Our last post of the glorious celebration on the final day of the 10th Anniversary of Fair Use Week is from copyright and open knowledge expert Will Cross. Will examines the Year of Open Science through the lens of fair use. – Kyle K. Courtney

Beyond An ‘Underpants Gnomes’ Theory of Copyright: Making Fair Use The Missing Piece for the Year of Open Science

by Will Cross

Fair Use Week is always a reason to celebrate, but I’m feeling especially excited this year due to some big news in copyright and open science – we’re finally saying no to the Gnomes!

This statement probably requires some explanation. As you may be aware, the US government has named 2023 the Year of Open Science and last week we celebrated the 21st anniversary of the Budapest Open Access Initiative. Along with recent recommendations on open science from UNESCO and ongoing work with projects like Plan S in Europe, the academy has never been more invested in, or more intentional about, opening up the scholarship, data, and educational materials we create. 

Further, this commitment has undergone a fundamental shift from a simple focus on open access to the published scholarly record and towards a values-led commitment to sustainable systems of open knowledge. This shift from access to values is signposted by two memoranda from the White House Office of Science and Technology Policy (OSTP) released almost a decade apart. Where the 2013 Holdren Memo focused on removing paywalls for published research, the 2022 Nelson Memo is focused on holistic equity in both the publishing of and access to the record of scholarship. This is a significant change that recognizes that the growth of open access venues (often controlled by the same old for-profit publishers) has not led to more ethical modes of production or a more sustainable, inclusive system of scholarly sharing. 

So, what does this all have to do with fair use? The answer is that, as our understanding of what it means to support openness has expanded from access to equity, our copyright literacy has not always kept pace. Copyright has always been a core competency for this work, whether it is called “open access,” “scholarly communication,” or “open science.” In the access-focused era of the 2000s, the copyright toolkit for scholarly communication focused on open licenses and rights retention, with an aim to move published scholarship beyond the paywalls controlled by for-profit publishers. Unfortunately, as our commitment to openness has expanded and evolved, the way we talk about copyright has often remained static. We’re trying to meet new, more expansive goals with the same old tools. And that’s where the Gnomes come in.

Readers of a certain age may be familiar with an old meme focused on a set of satirical characters called the “Underpants Gnomes” who have an unorthodox get-rich-quick scheme that is notoriously light on details. “Step one: collect underpants . . . Step two: ???? . . . Step three: profit!” This tongue-in-cheek framework of “do a thing . . . ???? . . . profit” has been a reliably irreverent way to describe any half-baked or ill-considered plan and has been used to satirize everything from privacy and antitrust law, to Web 3.0 business models, to ineffective football game plans.

For too many open scholars the default attitude towards copyright has looked a bit like the Gnomes drew it up: “Step one: apply open license. Step two: ????  Step three: global knowledge equity!” As someone who has worked to support open knowledge for many years, I am deeply invested in authors’ rights and open licenses. But it is clear that simply adding a Creative Commons license does not by itself make our work better, more inclusive, or more impactful. 

Without a commitment to bibliodiversity and equitable authorship, openly-licensed scholarship isn’t inherently more inclusive. Without clear information and values-led policy about ownership and use, open data isn’t inherently more ethical. Without shared values and a respect for agency, open education is not inherently more equitable. Adding an open license to materials is absolutely necessary but in no way sufficient to meet the goals of the open movement. The BOAI recommendations put a fine point on this issue: “open access is not an end in itself, but a means to other ends, above all, to the equity, quality, usability, and sustainability of research.”

If we want to use openness to meet those other ends, it is critical to fully engage with copyright. We need to be intentional about ownership and authorship so that we can respect the agency of all contributors. We need to take seriously the limitations built into the system so that we understand what is subject to copyright and what is free for anyone to use. Most of all, we need to understand and assert copyright exceptions like fair use and fair dealing. At every stage of the scholarly lifecycle those exceptions facilitate a holistic, values-driven approach to open science, from new forms of analysis like text and data mining to new pedagogies made possible through the Codes of Best Practice and broad sharing through models like controlled digital lending.

As a US-based scholar writing this post from Amsterdam as part of my Fulbright Fellowship on international copyright literacy I have been blown away by the shared mission and values of scholars and librarians in many nations and the tremendous work they are doing in reliance on these exceptions. For open science, fair use can and must be the missing ingredient that fills the gap between “open access” and “a global system of scholarship grounded in equity, quality, usability, and sustainability.”

Unfortunately, those Gnomes can be persistent. For many open scholars, the copyright aspects of their work still begin and end with rights retention and a CC license. For some, their hesitancy is grounded in copyright anxiety, or a sense that open licenses are an escape hatch that can free them from having to really understand the law. I’ve even had conversations with scholars who suggest that openly-licensing their work somehow disqualifies them from relying on fair use or fair dealing! Of course, nothing could be further from the truth. 

Creative Commons licenses exist within and rely on the copyright system. Scholars much smarter than me have spelled out how fair use and fair dealing permit the inclusion of third-party inserts in most jurisdictions around the world. But even as UNESCO’s Recommendations recognize that open science “builds upon existing intellectual property systems and fosters an open approach that [relies on] flexibilities that exist in the intellectual property systems,” copyright training remains focused on the simplest version of author’s rights and open licensing (both ironically contract, rather than copyright, issues). Too often we’re talking about open knowledge without any serious discussion about fair use, fair dealing, or really about copyright at all. 

So, as we celebrate Fair Use Week and the Year of Open Science, I hope you will take the opportunity to help make copyright in open science a bit less Gnomic. Open scholarship is not merely compatible with fair use; it requires a clear understanding of copyright, headlined by the ways that fair use and fair dealing can align scholarship with our values. Indeed, significant work is being done to support global shared copyright literacy in this area. Leading scholars like Tanya Aplin and Lionel Bently have argued that current treaties mandate a global right to quotation under fair use. The international Right to Research project is working to study changes needed in international copyright policy to ensure equity in the production of and access to research. In the EU the reCreating Europe project is currently releasing their final working packages.

In order to explore this issue and document the exciting new work the Journal of Copyright in Education and Librarianship is developing a special issue on Copyright in Systems of Open Knowledge. The call for proposals is currently open and, as guest editor, I would love to hear about your own work and help you develop an article. Whether you are creating open scholarship that relies on fair use, developing a training program that supports compliance with Plan S or the OSTP Memo, or advocating for changes in the law to make scholarship more inclusive and equitable, we hope you will share your stories. I know we can do so much better than following the Underpants Gnomes.

Will Cross is the Director of the Open Knowledge Center & Head of Information Policy at N.C. State University where he guides policy, speaks, and writes on copyright literacy and open knowledge. He recently served as a Hewlett-funded Open Education Fellow and as an instructor for the UNC SILS. As a course designer and presenter Will has developed training materials and workshops across the US and for international audiences from Ontario to Abu Dhabi. Will holds a law degree from UNC Chapel Hill, where he also earned his M.S. in Library and Information Science, his M.A. in Media Law & Policy, and his B.A. in Constitutional History and Dramatic Art. Will’s current research focused on the relationship between copyright literacy and open knowledge is supported by grants from the IMLS, the Hewlett Foundation, and LYRASIS. In the 2022-23 academic year he is conducting research on international copyright literacy practices as a Fulbright Schuman Innovation Fellow based in Amsterdam and working with peers across the EU.

I am delighted to kick off the final day of the 10th Anniversary of Fair Use Week with a post from a copyright music expert. Join Kathleen DeLaurenti as she explores “Musical Fair Use in the Age of Digital Access” – Kyle K. Courtney

Musical Fair Use in the Age of Digital Access

By Kathleen DeLaurenti

In their 2004 edited volume, Music and Copyright, Lee Marshall and Simon Frith suggested a future that looked a lot like the film The Fifth Element: something akin to blockchain would stamp and track every interaction you had with digital music, using a system of micropayments to tally, charge, and penalize non-payers for access to music. Thankfully, our system of compulsory licensing has continued to find ways for musicians and fans to share music without turning us all into cyborgs. Yet since the Copyright Act of 1976, changes to the law have been largely in response to the interests of rights holders, leaving libraries and music collections to navigate a different kind of dystopia.

We often talk about fair use and music in the context of sampling. And while sampling is an important part of the music copyright landscape, music collections and their users have quietly been employing fair use in other ways for decades. Performers who are using scores in collections for private study often format shift to a print or digital copy to fully annotate their work. Accompanists might digitize by creating a single-sided copy to avoid an impossible page turn. Students working in new media might use physical collections in digital media projects that require them to rescore film scenes or understand the fundamentals of making sample-based music. 

Fair use continues to bolster Section 108 uses for music collections: 108(i) limits many Section 108 activities for musical and audio-visual works. Without access to these exemptions, libraries and cultural institutions have often had to make fair use assessments for preservation and access activities. Fair use remains a critical tool for preserving and providing access to our musical cultural heritage.

But before the Music Modernization Act (MMA) went into effect in January 2019, sound recordings made before 1972 did not have clear fair use protections. In fact, prior to the passage of the MMA in 2019, pre-1972 sound recordings had no federal copyright protection at all. This also meant there was confusion and uncertainty about whether or not institutions could take advantage of federal copyright exceptions, including fair use. These recordings traditionally have not enjoyed robust digital preservation, either; in 2008, Universal Music Group (UMG) lost as many as 175,000 master recordings in a single fire that destroyed their entire physical archive of master recordings. 

And unlike paper, physical audio and visual media formats deteriorate. Quickly. Sometimes very quickly. While vinyl is a fairly stable format, each play introduces discrepancies into the actual disc that impact future playback. Magnetic tape, the recording format of choice for most of the 20th century, remains at risk of being mangled in playback equipment, being demagnetized through accidents, or in some cases literally disintegrating on the shelves through a phenomenon called “sticky-shed syndrome.” It’s hard to quantify the scale of audio-visual media that we’re losing. The Library of Congress National Jukebox only has about 10,000 recordings represented there for preservation and future access. It’s estimated that in 2022, the first year sound recordings went into the public domain, that copyright expired on more than 400,000 recordings made before 1923. 

In addition to gaining certainty with fair use in engaging in preservation and access activities, libraries garnered another important legal right: a rule construction that expands Section 108(h) to apply to all sound recordings made before 1972. 

You might ask me “Kathleen! That’s all great, but what does that have to do with fair use?” One perhaps unintended consequence of this provision – which gives broad latitude to reproduce, distribute, display or perform sound recordings – is that Section 108(i) still restricts that copy and lending activity for musical compositions. Suppose you discover a reel-to-reel tape in your archival collections of Billie Holiday performing “Strange Fruit” at the Café Society in Greenwich Village in 1939: At first, it might seem like you would be able to widely share this 1939 recording under the new provisions in the MMA. However, the musical composition remains copyrighted until 2033. 

This means that for many Section 108(h) activities – when our institutions want to share unique recordings with researchers, educators, and scholars – we may still need to make fair use assessments where the other exceptions are still 

Fair use is also a critical tool for music collections who may want to implement Controlled Digital Lending (CDL) for access to physical music collections, particularly in cases where students may need access to musical scores for course-related research and study. There are very limited options for institutions who want to acquire musical scores for digital access through purchase or license. Unlike the sciences, social sciences, and humanities, open access isn’t a workable solution for access to musical scores that are still under copyright; in fact, new music is more likely to be unavailable even for purchase, with access limited to rental copies. (Scores for film music, which are often works for hire, are almost never released for purchase to anyone). 

However, fair use and CDL can fall short for performing musicians. During the COVID-19 pandemic, several institutions who were taking advantage of the HathiTrust’s Emergency Temporary Access Service (ETAS) heard many complaints from users that the view-only access limited their ability to critically annotate, analyze, and study musical works. Unlike traditional texts where you can take meaningful notes separately in your personal notebook, musical analysis employs specialized annotations that are only meaningful in tandem with the original music notation and makes no sense when separated. 

In response to this, the Music Library Association recently issued a Model Purchase and License Agreement for Digital Scores. Without clarity around digital first sale, it continues to be important to clarify exactly how an institution will use born digital content. We hope that independent composers will also employ their own custom versions of this agreement in their online shops, making it easier for institutions to acquire, preserve, and provide access to these important new works.

The passing of the MMA has provided opportunities for music collections to engage even more deeply in critical preservation and access activities. But until we advance the policy changes we need for libraries to collect and share (and make fair use of!) digital collections, we hope tools like the MLA’s Model Purchase and License Agreement for Digital Scores will allow libraries to continue to collect important works and prevent a gaping chasm in the future cultural record.

Kathleen DeLaurenti is the Director of the Peabody Institute of the Johns Hopkins University’s Arthur Friedheim Music Library. She previously served as the arts librarian, open education coordinator, and scholarly communication librarian at the College of William & Mary. She is currently the co-chair of the Music Library Association (MLA) Legislation Committee where she has also served as chair of the Best Practices for Fair Use in Music Collections task force. 

Our second post of Day Three of the 10th Anniversary of Fair Use Week with a write up from Carla Myers, fair use expert and creator of the Kraemer Copyright Conference (now also celebrating 10 years this summer!) Join Carla as she explores the critical relationship between library reserve systems and fair use. -Kyle K. Courtney

Fair’s fair! Celebrating the Ongoing Impact of Fair Use on Course Reserve Services

by Carla Myers

At 175 words, the fair use statute is fairly short, especially when compared with other sections of U.S. copyright law. It’s impact on libraries and academia is tremendous though, especially when it comes to course reserve services, which play a critical role in connecting instructors and students with required and supplementary learning materials used for teaching, research, and the creation of new scholarship.

While physical works such as books and DVD’s are circulated via print reserves under the first sale doctrine, copies of protected works library staff make and circulate via reserve services are almost always made available under the auspices of fair use. For example, an instructor may wish to have students read a selection from a book in preparation for an in-class discussion. Working through the four factors of fair use, library staff decide that their photocopying of the selection would be considered fair under the law and circulate it to students.

During the heyday of print reserve services in the 1980’s and 1990’s it was not uncommon for libraries to make hundreds of readings available this way. With the emergence of electronic reserve services in the late 1990’s and early 2000’s, many of these readings shifted format, with PDF’s replacing photocopies and students bring able to engage with the readings any time of day from any place they had an internet connection. Later, technology emerged that allowed libraries to make film and music available to students and instructors via media reserve services. No matter the format, several key factors remained the same in fair use evaluations for works instructors were looking to make available via reserve services.

The purpose and character of the use…

The first factor of fair use will weigh heavily in the library’s favor when works are being made available via reserves for educational purposes that support the teaching and learning mission of the institution.

The nature of the copyrighted work…

While more creative works generally receive greater protection than fact based works, a variety of works many legitimately be used for teaching and, as such, the use of works of fiction, popular movies, etc. would not necessarily weigh against a finding of fair use.

The amount and substantiality of the portion used…

The third factor places no limits on the amount of a work that can be reused and be considered fair. There are numerous cases where the courts have found that the reuse of 100% of a work to be fair, and others where the reuse of small portions of a work have been found to be infringing. Here, a use is more likely to be considered fair if the instructor requests and the library makes available only as much of the work needed to effectively teach the lesson or illustrate a point.

The effect of the use upon the potential market…

When considering the fourth factor, staff will likely wish to determine if a license can be obtained for the excerpt the instructor is looking to make available via print, electronic, or media reserve and factor its availability (or lack of availability) into their analysis.

Though it took almost twelve years to reach its conclusion, the Georgia State electronic reserves case confirmed that fair use, when thoughtfully exercised, can be used by libraries providing reserve services to their campus communities. In 2008, Cambridge University Press, Oxford University Press, and Sage Publications, with financial backing from the Copyright Clearance Center and the Association of American Publishers, filed suit against Georgia State University (GSU), claiming they had infringed copyright by posting selections from books they published to their library’s electronic reserves system and requesting, among other things, an injunction from the court to force GSU to stop making them available. The case was litigated over twelve years, and in 2020 GSU was declared to be the prevailing party. Of the original 99 claims of infringement put forward by the publishers, the judge ruled that 89 were fair uses. I encourage readers to review the opinions in this case as they provide interesting insights into conducting fair use analyses. They can be found alongside articles and resources summarizing the case on this LibGuide developed by Laura Burtle, Associate Dean for the Georgia State University Library.

Now Controlled Digital Lending (CDL) provides libraries with an opportunity to expand reserve services even farther by circulating full digital copies of works “in place of a physical one in a controlled manner.”[1] This an exciting development in general, but especially for those students enrolled in online degree programs as it can allow them to fully engage with the library’s print collection in a timely manner, whereas before they often had to rely on books traveling to them via the mail though home delivery services offered by libraries. Making course materials available via CDL also offers an alternate option for engaging with resources to students whose health and wellbeing may present them from leaving home at times, or who find themselves facing a personal or family emergency that results in unexpected travel away from campus. The legal theory behind CDL includes fair use, building upon the ways in which libraries have exercised this user right to connect patrons with services and resources.

Much of my professional career has been spent supporting reserve services and answering questions about the related copyright issues. I’m excited to share that in the fall of 2022 I published book on this very topic, Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, from Libraries Unlimited (978-1-4408-6203-8). One of the largest chapters is devoted to fair use, and I hope it will be helpful to those working in libraries looking to better understand how to exercise this user right.

 

When talking about fair use I always encourage folks to stick to the four factors when making their determination, avoiding arbitrary ‘guidelines’ that have nothing to do with the law (e.g., that fair use only allows you to reuse 10% of a work). However, I will tell those working in libraries that when making fair use determinations we also need to remember our mission and ensure we’re not letting fear of litigation prevent us from fully exercising rights granted to us by Congress in copyright law. In the few fair use cases brought against libraries (in which almost all the libraries have been the prevailing party!) the courts have viewed favorable thoughtful applications of fair use that balance the rights granted to creators of copyrightable work under the law and patron needs. There will be times when staff need to say “this request goes beyond the scope of fair use and we can’t make this work available through electronic reserves” though other options almost always exist, such as circulating a physical copy of the work via print reserves under the first sale doctrine. Hopefully, more often, after making a thoughtful fair use determination, library staff will find they can say “this request seem fair and we can make it available via reserve in support of our mission and that of our educational institution.”

Carla Myers serves as 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

[1] Bailey, L., Courtney, K. K., Hansen, D., Minow, M., Schultz, J., & Wu, M. (2018, September). Position statement on Controlled Digital Lending. https://controlleddigitallending.org/statement

I am delighted to present the third day of the 10th Anniversary of Fair Use Week with a guest post by copyright expert Sandra Aya Enimil from Yale University. In this post Sandra explores a bit of the pending Warhol decision through the lens of the subjects that may not always have rights in images that contain their likeness. -Kyle K. Courtney

Who Owns My Image? – A Fair Use blog about a Fair Use case (But this blog is not totally about Fair Use)

by Sandra Aya Enimil

It’s Fair Use Week and I was asked to write about a Fair Use topic, which I have done (here and here) for a few years now. This year though, I want to write about an issue that I have been thinking a lot about and it is related (tangentially) to an important Fair Use case on the minds of many. For this Fair Use Week 2023 blog , I am not fully discussing Fair Use, I want to discuss pillars of copyright law, and incredibly the important elements  of fixation and ownership.

Many people are following Warhol v.  Goldsmith, which was heard by the United State Supreme Court in October 2022. The case results from a dispute between the two artists, Andy Warhol and Lynn Goldsmith over a photograph of another artist, Prince.  Goldsmith is the original artist; Warhol received a copy of the image and created variety of colorized and enhanced versions of the image. Warhol, and later his estate, sold originals and prints of his versions of the image.  We now await a decision from the Supreme Court on whether Warhol’s use is Fair Use. There’s no doubt that a determination of what is transformative Fair Use is the main issue at play in this case.

The photo on the left was taken by Lynn Goldsmith and was licensed by Vanity Fair. Vanity Fair provided the image to Andy Warhol who then created the series on the right. The highlighted Warhol image was used in article after Prince’s death.

While I am curious about the forthcoming decision, something about the case had been bugging me and could not articulate it until I viewed a panel presentation from Professor Emily Behzadi about Warhol hosted by Jeffrey Prystowsky at Roger Williams University School of Law. Behzadi spoke about Prince as the subject of the photograph and the center of the controversy, but not one with the power of a copyright.

Her presentation made me recall another panel presentation by Professor John Tehranian on a similar theme:  cultural appropriation. Behzadi and Tehranian discuss race and gender implications regarding copyright authorship and the lack of copyright interest in images in one’s own likeness.  In photography, the person who snaps the photo, paints the portrait, who fixes the image in a tangible means of expression, is the copyright owner. In Warhol, Prince, or a representative, likely signed away his claim for any and all rights in the images taken by Goldsmith. While copyright was probably listed among the disclaimed rights, currently, a subject of a photo would typically never be considered a rights holder of the image unless they took the photo (selfies anyone?).   Goldsmith was and is the rightsholder of the images she took of Prince. The Warhol Foundation is making a Fair Use claim for the creation of the Prince series. Why doesn’t Prince, or now his estate, have any claim?

The interrogation of the assumption that subjects should have no interest in photographs is longstanding. A recent case, Lanier v Harvard, where the descendant of enslaved persons in a photographic collection[1] sought redress for use of the images, continued the conversation about the rights, not just of subjects, but of their descendants.

The descendant, Tamara Lanier, initially brought, among several claims, a copyright property interest claim. This claim was not allowed to move forward due to the issue of authorship and ownership (in June 2022, the Massachusetts Supreme Judicial Court allowed the case to proceed on a claim of emotional distress.). The photos were commissioned by professor and known white supremacist, Louis Agassiz on behalf of Harvard University. Harvard owns the copyright. The subjects, include ancestors of Ms. Lanier, Papa Renty and his daughter, Delia, had no property interest as subjects. Further as enslaved individuals at the time, they had no rights around consent or any other non-copyright rights photographic subjects might expect.

Attorney Josh D. Koskoff, left, Tamara Lanier, and Attorney Ben L. Crump, right. Massachusetts Supreme Judicial Court in Boston, November 2021. Photo by Raquel Coronell Uribe: https://www.thecrimson.com/article/2022/6/24/lanier-supreme-court-remanded/. Edited photographs of Delia and Papa Renty.

There’s also been engagement on social media, fascinatingly, on this issue as well. Consider the Twitter thread below by Dr. John Mason. Mason focuses on the person who is subject of the photograph and their agency, or not, in being photographed.

What would photojournalism & documentary photography look like — now & in the past — if the photographer's right to take someone's image were balanced by that person's right to say No?

— John Edwin Mason (@johnedwinmason) December 29, 2020

The photographer's right to take has been & is rooted in a connection to power–cultural, economic, political. The poor, the marginalized, & the oppressed have never had a parallel right to refuse to have their image taken because they lack & have lacked that connection to power.

— John Edwin Mason (@johnedwinmason) December 29, 2020

Say her name: Florence Thompson. When the well-dressed government lady in the big car stopped & asked if she could take her picture, she was in no position to refuse. She became the iconic face of the Great Depression, & she resented it. (Photo: Dorothea Lange/FSA) pic.twitter.com/pPxzsxcu67

— John Edwin Mason (@johnedwinmason) December 29, 2020

"I wish she hadn’t taken my picture. I can’t get a penny out of it. [Lange] didn’t ask my name. She said she wouldn’t sell the pictures. She said she’d send me a copy. She never did." https://t.co/7djZTLJvdD

— John Edwin Mason (@johnedwinmason) December 29, 2020

Actress and model, Emily Ratajkowski, echoed the sentiments of Florence Thompson, wondering why she, as a subject voluntarily or involuntarily, had no rights in images that contain her likeness. As with Prince, Ratajkowski likely signs releases for her commercial work as a model[2] and as a famous person, she is the subject of many photos where no permission is sought. She has even sued by a photographer for reusing an image of herself on her own social media page. Why can’t she have a copyright interest in the images of herself?

So, what is the solution? Should the person in the photo have rights in the image just as the person who created the image? Or perhaps following copyright considerations for oral history interviews, where the interviewee and the interviewer could both contribute copyrightable elements, should there be a joint or split copyright? Should we add a copyright interest for the subject of photos?

Many copyright scholars lament adding more rights to copyright law, arguing that copyright cannot be expected to “do it all.” In 1865, the category of photography was added to works that could be copyrightable[2] in the United States.[3] Forty years later audio-visual works (like motion pictures and films) were added. We have continued to add categories and refined definitions of author/creatorship, why not add another thing, a right for persons who appear in copyrighted works?

I can hear my copyright colleagues and researchers screaming at their laptops, “how is that going to work!?” I have no idea, how does any of this work?[4] But I do know, if a copyright interest for subjects in copyrighted works were added, Fair Use could apply to those copyrighted works.

Sandra Aya Enimil (she/her) is the Program Director for Scholarly Communication and Information Policy at Yale University Library. At Yale, Sandra provides strategic insight on licensing, scholarly communication, Open Access, copyright, and publishing issues. She is the Chair of the License Review Steering Committee and provides consultation on licenses of all types for the library. Sandra also provides information and resources on openness, Open Access, using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/

[1] Carrie Mae Weems appropriated the images of enslaved people from the Harvard Archives in her artwork. Harvard later threatened a lawsuit, Ms. Weems felt her use was a Fair Use said she welcomed Harvard to continue the conversation in the courts. Harvard acquired the artwork. https://legalleft.org/wp-content/uploads/sites/11/2014/07/Murray.pdf

[2] Ratajkowski disputes signing a license for a photoshoot for a certain magazine, the photographer has since released multiple books using photos that were not used for the magazine. Ratajkowski considers those photos to be unauthorized use of her likeness

[3] There was a lot of debate about the creativity involved in mid-19^th century photographs.

[4] In Burrow-Giles Lithographic Co. v. Sarony (1884), the Supreme Court confirmed that the U.S. Congress had the right to extend copyright protection to include photography: https://www.law.cornell.edu/supremecourt/text/111/53

[5] Basically we made up these laws, why not make up a few more?

 

The 10th Anniversary of Fair Use Week continues with a guest post by fair use expert and Fair Use Week Founders Award Winner Prof. Pia Hunter. Join her in a review of the whirlwind years of library pandemic closures, and how fair use, and the programs that explicitly utilized fair use, were critical in maintaining access to educational materials. -Kyle K. Courtney

Libraries, Instruction, and the COVID-19 Lockdown

by Pia Hunter

The onset of the COVID-19 lockdown in March 2020 stalled the services of many industries that operated in a strictly face-to-face environment. Early media reports suggested that the lockdown would be short term, but as weeks stretched into months, many businesses remained shuttered, and schools that customarily held face-to-face classroom instruction made an emergency switch to online learning. Libraries, which some have perceived as mere depositories for print materials, emerged as digital leaders and one of the most prepared industries to serve communities in a digital environment. When some educators struggled to adopt online learning models and provide students and teachers with access to books and media, libraries quickly filled the demand with digital content that users could access remotely.

Although libraries’ swift response to the COVID-19 lockdown appeared sudden to some, libraries have been modernizing their services to meet a range of users’ digital needs for decades, and the fair use doctrine has long supported that transformation. Physical access to library materials is not always possible, and in recent years, more public libraries have embraced the use of e-books and streaming media. Academic libraries have a teaching, learning, and research mission to support the scholarly activities of students and faculty. These libraries have created services that employ fair use to support online learning programs that were established well before the COVID -19 pandemic.

One question that has emerged frequently these past three years, is how? How have libraries provided access to copyrighted materials for remote users? How were students able to access copyrighted materials at the height of the pandemic? When we think of a classroom, most of us consider a traditional space with walls and students together in one room. The logistics for students to access library materials from their homes seemed insurmountable to some because the copyright laws surrounding how students and teachers can gain remote access is complex. Section 110(1) sets a generous standard for how content may be used, but it only applies to face-to-face instruction. Section 110(2), the TEACH Act, allows the digital transmission of copyrighted materials, but only under limited circumstances and the requirements are difficult for many educational institutions to achieve. With these competing sections of the Copyright Act, what was the solution?

Fair use, Section 107, which has long been the hero of the Copyright Act by allowing libraries to advance their services and provide remote access to users under certain conditions. During the pandemic, the HathiTrust (a digital repository from college and university libraries) created an Emergency Temporary Access Service to help its member institutions provide access to its faculty and students. This initiative was successful because fair use is flexible enough to cover different types of use. Some public domain titles were available in their entirety, and in other instances, users could view brief excerpts of copyrighted text online for limited periods of time.

The HathiTrust is a consortium of several academic libraries and could allow its member institutions to use the HathiTrust Collection, but it could not share access with the public. Therefore, K-12 students still needed access to library materials, and many public libraries could not provide digital access to print titles. This was especially true for school libraries which have mostly physical collections.

Internet Archive to the Rescue

The Internet Archive, a 501(c)(3) non-profit, “is building a digital library of Internet sites and other cultural artifacts in digital form.” Since 1996, the Internet Archive (IA) has been archiving websites, digitizing titles, and preserving our cultural memory. And on March 26, 2020, an NPR headline proclaimed, “’National Emergency Library’ Lends A Hand — And Lots Of Books! — During Pandemic.” Two days prior, the IA launched its National Emergency Library, which temporarily offered unlimited simultaneous access to its collection of 1.4 million digitized books. The goal was to provide reading and research materials to users whose K–12, public, and academic libraries had been suddenly closed due to the COVID-19 pandemic.

Many of the works were under copyright protection, and a collection of authors and publishers several authors argued that National Emergency Library was a copyright infringement because it allowed access to millions of titles, some of which were popular fiction materials and not scholarly in nature. This assertion is flawed because scholarship is inclusive, and the study of culture and society encompasses a myriad of content. Educators’ selection of materials for instruction is, and should be, unrestricted, and any external assertions of what material has scholarly relevance is overreach.

The IA typically operates under a standard virtual lending model, i.e., one user could borrow a single electronic copy of a text at a time, and once it was returned, another user could borrow the title. However, when many libraries closed due to the pandemic, the IA implemented the “National Emergency Library” to ensure that students, teachers, and researchers could continue to their work. This is not a dismissal of the publishers’ concerns, but libraries cannot be held to a 20^th century standard of copyright law while trying to provide 21^st century access to its communities. The publishers fail to consider that the IA’s National Emergency Library was created to support Emergency Remote Teaching under exigent circumstances for many educators who had little, if any, remote teaching experience.

Although the IA had announced their intention to end the emergency access by June 30, 2020, they ended the program two weeks early when publishers Hachette, Penguin Random House, Wiley, and HarperCollins announced that they would sue the IA for copyright infringement. On June 1, 2020, the publishers and several authors filed a complaint in the United States District Court for the Southern District of New York. But this case, Hachette v. Internet Archive, is not about the expanded access IA provided during the pandemic. It is a challenge to how we can use materials in a digital age and how fair use supports our right to do so. 

Many businesses suffered financial losses during the pandemic, but any argument that publishers lost millions in revenue because of the IA Emergency Library is unreasonable. Of course, authors and publishers should be compensated for their work, and they were, because libraries, including IA, already bought these books. And, in fact, libraries buy titles constantly and are the publishing industry’s best and most reliable customers. So, why can’t libraries make effective use the titles they have already purchased? Hachette v. Internet Archive invites the question of how many times and in how many formats do publishers expect libraries to buy the same title?

Yes, Section 106 of the Copyright Act of 1976 provides concrete protection for the authors’ ownership and control their work. But Section 107 tells us that fair use is not only an exception, but a right to information – one that has served many users for decades and allowed education to continue through one of the most extraordinary circumstances in modern society. Imagine a world where students could not use sections of copyrighted works in their papers or practice a piece of music without seeking permission from the rights holder? How sad would virtual spaces have been if teachers and librarians were unable to read stories to children online without gaining permission from the copyright holder? Without fair use, learning opportunities and creativity will fade, and on the 10^th anniversary of Fair Use Week, we are reminded of our duty to protect it.

Pia Hunter is a Teaching Associate Professor and Associate Director for Research and Instruction at University of Illinois College of Law working out of the Law Library. Prior to joining the law library faculty, she served as Visiting Assistant Professor and Copyright and Reserve Services Librarian at the University of Illinois at Chicago (UIC) where she researched and developed best practices for copyright and fair use for instruction for the UIC campus.

Day two of Fair Use Week opens with UVA’s Brandon Butler tackling critical takeaways from the recent case addressing fair use & software in Apple Inc. v. Corellium, LLC, Case No. 19-81160-CIV-SMITH, 2020 U.S. Dist. LEXIS 249945 (S.D. Fla. Dec. 29, 2020) – Kyle K. Courtney

Apple v. Corellium: Some Early Takeaways for Software Fair Use

by Brandon Butler

What uses of software are fair? What uses are transformative – the category of use that courts most consistently find to be fair? The question is increasingly urgent for libraries, archives, and museums, as we already live in a world where most information (from government archives to fine art) is stored in digital formats that can’t be read without the right software. In addition, software itself is also an artifact and a source of information that researchers want to consult and explore. Fair use is a key tool in library digital stewardship, but fair use’s application to software is rarely, if ever, litigated.

That’s why the opinion last December in Apple v. Corellium is so interesting, even though it’s (so far) just one district court judge’s take, and not binding precedent on anyone else. In a field with so few entries, any judicial opinion is likely to be read with interest by other courts and would-be litigants.

The other reason the opinion is so interesting is that in some ways, Corellium resembles the kind of emulation technology that libraries and archives can use to run old software on servers and make it available to end-users over the internet. The basic contours of Corellium’s fair use argument are essentially the same as the ones that justify software preservation and reuse in the library and archives context—in a phrase, that our service is a transformative use (in the fair use sense) that serves copyright’s purpose of increasing access to information without displacing the copyright holder’s reasonable or traditional market.

First, some background. You can find a pretty good summary of the lawsuit in this somewhat misleadingly-headlined story in The Washington Post. (The headline, “Apple loses copyright battle…” is misleading because Apple hasn’t really lost, yet; they lost on fair use, but as I’ll explain below, Apple may still win on their remaining DMCA claim). The very short version is that Corellium provides developers and security researchers with a platform that lets them run and explore Apple’s iOS software in a server environment, which has advantages over trying to run and manipulate the software on an iOS device (an iPhone or an iPad). After failing to acquire Corellium, Apple filed a lawsuit claiming that Corellium infringed the copyright in iOS by loading the software into its platform, and later, added a DMCA claim, alleging that Corellium’s platform circumvented technical protection measures for its users, and therefore Corellium was “trafficking” in circumventing technology. We’ll get to the second claim later, but first let’s look at some key takeaways from Judge Smith’s opinion on fair use.

Takeaway 1: Research is a transformative purpose, and add-on features help bolster your case.

Judge Smith holds that Corellium’s use is transformative – it serves a different function than iOS, and it adds value and information in the process. That’s important, because transformative uses almost always win on fair use (and non-transformative ones lose more than they win). Judge Smith cites a few key facts that lead him to this conclusion, but most important seems to be that Corellium does not “merely repackage” iOS in a new platform. Instead, it “makes several changes to iOS and incorporates its own code to create a product that serves a transformative purpose.” Judge Smith calls out several things users can do with the Corellium platform that “make available significant information about iOS”:

“(1) see and halt running processes; (2) modify the kernel; (3) use CoreTrace, a tool to view system calls; (4) use an app browser and a file browser; and (5) take live snapshots.”

Because these features serve security research, Corellium’s avowed transformative purpose, and are not available in stock iOS, they help show that Corellium’s platform is transformative – it does something different and new.

Judge Smith returns to these features, and the ways that they allow the user to learn new things about the software, over and over again. Libraries and archives interested in making software available for research purposes (and the technical experts building the tools to support this) should strongly consider adding features like Corellium’s to facilitate deeper engagement with the software.

Takeaway 2: A few bad apples don’t spoil the fair use bunch.

Apple argued that because some Corellium users might not be engaged in bona fide security research, the tool shouldn’t be considered transformative. Judge Smith rejected this argument, saying that the record showed Corellium’s intended use was for security research, and the possibility that it may not always be used for that purpose does not undermine the finding of fair use. This reasoning would be handy for libraries who have to contend with the notion that not all library users would consult software (especially games or art) for purely research purposes.

Takeaway 3: Software is a weird hybrid of functional and creative work, but that doesn’t make the second fair use factor any more important.

The second fair use factor — the nature of the work — has become kind of a vestigial organ. Courts go through a kind of rote recitation that use of more factual works is favored while use of more creative works can be less favored, but many important fair uses involve creative works…. and blah blah blah. Given this mushy mess, courts are increasingly comfortable saying explicitly that this factor doesn’t really matter in the final calculus. The Corellium opinion takes judicial indifference to the second factor to a new level. Judge Smith does lay out arguments from Apple and Corellium, and acknowledges that software is a kind of hybrid of functional and creative work – iOS is fundamentally a tool, but it has aesthetic and creative aspects, etc.. But he concludes by quoting Judge Leval in the Google Books case saying that the second factor rarely matters, and then… he just moves on, without even expressing an opinion on how the factor should be weighed in this case!

Takeaway 4: Consider turning off features that aren’t useful for research (but might be commercially competitive)

In considering whether the amount of iOS used in the Corellium product is appropriate, Judge Smith considers how much is needed for the transformative purpose of security research. Downloading and copying all of iOS as part of the installation process is reasonable, he says, but he also notes approvingly the features of iOS that are *not* ultimately made available to Corellium users. Face ID, Touch ID, baseband, camera, and the App Store are some examples of iOS features not available to Corellium users. Corellium users also can’t make calls or send messages.

Arguably, most library and archival software uses will face less scrutiny on this point, as they will not involve software that is still commercially available. The prospect of providing a commercial substitute for the original should be much less threatening in that case. Still, it might strengthen the fair use argument to think about the ways research access to software does not offer the full range of services available to an ordinary consumer. For example, when providing access to software titles used to create files, such as word processing, design, or music production software, consider limiting the ability to save or export those creations.

Takeaway 5: Software copyright does not convey a monopoly on research platforms

One of Apple’s attacks on Corellium was that their platform unfairly competes with an iOS security research offering that Apple itself is developing and plans to release in the future. Judge Smith quickly dismisses this argument, saying Apple cannot use its copyright over iOS to create a monopoly over the separate market for security research. The same logic would apply to a variety of uses in cultural heritage institutions, who could argue that copyright does not confer a monopoly on the preservation and research tools and services they offer.

Takeaway 6: Reasonable vetting of users helps prove good faith.

Apple’s final argument was that Corellium should not benefit from fair use because it does not act in “good faith” (a factor not in the fair use statute, and arguably not relevant to it, but frequently invoked nonetheless). The primary basis for this claim is that users of Corellium’s products could be bad actors – they could discover bugs in iOS and, rather than reporting them to Apple, they could sell them to malicious hackers. Judge Smith rejects this argument, pointing out that in fact Corellium does do some vetting of potential users, rejecting those it suspects could be interested in malicious uses. Cultural heritage institutions might similarly consider whether, in some cases, potential users could be screened to help ensure their purposes are bona fide. This vetting doesn’t need to be perfect – as mentioned in Takeaway 2, Judge Smith acknowledges that any tool is capable of misuse, and a tool or service can still be legitimate and transformative even if some users may not behave as the creator intended.

Takeaway 7: The DMCA can still screw everything up.

Since its passage in 1998, the most glaring failure of the Digital Millennium Copyright Act (from a user perspective) is the way it seems to undermine the balance in copyright. This case is another example of the law’s glaring failure on that score. Briefly, the DMCA created a new right for copyright holders – a right against the circumvention of technological protection measures. In other words, when copyright holders use digital locks (encryption, authentication servers, etc.) to block access to copyrighted works, the DMCA gives them a right to sue anyone who breaks those locks. While this issue is not settled, Judge Smith sides with the courts who have found that the DMCA bars breaking digital locks *even if the ultimate use of the work is legitimate fair use*. It is as if the law gave someone a right to fence off sections of any public park, and to sue anyone who took down the fence, even though the public has the right to access the land inside.

Here, Apple has implemented a series of digital protections that prevent installation of iOS on non-Apple hardware, which they say Corellium circumvents as part of adding iOS to its research platform. Notably, Apple claims that Corellium not only engages in circumvention itself, but also that they “trafficked” in circumventing technology by providing their platform to users. This is important because another major flaw in the DMCA is that although it does include statutory exemptions for users (and it empowers the Librarian of Congress to create new ones every three years), there are no exemptions from the prohibition on trafficking in circumvention tools. So, while Corellium’s users arguably qualify for the exemptions related to security research, if Corellium itself is found to be trafficking in circumvention tools, there is no exemption or defense to protect them.

Judge Smith doesn’t rule on the DMCA claim in this opinion. He says there are genuine issues of material fact that need to be determined first, so the case will move forward with further fact-finding and a trial. But the startling takeaway, here, is that despite the headlines, Corellium is still very much in danger of losing this case, even though its platform is perfectly legitimate fair use. Libraries, archives, and museums have secured exemptions for preservation (and are working on a modified exemption that would enable broader access), so they can take some comfort in that. However, if the court finds that Corellium’s use is “trafficking,” then exemptions will not help. Given the prevalence of digital rights management in software, this result could chill a substantial body of legitimate fair uses.

Brandon Butler is Director of Information Policy at University of Virginia.  There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a 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 and Video Streaming

By Carla Myers

The use of video as a part of course instruction is certainly nothing new. However, I would argue that the ways in which instructors and students desire to engage with video has changed substantially over the years. Twenty years ago, when I was an undergraduate student, if a video was used as part of course instruction, we watched it one of two ways: 1) the instructor set aside time during a class for us to view the film, or 2) we borrowed the library’s copy that had been placed on reserve and watched it in preparation for class discussion. Legally speaking, these two options for watching the film did not raise any significant issues. The performance of the film in class was covered under the face-to-face teaching exception found in Section 110(1) of U.S. copyright law and the circulation of a copy via the library’s print reserve service was covered under the first sale doctrine found in Section 109. I gave little thought to these laws and methods of delivery when I was a student.

How times have changed. Now, as a copyright professional, helping instructors and students lawfully access video is something that I give a lot of time, thought, and analysis. In fact, for much of the past decade, I have worked in this field overseeing library reserve services. And in that time, while the options available under Sections 110(1) and 109 are still available to the students and instructors, most patrons now prefer to engage with video in a streaming format, and the legal exceptions available for filling these requests are not as clear.

When it comes to film streaming, libraries and educational institutions can consider the Technology, Education and Copyright Harmonization (TEACH) Act, found in Section 110(2) of U.S. copyright law and the fair use exception found in Section 107.

The TEACH Act was passed in 2002 in an effort to address the challenges being presented as online education began to emerge as one of the primary ways of delivering content to students. The intent was to be able to replicate, online, the same rights that an instructor or student might have in the classroom under Section 110. If you can meet all of the points of compliance required by the law, the TEACH Act it does provide options for streaming video online for course instruction. The problem libraries and educational institutions have with the TEACH Act is that it requires a tremendous amount of collaboration and effort from individuals and departments across campus to ensure that the 15+ requirements found in the statute are consistently being met for each film that instructors stream to their students. The TEACH Act also places a variety of limits on how works can be used and the period of time they can be made available to students. As such, many libraries and educational institutions interested in streaming film are looking to a much more flexible standard, fair use When making fair use determinations, we look to the fair use statute in Section 107. This statute states that “[n]otwithstanding” the copyright in the materials “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” is not an infringement of copyright, subject to the four factors outlined in Section 107:

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.

Let’s review how these factors interplay with the streaming use case.

Factor 1: Purpose

When it comes to streaming video, the first factor, the purpose of the use, will almost always weigh in the library’s favor when the film is being made available for educational purposes that support the teaching and learning mission of the institution. Here, the more transformative the use is the better. In his article, Towards a Fair Use Standard[1] Justice Pierre Leval tells us that a transformative use is one that “employ[s] the quoted matter in a different manner or for a different purpose from the original” and that “adds value to the original” through the “creation of new information, new aesthetics, new insights and understandings” (p. 1111). Film can definitely be used in a transformative way! For example, World War Z is a summer blockbuster that follows a man and woman as they try to determine what has caused the zombification of much of the world. This movie could be appreciated as a form of entertainment by anyone, but what if the film was used by an instructor teaching a class called “Introduction to Emergency Management?” What if the instructor asked her students to watch the film and, based upon what they learned in the class, provide criticism and commentary on the response of first responders, the government, and the military to a zombie/health crisis? This brings the viewing of the film into an entirely different context – scholarly -and students will apply new insights and provide greater understanding to the film, adding value to their educational experience in the course.

Factor 2: Nature

The second factor, that looks at the nature of the work being used, will more likely support streaming of factual-based films, such as documentaries. However, this does not mean that popular films cannot be streamed if they are being used as part of course instruction (see the example above), especially since popular films and other creative media are often utilized under a fair use standard.

Factor 3: Amount

The third factor asks us to consider the amount of the original work that is being used. This can be one of the trickier factors to evaluate, but mainly because so many misconceptions surrounding this factor exist.

For example, many people have heard that you can use up to 10% of a work or, in the case of film, up to three minutes, and that will qualify as fair use. Under the law, the fair use statute places no such limits on the amount of a work that can be used, nor does it abide by any arbitrary limits. There is definitely no magic number or timed amount that will provide an institution with any type of safe harbor to shield them from claims of infringement. If we take a look at the judicial history of fair use, we will find numerous cases where the courts have found that the reuse of 100% of a work to be fair, and others where the reuse of small portions of a work have been found to be infringing.

Frequently instructors will want to provide students with access to an entire film, and that may be supported under the third factor if the entire work is important to achieving the educational objectives of the course. Judge Leval tells us that when considering the third factor, “an important inquiry is whether the selection and quantity of the material taken are reasonable in relation to the purported justification” (1990, 1124). For example, say an instructor is teaching a computer generated imagery (CGI) course and wishes students to view the film The Lord of the Rings: The Fellowship of the Ring directed by Peter Jackson (2001) to show what groundbreaking use of CGI looks like in film. While the film contains many scenes that are rendered almost completely in CGI (the actor playing Gollum included!), there are also many scenes in the film that contain no CGI. For this course, the instructor could likely tailor the course to student-viewable clips from the films featuring CGI focused scenes. However, if an instructor was teaching a class called “Tolkien in Theater, Radio, and Film” that explored how Tolkien’s works have been retold in these media formats, it may be appropriate for students to have access to the entire film so they can compare Peter Jackson’s expression of the story against other versions.

Factor 4: Market

Over the past decade, the fourth factor of fair use has become more complicated to address when looking to stream film as part of course instruction. This is because of the expansion of the commercial streaming market that includes library vendor services (e.g., Hoopla and Kanopy) as well as general vendors such as Amazon, Hulu, iTunes, Vudu, and Netflix. These services offer the public access to streaming film through rental, licensing (read the terms with these vendors…rarely do we purchase digital files from them anymore), or subscription models.

When a film an instructor is interested in making a work available to students in its entirety, and the work is available through one of these vendors, we must take the streaming licensing options into consideration when evaluating the potential market effect of the use. As with all fair use determinations, the existence of a license for rental or “purchase” of a work does not mean that fair use can’t be used. But it does mean we have to work through our decision-making process on this factor more carefully. The argument for fair use can be strengthened when a film is not commercially available in a streaming format or when an instructor only requests clips – because, in these examples, there may be limited market harm.

Enter the Code of Best Practices in Fair Use for Academic and Research Libraries (2012) put forward by the Association of Research Libraries, the Center for Social Media at American University, and the Program on Information Justice and Intellectual Property at the Washington College of Law, American University. This Code, part of the family of fair use best practices codes,[2] can help librarians and educators is addressing these considerations and making thoughtful determinations of fair use.

The Code tells us that a fair use argument can be made for making “appropriately tailored course-related content available to enrolled students via digital networks” (p. 14). Here, it’s important to remember that fair use determinations must be made on a case-by-case basis. This statement in the Code does not mean that making any course-related content available to students online is a fair use, each title must be evaluated for fair use based upon the facts specific to its use in the course and its market availability. The Code does provide us with some enhancements that can aid in the making of these decisions. They include:

• An argument for fair use can be strengthened when the film is being used in a transformative context and the amount being used is appropriate to the instructor’s pedagogical goals (p. 15).
• Fair use arguments are reviewed on a regular basis to help ensure the works being used and the amount of the film being made available remains relevant and appropriate for course instruction (p. 15).

The Code also provides some additional factors to consider in these situations:

• “The availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction.
• Only eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials.
• Materials should be made available only when, and only to the extent that, there is a clear articulable nexus between the instructor’s pedagogical purpose and the kind and amount of content involved.
• Libraries should provide instructors with useful information about the nature and the scope of fair use, in order to help them make informed requests.
• When appropriate, the number of students with simultaneous access to online materials may be limited.
• Students should also be given information about their rights and responsibilities regarding their own use of course materials.
• Full attribution, in a form satisfactory to scholars in the field, should be provided for each work included or excerpted” (p. 14).

Those familiar with the TEACH Act will see some of its requirements echoed in these recommendations! While fair use and the TEACH Act are two separate statutes, it is not unreasonable to consider how some of TEACH’s requirements, like limiting access to online educational resources to those enrolled in the course and providing information on copyright law to instructors and students, can help support the application of fair use in these situations. When it comes to streaming film, there are also considerations under the Digital Millennium Copyright Act (often referred to as the DMCA) of which we must be aware. This goes a bit beyond the scope of this blog post, but there are good blog posts on this out there that explore these considerations, and it is a topic that has been addressed repeatedly as part of the triennial rulemaking process administered by the Librarian of Congress.

While licensing access to film for instructional use is an option for libraries and educational institutions to consider, we should be careful not to view it as the only option available to us. We can’t forget our mission as libraries and educators to provide access to quality resources that enhance students educational experience. Congress recognized the importance of the work we do when including exceptions like fair use in the law. Fair use arguments can be made for providing students with access to streaming film. As in the case with all fair use determinations, they just need to be made thoughtfully, and demonstrate a balancing of the four factors in a way that reflects both the rights of users and those of rightsholders.

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. Her new book, Copyright and Course Reserves: Legal Issues and Best Practices for Academic Libraries, published by Libraries Unlimited (978-1-4408-6203-8) is available for pre-order now, to be released in the Fall.

[1] Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)

[2] Some others are the Society for Cinema and Media Studies’ Statement of Best Practices in Fair Use in Teaching for Film and Media Educators and the Code of Best Practices in Fair Use for Media Literacy Education.

We are delighted to kick off the 6th Annual Fair Use Week with a guest post by the worldwide copyright expert, Dr. Kenneth Crews as he muses over the 25th Anniversary of one of the most critical of all fair use cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the 2 Live Crew Case!

Fair Use and the Growth of Creativity: Celebrating a Quarter Century

by Kenneth D. Crews

Dust off the CD player and get in the mood for Boyz II Men and Ace of Base.  We’re gonna party like it’s 1994!  In just several days, on March 7 next week to be exact, we can celebrate the 25th anniversary of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  You know that a case about early rock music by a guy named Skyywalker has got to be good.  The Campbell decision is in fact the most important fair use court ruling – ever.

That’s right.  Campbell is the most important fair use ruling in the history of the known universe.  It has been cited in nearly 700 subsequent decisions from U.S. courts and has been the springboard thousands of articles and studies. The case is referenced with joy by copyright professionals around the world who yearn for the clear rights we now have in the U.S. to make the critical and even despicable parodies, as the Supreme Court unequivocally sanctioned.

Skewering and criticizing are among the most American pursuits – they are extensions of our beloved free speech traditions – and the Court preserved the spirit of that Weltanschauung in the framework of fair use and copyright law.  The task for the Supreme Court was to discern and articulate when fair use would allow the creation of a parody without infringing the copyright in the underlying work.  The subject matter in the Campbell case was the pop song, Oh, Pretty Woman, made famous in 1964 by the singer and songwriter, Roy Orbison.

A parody, unlike a satire, necessarily makes use of a specific original work.  A satire might use a song or other existing work to critique or mock something else.  Think of Weird Al Yankovic being generally gluttonous to the tune of Beat It.  Many other songs could have been the vehicle for pie hole humor.  By contrast, a parody comments on the underlying work itself; a parody must use at least a bit of the work it is seeking to attack.

In the Campbell case, the rap group 2 Live Crew rewrote the original Orbison opus in a quest to criticize and comment on its sentiment of a simple and perhaps misguided romantic episode.  Justice David Souter, one of the most well-read Supreme Court jurists in recent decades, recast the legal analysis with grace of a literary analysis and the comprehension of a constitutional scholar.  Souter recognized through the unanimous decision that fair use is essential to a functional copyright law, to critical reflection, and to the inspiration of new creativity:

[T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.  Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright. . . .

The Court gave a strong endorsement to the policies behind the law, but the most enduring legacy of Campbell has been its restructuring of the legal principles of fair use.  The Supreme Court had previously rendered fair use decisions about quoting from a presidential autobiography and recording a TV broadcast at home.  While the Court based its decisions on the four factors in the fair use statute, the analysis was often muddled and supported by interpretative principles that tended to ossify fair use at a time when the need for flexibility was on the rise.

Flexibility in fair use allows the law to apply to diverse works for a widening range of new uses. The Supreme Court in Campbell abandoned earlier edicts against commercial uses, and even against using the “heart” of a work.  The Court turned away from declaring market harm as the most important factor, and it elevated the notion of “transformative” uses.  Under Campbell, all four factors of fair use are to be evaluated together, and each is weighted according to the strength of the evidence.

Justice Souter vividly understood that parody is a form of criticism, and society is best served through open commentary on music, literature, art, politics, and more.  The subject of Campbell may have been a chipper ditty with a virtuous sentiment and a compelling bass riff.  Through the last 25 years, however, the real subject of Campbell has become clear.  The more flexible conception of fair use that Campbell espouses is not only about using existing works – it is about creating an entire new breed of works.

Consider again life in 1994.  The Simpsons was in its fifth season, and parody recordings had been the oeuvre of Allan Sherman and Stan Freberg.  But by coming in 1994, the Campbell decision inadvertently became a turning point in relationship of copyright to technological change.  The internet was in its formative years, YouTube was a decade from inception, and the more aggressive parodies of South Park and The Daily Show were mere brainstorms.  Campbell opened the way for fuller exploitation of the humor, taste, media, political intrigue, cable networks, worldwide connections, and digital tools that were about to revolutionize our lives.

The flexibility that Campbell brought to fair use has allowed this social and intellectual transformation to prosper.  It also fostered the creativity of appropriation art, the trenchant dissection of political news, and the digitization and analysis of millions of books and other copyrighted works.  The Campbell ruling brought new meaning to fair use exactly when technology was widening possibilities, and when our social and political climate demanded a critical examination – and even a stinging parody.  The Supreme Court showed tremendous foresight in 1994 and gave us something to truly celebrate a quarter century later.

Kenneth D. Crews is an attorney and international copyright consultant with Gipson Hoffman & Pancione in Los Angeles, California.  He was previously on the faculty and founding director of copyright offices at Columbia University and Indiana University, and he has been a consultant for the World Intellectual Property Organization since 2007.  Dr. Crews is the author of Copyright Law for Librarians and Educators, forthcoming soon in a 4th edition.

 

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

Welcome to the 4th Annual Fair Use Week Celebration!

Fair Use Week will celebrate success stories and debate examples through February 24, 2017 via platforms from workshops to Twitter forums. Here at Harvard, where we first launched Fair Use Week in 2014, the Library’s Office for Scholarly Communication is hosting a variety of events, including guest blog posts from national and international fair use experts, a fair use documentary movie premier, a “Fan Fiction & Fair Use” live event, Fair Use Week comics, and more! 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.

Fair Use Week was appropriately born at Harvard in a 2014 campus-only pilot, but its Harvard roots run deep; the fair use statute was actually born out of an 1841 lawsuit (Folsom v. Marsh, now a comic book!) in which one Harvard historian sued another Harvard historian over quotes and abridgements in a biography of George Washington. The publishers (both Harvard alumni, one formerly the Harvard Librarian) took the case to court, where it was heard by Justice Joseph Story, who also happened to be a law professor at—you guessed it—Harvard. Today’s current four-factor statute wasn’t written until 1976, but Story’s core reasoning guided its formation, and it hasn’t changed much over almost two centuries.

Follow all our Fair Use Week events:

Twitter: @FairUseWeek and @KyleKCourtney and #fairuseweek2017

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

Tumblr: Fair Use Week Stories

Stay tuned for live events!