AASL 15 th National Conference & Exhibition. John Eye, Ed.D. Dean of Library Services Associate Professor of Library Science Southern Utah University

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1 AASL 15 th National Conference & Exhibition John Eye, Ed.D. Dean of Library Services Associate Professor of Library Science Southern Utah University

2 The following is information, NOT legal advice. Your school policies may dictate how you ultimately proceed.

3 Copyright law is often presented in a way that is increasingly threatening first amendment rights and access to information, primarily due to the influence of corporate interests and the financial greed of lawmakers. The educational enterprise is bombarded with overreaching interpretations of copyright law, leading to an artificial and unnecessarily limited use of educational material.

4 The Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries. U.S. Constitution. art 1, sec. 8

5 years renewable for another 14 years years renewable for another 14 years years renewable for another 28 years life of the author + 50 years life of the author + 70 years. Association of Research Libraries, 2007

6 (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. -

7 Most federal documents Phone books (white pages) Works with expired copyrights Works for which creator/owners have chosen to give up their copyrights Freeware Things that cannot be copyrighted, for example, names, short phrases, titles, ideas, and facts Some clip art (Internet and print) Works published in 1923 or before Some works published between 1923 and 1963 Butler, 2004, p. 24

8 Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. -

9 Risk Management Low Risk High Risk Where do you fall?

10 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 (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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. -

11 Columbia University, 2008

15 I. Single Copying for Teachers A single copy may be made of any of the following or any part thereof by or for any faculty or staff member at his or her individual request: A. A chapter from a book; B. An article from a periodical or newspaper; C. A short story, short essay or short poem, whether or not from a collective work; D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. II. Multiple Copies for Classroom Use: Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the faculty giving the course for classroom use or discussion, provided that: A. The copying meets the following tests of brevity and spontaneity as defined below; and, B. Meets the cumulative effect test as defined below; and, C. Each copy includes a notice of copyright Definitions Brevity (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words. (ii) Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragragh.] (iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue. (iv) "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced. Spontaneity (i) The copying is at the instance and inspiration of the individual teacher, and (ii) The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. Cumulative Effect (i) The copying of the material is for only one course in the school in which the copies are made. (ii) Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. (iii) There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]

16 Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

17 License agreements can be used to eliminate or dilute fair use and other exceptions. Bollier, D., Bradford, G., Racine, L., & Sohn, G. B. (Eds.). (2005).

18 In reviewing the history of fair use litigation, we find that judges return again and again to two key questions: Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use? If the answers to these two questions are "yes," a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place. Center for Social Media

19 We conclude that the significantly transformative nature of Google s search engine, particularly in light of its public benefit, outweighs Google s superseding and commercial uses of the thumbnails in this case. In reaching this conclusion, we note the importance of analyzing fair use flexibly in light of new circumstances [12]. Judge Ikuta, 2007 U.S. District Court of California.

20 Righthaven v. WAYNE HOEHN A federal judge ruled Monday that publishing an entire article without the rights holder s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven. Kravets, 2011

21 Teacher Black adds images taken from various Internet sites to a multimedia presentation he uses to complement his lecture on Egypt. (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. Johnson & Simpson, 2005.

22 The district purchases a single-use license for Photoshop, but IT Coordinator Green installs it on all the computers in a classroom. (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. Johnson & Simpson, 2005.

23 Teacher Jones downloads songs from a file swapping service to listen to while working on her lecture plans. (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. Johnson & Simpson, 2005.

24 Professor White transfers an educational film to DVD because the university has decided it will no longer support video tapes. (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. Johnson & Simpson, 2005.

25 Teacher Brown copies short stories and essays from a variety of magazines, textbooks, and Web sites to create an anthology for his Honors English class. (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. Johnson & Simpson, 2005.

26 Professor Gray shows Disney s The Little Mermaid to reward her students for scoring exceptionally well on a recent test. (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. Johnson & Simpson, 2005.

27 Teacher Mulgilicudy wants to have students record themselves reading children's books and make them available for other students to listen. 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.

28 This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions or accounts of the game without the NFL s consent is prohibited. National Football League The Computer & Communications Industry Association (CCIA) announced today that it has filed a Federal Trade Commission complaint on behalf of consumers against Major League Baseball, the National Football League, NBC/Universal and several other corporations. CCIA alleges that the named corporations have misled consumers for years, often misrepresenting their rights through deceptive and threatening statements. Computer, 2007

29 UMG Recordings vs. Augusto Sold unsolicited, promotional CDs on E-bay. CDs were labeled: property of the record company licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws. Harris, 2009

30 All rights reserved. No part of this book may be reproduced, transmitted, or stored in an information retrieval system in any form or by any means, graphic, electronic, or mechanical, including photocopying, taping, and recording, without prior written permission from the publisher. Candlewick Press

31 All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. HarperCollins

33 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the ELT Rights Department, Oxford University Press, at the address above. Oxford University Press

34 All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, except as may be expressly permitted by the 1976 Copyright Act or in writing by the publisher. The Princess and the Pea, Houghton Mifflin

35 No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without the prior written permission of Houghton Mifflin Company unless such copying is expressly permitted by federal copyright law. Houghton Mifflin

36 Distribution hurdles. Copyright concerns make it harder than it needs to be for curriculum materials to circulate, either commercially or through informal networks. Regularly publishers, teachers, and administrators use rigid, narrow interpretations of copyright law, interpretations which ignore the opportunities that fair use provides. This affects both teacher curricula and student work. Hobbs, Jaszi, & Aufterheide, 2007.

37 PEDAGOGICAL COSTS The pedagogical costs of studied ignorance, quiet transgression, and hyper-compliance are many. The quality of the curriculum materials that teachers design is impaired; the work that is created, either by students or teachers, has limited circulation; and students learn copyright misconceptions. Hobbs, Jaszi, & Aufterheide, 2007.

38 Copyright Alliance from the publisher s perspective. Teachingcopyright.org from the access advocate perspective.

39 Technology continues to provide options and open new doors. DMCA safe harbors have resulted in YouTube, MySpace, and other social and interactive venues. Open Access Publishing is expanding and gaining momentum.

40 What can I do to better understand what is allowable under copyright law?

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44 Learn as much as you can about copyright law and model it in your enterprise. Don t get overtaken by myths, etc. Teach copyright law as part of your information literacy curriculum. Serve as a resource for teachers, staff, and administrators in the ethical and legal aspects of using information.

45 Association of Research Libraries. (2007, July). Copyright timeline: A history of copyright in the United States. Retrieved February 26, 2008 from the Association of Research Libraries Web site: Auftderheide, P. & Jaszi, P. (2004). Untold stories: Creative consequences of the rights clearance culture for documentary filmmakers. Retrieved February 26, 2008 from Center for Social Media, School of Commuication, American University Web site: Barlow, K. (2008, January 24). NIH mandates open access to researchers publications. University Times, 40(10). Retrieved February 26, 2008 from the University of Pittsburgh Web site: Bateman, R. (2007, June 17). Digital theft is moral as well as legal issue [Letter to the editor]. Deseret News. Retrieved February 26, 2008, from Bollier, D., Bradford, G., Racine, L., & Sohn, G. B. (Eds.). (2005). So what about copyright? (1 st ed.). Business Software Alliance. (n.d.). B4U COPY. Retrieved February 26, 2008, from Butler, R. P. (2004). Copyright for teachers and librarians. New York: Neal-Shuman. Computer & Communications Industry Association. (2007, August 1). CCIA files FTC complaint against NBC/Universal, MLB, the NFL and others alleging years of consumer deception. Retrieved February 16, 2008, from Emory University. (2007, September). Rising journal costs limit scholarly access. Retrieved February 26, 2008, from: Hobbs, R., Jaszi, P. & Aufderheide, P. (2007, September). The cost of copyright confusion for media literacy. Retrieved from the Center for Social Media, School of Communications, American University Web site: Harris, K. (2009). For promotional use only: Is the resale of a promotional CD protected by the First Sale Doctrine? Cardozo Law Review, 30, Johnson, D. & Simpson, C. (1995). Are you the copyright cop? Learning & Leading with Technology 32(7): Kravets, D. (2011, June 20). Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use. Wired. Retrieved from Russell, C. (2004). Complete copyright: An everyday guide for librarians. Washington: American Library Association. Stim, Richard. (2008). Fair use & copyright [Podcast]. Retrieved February 26, 2008, from A3A9EC4EB10D4F8F. Ikuta, S. (2007, May 16). Perfect 10 v. Amazon.com, U.S. Court of Appeals for the Ninth Circuit. Retrieved February 26, 2008 from the Public Knowledge website: p10-v-amazon pdf U.S. Supreme Court. (1985). Dowling vs. United States, Certiorari to the United States Court of Appeals for the Ninth Circuit. Retrieved February 26, 2008 from FindLaw Web site:

46 John Eye,