Year: 2018

Fair Use Week 2018: Day Five With Guest Expert Carla Myers

best practices, copyright, fair use

Fair Use and Course Reserves: Fact and Fiction

By Carla S. Myers

Almost ten years ago I accepted a position as the course reserve manager for Bierce Library at the University of Akron. In this position I oversaw both the print and electronic reserve services, and early on I was charged by my supervisors to learn as much as I could about copyright to help ensure that the library’s reserve practices fell within the scope of the law. As I began researching the law I was a bit surprised by how much information I found on the application of fair use for reserve services. Unfortunately, it took me a while to realize that much of the information available online on this topic is deficient and propagating many myths and misconceptions regarding fair use. In turn, this flawed information was limiting the ways in which academic libraries provided reserve services to our campus communities. In this post, I’d like to address a few of the fair use misconceptions hear most often regarding reserve services.

Taking a Look at the Law

To identify the commons misconceptions related to fair use and course reserves it’s best to start with an understanding of the law itself. The fair use statute, which is found in Section 107 of U.S. Copyright Law, reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction 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—

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Common Misconceptions

Misconception #1: Fair use has specific limits. For example, fair use is limited to one chapter from a book, one article from a newspaper or periodical, or a single photo, chart, or graph from a book, periodical, or newspaper.

This misconception is tied to the third factor of fair use and, as you’ll see in the statute, there are no such limits found in Section 107. To determine how much of a work can be reused under fair use, it is helpful to know the caselaw of the statute. Examining the U.S. Copyright Office’s Fair Use Index, you’ll find cases in which the reuse of 100% of a work was considered fair use, and other cases in which reusing small portions of works were found not to be fair use. When faculty hold up a book and ask me “How much of this can be scanned and placed on electronic reserve?” I ask them to tell me how much of the work they need to use for course instruction and help them consider how this amount balances with the other three factors. When making a fair use determination it’s important to remember that no one factor on its own determines fair use, rather they all need to be considered in relation to each other.

Misconception #2: Fair use can be considered for the first semester of use only. Any subsequent use of a copyrighted work for reserve requires that you pay a license fee for the use.

There are no term limits found in the fair use statute. When a faculty member who has placed a work on print or electronic reserve under the auspices of fair use asks me about reusing the work in subsequent semesters, I encourage them to work through the four factors of fair use again to determine if any of the circumstances of their use has changed. If they have, and if their use of the work may no longer fall within the scope of fair use, we consider other options that may be available to them for making the work acessible to students. This could include the utilization of other exceptions found in the law, such as the Technology, Education and Copyright Harmonization Act (TEACH Act) found in Section 110(2) of US copyright law, linking to a copy of the work made freely and legally available online, seeking permission to reuse the work, or obtaining a license to reuse the work.

Misconception #3. Fair use can only be used to make “x” number of works available to students through reserve, and after you hit that number you must obtain permission or a license to share other works with students.

I have heard many variations of this particular misconception, including:

  • Fair use is sharing up to five photographs.
  • Fair use is sharing up to nine journal articles per class.
  • Fair use is sharing up to two chapters/readings from a particular author.

These limits are also not found in the fair use statute. Fair use can be utilized as many times as needed for each individual course, each semester. Just make sure you’re making fair use determinations on a case-by-case basis for each work being placed on reserve. The American Library Association’s Fair Use Evaluator can help you in making these determinations.

These misconceptions (and many others) arise from the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals (also known as the “Classroom Photocopying Guidelines”) that ware put forward as part of a House Report in 1976.

It is important for librarians to understand that these Guidelines hold no force of law, nor does following them provide any type of safe harbor against claims of copyright infringement. This fact has been illustrated in Cambridge Univ. Press v. Becker (the Georgia State e-Reserves Lawsuit)” in which three academic publishers, Oxford University Press, Cambridge University Press, and Sage Publishing, filed suit against officers of Georgia State University over the copying and distribution of copyrighted works through the library’s electronic reserve system. In her initial opinion on the case, Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia stated:

[T]he Guidelines establish numerical caps on how many words a teacher may copy and still stay within the safe harbor. This brightline restriction stands in contrast to the statutory scheme described in § 107, which codified a multi-factorial analysis in which no factor is dispositive. Thus, the Guidelines’ absolute cap, which would preclude a use from falling within the safe harbor solely on the basis of the number of words copied, is not compatible with the language and intent of § 107.

The Eleventh Circuit Court of Appeals echoed these sentiments. The opinion, written by Judges Gerald Bard Tjoflat and Stanley Marcus (with a concurrence by Judge C. Roger Vinson) states:

We note that the Classroom Guidelines, although part of the legislative history of the Copyright Act, do not carry force of law. In any case, to treat the Classroom Guidelines as indicative of what is allowable [under fair use] would be to create the type of “hard evidentiary presumption” that the Supreme Court has cautioned against…so we must not give undue weight to the amounts of copying set forth in the Classroom Guidelines.

The case is still under appeal, and you can learn more about it and follow new developments in this LibGuide hosted on the Georgia State University College of Law Library’s website. I also encourage you to read The Law of Fair Use and the Illusion of Fair-Use Guidelines, authored by Dr. Kenneth D. Crews, an attorney, author, professor, and international copyright consultant, as it will help you better understand how many of the various “fair use guidelines” were developed and the ways in which they misconstrue the law.

Managing Course Reserve Copyright Issues

When talking with faculty and librarians about copyright, I also always encourage them to remember our shared mission and not let fear of being sued prevent them from utilizing the exceptions found in the law when looking to connect students with educational resources or provide new services to them. This does not mean that we should ignore the law in its entirety or assume that because we have an educational purpose we are free to reuse works however we want. Rather, it means should consider what options the law allows and work within the scope of that law to support the educational mission of our institution. There are also options aside from the exceptions found in US copyright law that are available to use when providing course reserve services. This includes linking to works available in the library’s online collections or made legally and freely available online, using Creative Commons and Open Access works within the scope of their license terms, and obtaining permission to reuse works from the rightsholders. If these options do not work, the library can then investigate acquiring a license to make the work available through reserve.

I’m excited to announce that I have a forthcoming book on this very topic, available later this year: Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, published by Libraries Unlimited (978-1-4408-6203-8). In the meantime please feel free to reach out to me with your questions regarding copyright and course reserves or seek additional information in the many excellent sources I’ve cited here.

Carla Myers is Assistant Professor and Coordinator of Scholarly Communications for the Miami University Libraries. Her professional presentations and publications focus on fair use, copyright in the classroom, and library copyright issues. She has a B.S. in Psychology from the University of Akron and a Masters in Library and Information Science from Kent State University.

Fair Use Week 2018: Day Four With Guest Expert Brandon Butler

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How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

by Brandon Butler

I’ve been working a lot with software preservation folks, lately, and trying to think about the kinds of challenges they face due to copyright. I’m hopeful the community can find fair use solutions to at least some of those challenges, but in the meantime I’ve been struck by one unique aspect of software from a copyright perspective: in many ways it’s more like a player piano than a piano roll. Courts have taken this functional aspect of software into account in many contexts, and I’m hopeful that this will make it a good candidate for fair use arguments in the preservation context.

Why am I talking about player pianos? Well, there’s a great case that is taught fairly early in most copyright courses, White-Smith v. Apollo, a 1908 case that deals with the copyright consequences of the then-new player piano technology. (New tech is often a challenge to copyright, which is in many important ways a regime of technology regulation, focused on copying technologies. Every time the law seems to have tamed a given technological paradigm, a shift comes along and unsettles things!) The question for the court was whether the piano rolls that allowed a player piano to play songs were “copies” of protected musical works for purposes of copyright law. If they were, the music publishing companies’ permission would be needed before manufacturing new rolls that encoded songs they control.

As the Supreme Court noted in its opinion, “the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers.” The publishers brought suit.

But the court rejected the publishers’ argument that “Music…is intended for the ear as writing is for the eye, and that it is the intention of the copyright act to prevent the multiplication of every means of reproducing the music of the composer to the ear.” Instead, the court sided with the piano roll companies—a “copy” of a musical work must be “a written or printed record of it in intelligible notation.” The copyright in a musical work is, the court says, just the right to reproduce musical notation in print. Since a piano roll looks like gibberish to the human eye, isn’t really “printed” at all, and only yields music when plugged into a compatible piano, it’s not a copy. The publishers were out of luck.

The court ends its opinion with a common judicial admonishment: if you don’t like our ruling, take it up with congress.

“It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the Government.”

The music publishers took this advice to heart, and the results of their legislative advocacy are found in Section 101 of the Copyright Act of 1976, which defines “copies” as “material objects…in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

This seems intuitive to us, now—almost every “copy” we care about in the digital era requires “the aid of a machine” to be rendered perceptible. You can’t stare at a DVD as a way to watch the movie stored on it, nor can you hear the music stored on a hard drive by holding the drive up to your ear. In the analog era, a copy spoke directly to us, as long as we understood the language in which it was written (including musical notation); nowadays, the vast majority of copies are written in a language meant only for computers.

So far, so good. A piano roll is now a “copy” of a musical work, and the music publisher/songwriter should have a say in making, distributing, etc. of such copies. A copy that depends on a machine to be perceptible is still a copy. But what about the machine-the piano or the DVD player? Should copyright also apply to it?

In copyright parlance, the machine that makes a work perceptible should typically be considered a “useful object,” excluded from copyright protection (17 USC § 102). If you would like a legal monopoly on something useful, we have another kind of intellectual property for you—patent law. Design a new piano, get a patent, license others to make and sell it, go on Shark Tank and sell shares to Mark Cuban, etc. Patents can be expensive to get (especially software-related ones), and their term is much shorter than copyright (more than 130 years shorter, in fact), reflecting the public policy favoring wide public access to useful discoveries.

But it’s clear from our interviews with software preservation professionals that from their perspective, lots of software is in the same relationship to digital files as the player piano is to piano rolls. They call this “software dependency”—files created in a certain software environment depend on that software to be perceived. CAD files, word processing documents, spreadsheets, all look like gibberish, or do not reveal their full contents, unless rendered(PDF) with the appropriate software (and hardware, or emulator, etc. etc.).

For archives and special collections containing born-digital documents (which of course more and more of our documents will be over the next several decades), access to our collections will increasingly require access to legacy software. Trying to read a manuscript, an email, a digital sketch, or financial data from the files alone makes about as much sense as holding a piano roll up to your ear. It turns out, software is very useful, even necessary, for preservation and long-term access to digital materials. This is one reason for the sense of urgency in the software preservation community around collective action and shared resources—no archive can hope to assemble and maintain every piece of software they might need to read the diverse file formats in their collections.

I’m hardly the first person to observe that software is useful, and that this makes copyright an awkward fit as a legal regime for regulating its use (See, e.g., Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 344–46 (1970)). Congress recognized this fact in Section 102(b) of the Copyright Act of 1976, which declares that copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery” embodied in a protected work. Courts have been sensitive to this fact, as well. They have only granted copyright protection for aspects of software not dictated by function or interoperability (Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 703– 05 (2d Cir. 1992)), and they’ve applied fair use in cases where copying and reverse engineering of protected software was necessary for interoperability (Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 602–03 (9th Cir. 2000); Sega v. Accolade, 977 F.2d 1510, 1524–27 (9th Cir. 1992)). The policy arguments favoring narrow protection and broader availability of software under fair use in light of its useful character should apply with equal strength to uses of software for archival access and preservation.

Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He is also Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2018: Day Two With Guest Expert Krista Cox

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Fair Use and User Generated Content

By Krista Cox

In keeping with tradition, ARL has released a new infographic in celebration of Fair Use/Fair Dealing Week.  While I’m a big fan of all of our past infographics (Fair Use Fundamentals, Fair Use in the Day in the Life of College Student and Fair Use Myths and Facts), here’s what I love about this year’s infographic, Fair Use Promotes the Creation of New Knowledge: it reminds us that fair use isn’t just about someone using existing information, but about relying on it for new creations. Fair use facilitates all types of new knowledge, from news reporting to the creation of innovative technological products, to scholarship.

In the digital environment, in particular, creating new high-quality content and disseminating it widely has become easier.  User-generated content is highly popular and often relies on fair use.  While the Fair Use Promotes the Creation of New Knowledge infographic contains several different examples of the type of new information and culture that fair use enables, I want to highlight some great examples of user-generated content, such as fan fiction, remix songs and mashup videos.

One of my favorite examples is this video above by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.”  The clips are from a very diverse set of movies, ranging from old musicals like Singin’ in the Rain and the King and I, to classics like The Red Shoes and Babes in Arms, to more recent Academy Award Best Picture Winners like Slumdog Millionaire and Silver Linings Playbook, to 1990s comedies like Mrs. Doubtfire and The Mask.  The mashup is highly creative and what I found to be particularly impressive was that it uses so many movies that have nothing to do with dancing and that the user/creator didn’t speed or slow down any of the clips to fit the rhythm of the song.

Here’s another excellent mashup below, entitled “Mean Disney Girls,” which uses dialogue from the 2004 movie Mean Girls and merges it with clips featuring Disney princesses from Cinderella, Sleeping Beauty, The Little Mermaid and others.  In an example of mashups that go viral, this video has more than 13 million views on YouTube.

User generated content is so popular on YouTube that back in 2015, a Google blog post noted that, “More than 400 hours of video are uploaded to YouTube every minute,” including videos relying on fair use.  Because content on the web is often the subject of DMCA takedowns, even if the work is fair use, that same blog post announced:

“YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.  We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.  With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”

While the Ninth Circuit has found that copyright holders must consider fair use in issuing takedown notices in Lenz v. Universal Music Corp., also known as the “dancing baby” case, with automated takedown notices being issued by corporate rightholders, this many not always be the case.

This year, during Fair Use/Fair Dealing Week, I’m celebrating all of the great new works we benefit from thanks to fair use.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2018: The 5th Anniversary of Fair Use Week!

copyright, fair use

Welcome to the 5th Annual Fair Use Week Celebration!

This year, Fair Use Week will celebrate its fifth anniversary from Monday, February 26 to Friday, March 2, and will feature infographics, videos, stories, events, scholarship, and more.

Here at Harvard, where we first launched a full week of fair use celebrations in 2014, the Library’s Office for Scholarly Communication is hosting a variety fifth anniversary activities. (For a review of the fair use statute origin story, look no further than our Folsom v. Marsh comic.)

We welcome you to follow our guest blog posts from national and international fair use experts, attend the “Fair Use Gameshow” event at MIT, discover more Fair Use Week comics, and attend the Fifth Anniversary Fair Use Week Symposium, “Tried & True: Fair Use Tales for the Telling.” Thanks to the generosity of the Knight Foundation, this event will bring together a vibrant community of artists, scholars, lawyers, librarians, archivists, and other leading fair use experts in a day of panels, discussions, and demonstrations. We will also talk about and examine our very own Knight News Challenge Prototype grant project, “Can I Fair Use It? Crowdsourcing Fair Use Knowledge.”

As always, our Copyright First Responders will act as official ambassadors to Fair Use Week, donning t-shirts to start conversations around campus and online.

Follow all our Fair Use Week events:

Twitter: @FairUseWeek and @KyleKCourtney and #fairuseweek2018

Blogs: http://blogs.harvard.edu/copyrightosc and http://fairuseweek.org/blog/

Tumblr: Fair Use Week Stories

Stay tuned for more events and updates!