materials in the classroom. It is intended to emphasize the positive things that classroom instructors are allowed to do with copyrighted material, employing the various teaching exceptions built into copyright law. It is an ideal resource for classroom instructors who want to quickly comprehend what they can do, instead of focusing on what is not allowed. The link on the title above offers several ways to download this helpful brochure.

Publishing recordings of student performances

Q – Students in my language class are doing performances of plays and recitals of poetry that are being recorded. May I place these recordings where students in the class can watch them repeatedly to help reinforce the learning? Can I put them on the open Web to showcase my students’ talent?

This is a fairly complicated question, since it involves four separate elements.

First there is the issue of when the material being performed was published. Anything published before 1923 is in the public domain and can be performed, recorded and distributed freely. After 1923 there is a complex set of rules (see chart here) that determine whether something is still in copyright protection. Although much material published between 1923 and 1963 has in fact passed into the public domain, for simplicity sake we will assume here that such material is still protected.

The second element to consider is the genre of the material. The TEACH Act, which makes transmission to students in the class possible, distinguishes between performances of dramatic and non-dramatic works, with the former subject to more limited use. When the TEACH Act applies, only limited portions of a dramatic performance can be transmitted, while all of the performance of a non-dramatic poem, for example, is permitted.

Next is the issue of to whom the transmission is made available. If only students registered for the class can view the recordings, the TEACH Act applies. This means that we can use material that is protected by copyright as long as the specific requirements of that law are met. When the general public is the recipient, however, there is no exception that is likely to allow transmission of a performance of a protected work, so permission would be necessary. Performances of works no longer in copyright can be transmitted freely to either group.

Finally, it is necessary to be concerned about the privacy of the students whose work is being recorded. Those students have a right to protect the privacy of their educational records, including a recording of their classroom work. Although transmission to other students in the class probably does not endanger this privacy, if performances are available to the general public it is necessary to get a signed release form from each student whose work is recorded.

This chart provides a schematic overview of the various possibilities:

Available only to students registered in the class

Available to the general public via the Internet

Poetry published in 1923 or later.

OK, based on TEACH Act rules re. non-dramatic performances

Only with © permission and a written waiver from the student(s) involved.

Poetry published before 1923.

OK (public domain)

OK with a written release from the student(s) involved.

Drama written in 1923 or later.

Limited portions only, based on TEACH Act rules re. dramatic performances

Only with © permission and a written waiver from the students involved.

Drama written before 1923.

OK (public domain)

OK with a written release from the students involved.

The general message to be gleaned from this analysis is that it is quite possible to use recordings of student performances, even on the open Web, provided that material is carefully selected and the students and the uses are planned for in advance.

Digital video in a Blackboard course site

Q – Since I am allowed to show a video in class to my students, can I also put a digital version of that same film into my course Blackboard site where enrolled students can watch at their convenience?

The two situations really are not the same. Digitizing a film makes an additional copy of that work which is not created when you simply show the film in class, and that digital copy, because it is so cheap and easy to distribute over the internet, poses a real threat to the copyright holder’s interests.

For this reason, the teaching exception that allows you to put film clips into a course management site – the TEACH Act – is more restrictive than the face to face exception.

The TEACH Act is intended to facilitate distance education, and it applies to both fully distanced courses and “hybrid” courses, where classes meet together and also use content placed in a course management system. It allows the “transmission” of digital works only in systems that are restricted to students registered in the class. It permits distribution of “reasonable and limited” portions of films, provided that reasonable steps are taken to prevent students from making more copies or retaining a copy of the film clip beyond the duration of the class.

This means that only portions of a film can be digitized for inclusion in a Blackboard site. The amount used should be no more than is necessary to accomplish the pedagogical purpose, and must always be less than the whole. In order to prevent subsequent copying and distribution, streaming technology should be used for these film clips.

Before converting a film clip from analog format to digital for inclusion in a course management system, it is important to determine if a digital copy is available for purchase at a reasonable price. Only convert from analog if such a digital copy is either not available or is protected by an electronic copy protection system that prevents the use of a digital film clip.

The TEACH Act imposes some other conditions on the educational use of digital transmissions, some of which must be met by the institution rather than the individual instructor. North Carolina State University has developed a very useful Teach Act toolkit to help you understand and implement this exception to copyright law.

Scanning to add to a Blackboard course site

Q – Are there rules about what articles and other text I can scan myself and make available to students using my Blackboard course management website?

Yes. Every use of copyrighted material in a course management website should be evaluated as a fair use. When a fair use analysis does not support the use, either permission should be sought or some other material that is not subject to copyright substituted. In general, material that could not be used in print without permission also may not be used in a course web site without permission.

Fair use is a balancing test, and there is no certain way (short of a law suit) to know that a particular use is a fair use. To address this uncertainty, the copyright law provides that when employees of a non-profit educational institution make a good faith judgment about fair use, they are protected from most of the damages that a copyright owner could collect if they are found to be mistaken. So thinking about fair use and making a reasoned and defensible decision about it, is very important.

When we make a fair use determination, we have to balance four factors. No one factor, nor any specific combination of factors, is decisive in this analysis; we simply look at all four and decide if the overall balance favors fair use or if it points us toward seeking permission. It is generally agreed, however, that the first and fourth factors usually carry the most weight in the analysis.

The first factor is the purpose and character of the use. Educational uses favor a finding of fair use, whereas commercial uses count against fair use. Nevertheless, even a commercial use may be found to be fair if it is transformative, which means that it creates a new work with its own social value out of materials borrowed from the original. Comment and criticism, as well as parody, are often regarded as transformative uses.

The second factor looks at the nature of the original work. It is easier to make a fair use of factual or non-fiction material than of highly creative work. Also, unpublished work gets stronger protection, so that fair use, while still possible, is less likely.

The third factor is the amount of the original work that is used; the more of the work that is taken, the less likely a finding of fair use is. The best practice is to use no more of a copyright-protected work than is necessary for the educational purpose you are pursuing. Please note that the library’s electronic reserves system suggests that no more than 10% of a whole work should be used in order to comply with fair use. It is also important to know that this factor may count against fair use if the “heart” of a work – its central message or point – is taken, even if the percentage of words copied is quite small.

The fourth factor is impact on the market for the original. In the context of course management systems, this means that scanning and distribution of articles or portions of books should never be used to substitute for having students purchase the original work. Such distribution should only be used for short readings from books that would not be assigned for purchase if the Blackboard system were unavailable. If a book is out-of-print but still in copyright protection and students will need to read a large portion of it, permission should be sought.

A Fair Use Checklist is available for help in making a fair use determination, as is a detailed discussion of the fair use factors from the University of Texas. You can also find more fair use scenarios for course management systems from UNC.

Copying readings for students

Q – I have two journal articles that I want every student in my class to read. May I make enough copies for everyone and hand them out? What about putting them in the Library’s e-Reserves system? The Library subscribes to both of the journals from which the articles are taken.

Both of the suggested uses seem like fair use. But it is important to stress that fair use, which is an exception to copyright’s prohibitions that allows for socially desired uses, is very dependent on the specific facts of a situation. Without complete facts for each situation, any assessment of fair use must be tentative and illustrative only

The fair use exception to copyright allows for copying and distribution for a variety of uses. It lists several exemplary uses, including “multiple copies for classroom distribution.” Although this seems pretty clear, over the years publishing industry representatives have convinced academics to agree to some pretty restrictive guidelines (the guidelines are just that, they are not the law). The guidelines suggest that making
multiple copies and distributing them in class is appropriate only when the copied selection is brief and the use is spontaneous. So the first question is, are you copying only a single article from each of two publications? If that is the case, is this a one time use prompted by the fact that the articles fit very well into the current classroom topic? If
both answers are yes, brevity and spontaneity both apply and you are squarely within fair use.

These guidelines, however, especially that regarding spontaneity, are too restrictive for application to all academic situations, both because they over-interpret the law
and because they limit educational uses too much. The Perkins Library system has adopted an e-Reserve policy that does not include the spontaneity guideline. In other words, we allow articles to be put into the e-Reserve system even if they have been used in previous semesters and are not simply one-time reactions to specific classroom conditions. We believe this is still fair use because of the purely educational purpose
of these e-Reserves and because they do not have a substantial effect on the market for the original, since because only small portions are used, the material would not be required for purchase even if it were not available on reserve.

The bottom line, then, is that if these are single articles from journal issues (rather than photocopies of entire issues, for example) the library would likely put them into the e-Reserve system for you. If you are going to use the articles in subsequent semesters, that is probably the best way to go, since each copy is then made by an individual student for
his or her own personal use, rather than all being made and distributed by you. But in the meantime, making the copies and distributing them this semester seems like a fair use.

One more point is very important. If Duke already subscribes to an online database that contains either of these articles, the best practice by far is to simply link to that online version out of a course website or Blackboard page. Since the link will only work for authorized students, we will be complying with our license obligations and not posing any risk to the copyrights involved.

Writing an encyclopedia article

Q. I am writing an encyclopedia article and want to cull some facts from earlier articles on the topic. I will also quote a couple of passages from the same sources. Is there a copyright problem?

Facts are not protected by copyright law. The date or the place of my birth, for example, are facts in which I can not claim any copyright, nor can any person who writes my biography. In so far as you are simply harvesting facts from various sources and repackaging them, no copyright issue is raised.

On the other hand, the expression of a fact can be protected by copyright law. An author would have a copyright interest in a specific sentence recounting my birth, and that sentence can not be directly copied without infringement. So you should avoid copying the expression of the facts that you are harvesting.

One complication of this distinction between fact and expression is the “merger” doctrine, which says that when a particular fact can reasonably only be expressed in one way (so that fact and expression “merge”), no copyright in that expression will be recognized. A plain statement that “John F. Kennedy died in 1963” would be an example — there is little creative about it and the expression really does merge with the fact. On the other hand this sentence — “JFK’s assassination in 1963 was the tragedy that defined the second half of the century” — surely does contain enough original and creative expression to be protected.

If your use of facts gathered from other sources does not copy protected expression, even if it occasionally repeats some uncreative expression that merges with the bare facts reported, there is no copyright issue at all. The citation of the sources from which the facts were gathered is, of course, good academic practice, but it is not required by copyright law.

When you quote or paraphrase a judgment, opinion or estimation, however, you are certainly in the realm of copyright protected expression. If you paraphrase, copyright does not enter the picture, because the expression is not being copied. Plagiarism, of course, might be an issue, and you address it by citing the source. If a direct quotation is used, so that expression is copied, fair use is the exception that prevents an infringement of copyright. The use of small segments of protected expression for the purpose of research and scholarship is a universally recognized instance of fair use and authors rely on it all the time. Only when longer quotations, diagrams, pictures or data sets are copied does it really become necessary to get permission. In doubtful situations, publishers will usually err on the side of caution and want you to obtain permission, even when these citations are probably fair use.

Copyright exceptions for teaching

There are three exceptions to the exclusive rights in copyright that help serve educational needs:

Face-to-face teaching – Section 110(1)

Allows performance or display of protected material in a face-to-face teaching setting.

Must be in a classroom and at a non-profit educational institution.

Does NOT allow copying. This is an exception to the exclusive rights of performance and display, but not the right of reproduction.

Copying may still be allowed by fair use, however.

Performance and display in the classroom must employ a legally obtained copy – no “bootleg” copy is eligible for this exception, but borrowed copies are OK.

“Transmission” to registered students – Section 110(2), a.k.a. The TEACH Act
Allows digital copies in course management systems under a specific set of conditions.

Text and images may be transmitted (displayed) in amounts comparable to in-class teaching.

Music and video may be used in portions; entire songs may be used if “non-dramatic.”

Access must be restricted to students registered in the course, and notice that the material is protected must be given.

Technological measures to prevent the material from being retained after the course is over or copied to others are required. Streaming of music and video is a good way to meet this requirement.

The institution should have policies and educational programs about copyright in place to take advantage of this exception.

Fair Use – Section 107

A flexible exception that allows socially valuable uses of copyrighted material, including educational copying.

Fair use applies in many situations, but its application is never certain. A good faith decision in each situation is important.

Four factors are balanced to determine fair use:

  1. The purpose of the use should be for non-profit education. If the use adds to the original in some creative way (like commenting on a poem or making a parody), the fair use argument is stronger.
  2. Factual material is more susceptible to fair use; creative work like music and art gets stronger protection. Unpublished work also gets more protection
  3. Use only that amount of the original work that is necessary to accomplish the educational purpose.
  4. Avoid uses that substitute for purchasing available copies; damaging the market for the original counts heavily against fair use.

 

For a quick overview of what you can do with copyrighted material in the classroom, see the Know your Copyrights brochure from the Association of Research Libraries.

For more information about fair use, see this illustrative use case, the fair use checklist from IUPUI and/or the discussion of the four fair use factors from the University of Texas.

For more information about the TEACH Act, see the TEACH Act Toolkit from North Carolina State University.