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Tag: Fair Use (page 2 of 3)

Copyright in the Libraries: eReserves

September 8, 2015 / / Comments Off on Copyright in the Libraries: eReserves

Note: This blog has been updated to reflect the fact that the eReserves service within the University Libraries has been discontinued.

Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all available posts in the series here.

The Ohio State University Libraries previously provided an eReserves service to assist instructors with uploading supplementary course readings to Carmen (the learning management system used at OSU). Terry Camelford, the Program Coordinator for eReserves, met with me to discuss her team’s work and how they navigated the copyright issues related to eReserves.

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Fair Use in Digital Storytelling

February 23, 2015 / / 3 Comments

 “…(A) digital story is a short (3-5 minute) movie which uses images, voice, and music to tell a story. There are a variety of media that can be used to create digital stories and a variety of reasons for creating them. ” – The Ohio State University Digital Storytelling Program

Authors of digital stories remix and reuse materials to create something new: a short video with a personal narrative. Authors write and record their own narration and often use personal photos, video, and sound; however, they frequently incorporate copyrighted materials from other sources in order to develop powerful digital stories. For example, a narrative may require abstract images to help convey a particular idea or emotion, or a specific element of meaningful culture such as a quote from a favorite book or photo of a particular event.

The stories produced in connection with the OSU Digital Storytelling Program are posted on YouTube and shared on campus through occasional viewings. In order to promote legal use of third party materials and avoid takedown requests, participants in the OSU Digital Storytelling Program are encouraged to source materials as much as possible from the public domain, licensed collections (e.g. Creative Commons photos on Flickr), or create things themselves. However, there are times when an author wants or needs to use copyrighted material, and wants to rely on fair use or seek permission in order to proceed.

As defined in Section 107 of the U.S. Copyright Act, fair use is a defense against charges of copyright infringement determined through the analysis and application of the four fair use factors:

  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 fair use exception is quite broad and can apply to a wide variety of uses (which could include digital storytelling) but the lack of specificity can make it difficult to ascertain whether or not a particular use may qualify as fair use.  Those considering fair use, should employ a fair use checklist to conduct an analysis and weigh the criteria favoring and opposing fair use (our video provides more information and an example of doing a fair use analysis).

Fair use and your role as a digital storyteller

As a digital storyteller, you may have the option to rely on fair use depending on what material you are using, and how and why you are using it. A fair use analysis will help you evaluate your answers to those questions.

The first factor of fair use is concerned with the purpose and character of a proposed use. As an author, you should think carefully about the purpose of your digital story. Is it educational? Are you commenting on, criticizing, or parodying the copyrighted work you wish to use? These types of purposes favor fair use.  Transformative use also weighs in favor of fair use. If you use a copyrighted work in your digital story for a purpose other than which it was originally intended for, you may be able to make an argument for transformative use of that material. Using your favorite song as a soundtrack to your digital story is not a transformative use, but criticizing the lyrics of another song for its message of oppression or intolerance could be a transformative use.

Ask yourself whether you need a particular work in order to accomplish the purpose of your digital story. If you simply need some piece of material that depicts archery as a recreational activity, then you do not need to use a clip of Katniss Everdeen from The Hunger Games.  You can likely find a public domain or Creative Commons licensed photo, or even take your own photo. On the other hand, if your digital story critiques or comments on the character of Katniss Everdeen specifically and how she contributes to the reversal of traditional gender roles in the Hunger Games, then you may actually need a clip or photo from the films to support your narrative.

The second factor of fair use requires you to assess the nature of the work you are using. Is it factual or fiction? Published or unpublished? Is it highly creative? Many materials likely to appear in a digital story, such as music and photos, are considered highly creative works; this weighs against fair use, but it could potentially be balanced out by the other factors.

The third factor of fair use considers the amount and substantiality of the portion of the copyrighted work being used. Ask yourself how much of a particular work you need to use in order to accomplish your purpose. In your digital story about how the television show The Walking Dead saved your life because it inspired you to prepare for emergencies, will a still image from the show suffice, or does your story comment on a particular scene that you need to show as a video clip in order to fulfill your purpose? To strengthen your argument in favor of fair use, use only the amount necessary to fulfill the purpose of your story.

The “substantiality” component of the third fair use factor refers to the significance of the material you want to use in relation to the entire copyrighted work. Could the scene you want to use from The Walking Dead be considered particularly significant to the show or a particular episode? This is sometimes referred to as using the “heart of the work”. Another way to phrase this could be: “how big of a spoiler is it?” Showing the death of a main character or major events from a season finale could be considered the heart of the work and weaken your argument for fair use (particularly if you did not necessarily need to use that particular scene to accomplish the purpose of your digital story).

The fourth factor of fair use considers the effect your use of the material could have on the potential market for or value of the original work. Could your use impact the copyright owner’s ability to profit from his or her work? Digital stories have the potential to cause a detrimental effect on the market for a work because they are accessible to the public online, and they will remain available for a long time. For example, using a popular copyrighted song as a soundtrack for your video could impair the market for that song by providing a substitute for purchasing the song as an MP3. Viewers could simply play the digital story whenever they wanted to listen to the song, as opposed to going out to buy their own copy.

You must consider all four factors of fair use when evaluating whether or not you have a strong argument in favor of fair use. No single factor is more important than the others; for example, an educational purpose does not automatically qualify a proposed use as fair use. Additionally, although each factor is equally important to a fair use analysis, checklist criteria should not be tallied up with a simple “majority rules” determination. You should keep an eye out for significant problems that could outweigh other criteria, such as a particularly damaging effect on the market for a work.

Still have questions about fair use? Contact the OSU Libraries’ Copyright Resources Center for assistance:

Email: libcopyright@osu.edu

Phone: 614-688-5849

Website: go.osu.edu/copyright

Twitter: @OSUCopyright

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

Fair use toolkit for librarians

February 25, 2014 / / Comments Off on Fair use toolkit for librarians

Fair use is an important component to U.S. copyright law that empowers individuals to make use of copyrighted materials without asking or paying for permission for certain socially useful purposes, such as scholarship, research, and education. It should come as no surprise that libraries, being heavily involved in such endeavors, often rely on fair use to accomplish many day-to-day activities in support of teaching, learning, and research.

Unfortunately, misunderstandings and uncertainty about copyright and fair use may prompt librarians and administrators to avoid some projects or limit services that could otherwise qualify as fair use. Librarians are not the only ones to find themselves in this predicament, but the good news is that community-specific best practices help dispel fair use myths and provide guidance within a particular discipline.

The Association of Research Libraries (ARL), in partnership with the Center for Social Media and the Washington College of Law at American University, has developed several resources to help librarians and library administrators understand and apply fair use as it pertains to academic and research libraries:

Lastly, no fair use toolkit is complete without a checklist to help analyze the four factors of fair use:

 

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair use best practices to the rescue!

February 20, 2014 / / Comments Off on Fair use best practices to the rescue!

Most statutory copyright exceptions tend to be very narrow in scope and limited by explicit requirements or restrictions. In comparison, fair use is quite broad; the statute cites just four general factors to consider when evaluating fair use. Such flexibility permits the use of copyrighted materials in many contexts and for many purposes, but this lack of specificity can also lead to confusion over what may actually qualify as fair use. In fact, the only way to definitively establish fair use is to receive a decision from a judge!

To the detriment of creators and consumers alike, doubts about fair use and anxiety over the penalties for infringement may prevent creators from pursuing educational, creative, and socially useful projects that could potentially constitute fair use. For instance, a recent study on copyright, permissions, and fair use in the arts reports that confusion and apprehension regarding these issues led to self-censorship and abandoned projects for one third of visual artists and visual arts professionals (e.g. editors, publishers, and historians).

Flying superhero

Superhero by Moriah Rich
from The Noun Project

Fair use best practices have been established to address this confusion and to help establish acceptable industry customs. Community-specific best practices help creators feel more confident in their rights and justify the reliance on fair use for a variety of projects. Besides providing guidance for practitioners, community-specific fair use codes may influence court decisions by contextualizing individual fair use cases within industry common practice.

Emerging community-driven best practices recognize the short comings of arbitrary and impractical directives such as the 1976 Classroom Guidelines* and focus on articulating moderate, community accepted practices rather than establishing a maximum or minimum of fair use. Best practice codes help users avoid fair use fantasies and intimidating misinformation when developed in partnership with reliable sources, such as the American University College of Law and Center for Media & Social Impact.

American University regularly partners with communities to devise best practice codes appropriate for those industries. The guidelines produced thus far include:

*Don’t be fooled: The 1976 Classroom Guidelines do not have the force of law!

Read more:

Power to the People: Five Reasons Fair Use Best Practices Are Changing the World – ARL Policy Notes

Timid About Fair Use? – Inside Higher Ed

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair Use 101: Why do we need fair use?

February 17, 2014 / / 3 Comments
Scale balancing copyright symbol and mortarboard hat,

© 2008 Michael Brewer & ALA Office of Information Technology Policy, CC BY-NC-SA 3.0

The ultimate purpose of copyright is not solely to protect creators’ rights. That may sound like a radical statement, but protecting individuals’ rights is merely the means to an end. Copyright is actually intended to promote progress, creativity, and innovation for the benefit of society as a whole.

Ideally, everyone prospers from new works which generate culture, provoke discourse, commentary, or criticism, and inspire other creators to produce something new in turn. Copyright encourages individuals and businesses to create art, literature, music and other original expressions by granting authors the exclusive rights to their work so that they may have an opportunity to profit from their endeavors. Once creators have had a chance to benefit from their work, copyright expires and others may use an author’s work without restriction, but this doesn’t happen for a long time—70 years after the death of the author!

Particularly given the lengthy duration of copyright protection, fair use provides an important exception to copyright that helps to balance the interests of creators and the public good. Without fair use and other copyright exceptions, it would become prohibitively time consuming and expensive to conduct everyday activities like reporting the news or teaching a class because journalists, teachers, and others would need to seek permission every time they wanted to use copyrighted materials. Additionally, rightsholders can (and do!) refuse to grant permission for uses they see as undesirable or damaging, such as critical reviews. Fair use provides an important safeguard against censorship via copyright.

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Fair Use 101: What is fair use?

February 12, 2014 / / Comments Off on Fair Use 101: What is fair use?

“The fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” – Title 17, U.S. Code, Section 107

Fair use is an exception to copyright that permits the use of copyrighted materials for certain purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Fair use is not limited to just these situations and may be found in a wide variety of circumstances. In fact, it is the most broad and flexible of the statutory exemptions, with none of the specific limitations and restrictions usually attached to copyright exceptions.

Since the fair use doctrine can be applied in almost any context, how can you decide whether an intended use may qualify as fair use? Fair use must be evaluated on a case-by-case basis, using a fact specific analysis of four factors for each use of copyrighted material:

  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
  4. The effect of the use upon the potential market for or value of the copyrighted work

The four factors weigh the characteristics in favor and opposing fair use for each use of copyrighted material. All four factors must be considered holistically: no one factor is more important than the others, while a mechanical tallying of pros and cons is also insufficient to determine fair use. In fact, going to court and receiving a decision from a judge is the only way to find out for sure if a use is fair.

Don’t let this deter you from relying on fair use when it makes sense. Some instances of fair use are more obvious than others; if you aren’t sure that an intended use is fair, try to adjust how you are using the copyrighted materials in order to address the weak areas of your fair use analysis. For instance, use less of the work or restrict the audience to improve your standing on factors three and four. Several tools are available to help you evaluate fair use: an interactive tool from OSU’s Health Sciences Library and a printable checklist from Columbia University are two of our favorites.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

February fair use series

February 7, 2014 / / Comments Off on February fair use series

We are featuring fair use in February! Follow this blog and our Twitter (@OSU Copyright) for fair use facts and fundamentals throughout the month of February. We’ll be digging into what fair use really is, highlighting fair use best practices, debunking fair use myths, and sharing our favorite fair use examples. Why not join in the fair use fun and share your questions or experiences with fair use?

If you’re local, join us for the final event – a fair use workshop at The Ohio State University Libraries on February 27 from 1:30-3:00p.m. Whether you know the four factors like the back of your hand or this is the first time you’ve heard of fair use, we invite you to participate. Please sign up for the workshop by emailing LibCopyright(at)osu.edu no later than Thursday, February 20. We hope to see you there!

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Judge Chin grants summary judgment in Authors Guild v Google case.

November 14, 2013 / / Comments Off on Judge Chin grants summary judgment in Authors Guild v Google case.

Summary judgment was granted in favor of Google in the Authors Guild v. Google case. This case has been in litigation since 2005. There have been several attempts at settlement to no avail. Judge Denny Chin outlines his thoughts on Google’s reliance on Fair Use and granted a motion for summary judgment (which means the case has been dismissed) in Google’s favor!  The Authors Guild may still appeal the decision, but for now let’s enjoy this victory! Please read the attached decision. Look for more posts soon.

Many Thanks to Peter Hirtle for sending out the decision!

Authors Guild v Google – Summary Judgment Decision

Copyright Considerations with Electronic Learning

March 11, 2013 / / Comments Off on Copyright Considerations with Electronic Learning

Electronic learning consists of a number of different educational models that allow instructors to deliver instructional content through electronic means. These models include distance learning classes offered through educational institutions (online classes), university course management systems such as OSU’s Carmen, massive open online courses (MOOCs) such as Coursera or edX, and other open educational tools.

These models all function as learning tools, but their structural differences mean that various copyright considerations are raised. Here are some differences to keep in mind:

  • Open v. Closed Structure: Many distance learning classes and course management systems are closed structure, meaning that they are typically limited to a specific number of identifiable enrolled students. MOOCs operate under an open system, meaning a potentially unlimited number of students where enrollment may not be required.
  • Profit v. Non-Profit: Universities and other educational institutes that offer distance learning classes are typically non-profit entities, though for-profit institutes also exist. Two of the largest MOOC providers, Coursera and Udacity are for-profit entities.
  • Instructor Interaction and Student Participation: Like traditional classrooms, distance learning classes include student-instructor and student-student interaction, where individual grading may be based on electronically submitted material or proctored exams. For MOOCs, student-instructor participation may be limited, and students may play a larger role in orchestrating study groups and grading other classmates.
  • Cost: Students enrolled in distance learning classes must pay the tuition required by the provider of the course (ie. the university). MOOCs developed as a free resource and the majority of courses continue to be offered for free.
  • Academic Credit: Students who have completed distance learning courses may elect to receive academic credit for their work. Traditionally, MOOCs did not offer academic credit, however, some universities have been working to offer academic credit or provide the student with verified certificates.

Now that you are familiar with some of the differences in electronic learning models, we can start to look at the copyright issues these differences raise.

1.         Who owns the copyright in the online course? When an original work of authorship is created, such as the development of a course lesson plan or scholarly article, the author of the work holds a copyright in the work. When the author is an employee, however, it may be the case that the employer (the university) is actually considered the author of the work. This is known as the work-for-hire exception.

The general culture surrounding educational institutions is that works of scholarship, unlike lesson plans or other course work materials remain the intellectual property of the instructor. Though some institutions consider scholarly works to be a part of the general course work of the instructor, for clarity, this issue should be discussed so everyone understands the status of each work being produced.

In addition, educational institutions that work with MOOC providers have to understand the terms and conditions of their agreement. MOOC providers may use a Creative Commons licensing scheme, claim ownership of all content that is uploaded (consequently prohibiting copying and distribution of the course work), or something in-between. All terms and conditions should be reviewed to understand the full extent of the restrictions on copyright ownership.

2.          What material can be included in an online course? An instructor or creator of an online course should first consider including their own material to avoid copyright concerns. If the material has been used in the past, for example in the context of prior teachings or publications, the instructor should first confirm that they retain the copyright in the work. In addition, an instructor may include material through the following means:

  • § 110: Federal copyright law allows for some protected materials to be used by non-profit educational institutions, depending on a number of factors. Within a traditional classroom, instructors may display or perform a lawfully made copy of a work, within the context of face-to face teaching, and be protected under § 110(1).  For online courses, use of material is more easily handled through the TEACH ACT (§ 110(2)) (For a checklist of the requirements for protection under § 110(2) click here).  It is not clear whether a university that is non-profit on its own can lose that status when partnering with a for-profit MOOC to provide online classes. But even for non-profit MOOCs, statutory protection under § 110(1) or § 110(2) may be difficult because MOOCs do not limit use of material to a specified number of enrolled students, making limitation on the transmission of material difficult.
  • Fair Use: For-profit MOOCs may still be able to rely on the defense of fair use (§ 107) in the event that copyright issues arise. For a further explanation on fair use factors click here. The material being used in online courses is educational material made available for the purposes of teaching, an example cited within § 107. This may balance out the commercial nature of MOOCs. It is also important to consider the character of the use. Courts have been more inclined to find that the first factor of fair use (purpose and character) is fair when the use of the material is transformative. If an instructor is providing material for the purpose of facilitating discussion/criticism/analysis, then such a use is more likely to be determined to be transformative. It is also important to consider how much of the work is being used. If instructors limit their use to just the portions of the material that is needed, this will help the instructor/university in their fair use argument. Lastly, availability and feasibility of licensing of the material should be considered. If it is easy to obtain a license, and to do so at a fair price, this can weaken a fair use defense.
  • Public Domain: Instructors can include works from the public domain within the course material, or works that are otherwise under an open license.
  • Securing Permission: An instructor can secure permission to use the work from the copyright holder. This permission may often take the form of a licensing fee, which may be at odds with the free structure of many MOOCs.

In addition to considering which materials can be made available to individuals as part of their participation in the course, an instructor or course creator should also consider the issues that may arise in assigning outside reading materials. For traditional face-to-face teaching models, as well as distance learning classes, this usually means purchasing a textbook or other course material through the university book store or copy center. The underlying goal of MOOCs, however, is to provide a free experience to participants.

Many of the same options mentioned above for including material within the course are also options to consider for providing access to materials outside of the course plan: using Creative Commons works or works in the public domain, negotiating new licenses or otherwise obtaining permission from copyright holders for as low of a price as possible, arguing statutory protection under § 110(2), or relying on fair use.

3.         What can participants do with the material? Under the TEACH ACT students may view but not download or otherwise copy materials, but some use of the material may be protected under fair use. Once again, this sort of limitation can pose problems for open courses. If the course material being used is the instructor’s own work, with no limitations placed on further use, or if the work is from the public domain, this issue may be avoided. As with distance learning classes, participants may also wish to rely on fair use, so long as their use is non-commercial and otherwise limited in scope. Lastly, institutions participating in MOOCs may wish to negotiate licensing arrangements with copyright holders in order to allow participants to make copies of the work.

As more educational institutions provide electronic learning options, it is important to be aware of the advantages, limitations and uncertainties that can surround e-learning. Educational institutions and instructors should be conscious of the difference in existing e-learning structures, and how the chosen structure helps to dictate how copyrighted works may be used inside and outside of the electronic classroom. For further information or assistance with questions, please visit the Copyright Resources Center or email libcopyright@osu.edu.

Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.

A New Tool To Help Figure Out Fair Use

February 21, 2013 / / Comments Off on A New Tool To Help Figure Out Fair Use

The Copyright Management Office at OSU Health Sciences Library has developed a new, interactive, online version of the Fair Use Checklist. It is available for anyone to use.

The Fair Use Checklist  is designed to help you work through the four fair use factors in order to make a proper assessment.  This version of the checklist is interactive, allowing you to check the options that pertain to your desired use of a copyrighted work. Once you have completed the four sections of the checklist, you get a summary that shows you the overall picture of your analysis. This is a good way to consider the factors as a whole to see if your use may fall under fair use or not. It also gives you a record of your analysis which you could use to possibly defend against a future claim of infringement.  A copy of your checklist can be sent to you by email.

One great feature of this version of the fair use checklist is that it was designed specifically to work with mobile devices. You can access fair use help wherever and whenever you need to on a smart phone or tablet. It can be a useful educational tool to teach students how fair use works. It can be used in meetings when discussing possible projects in your department. You can also access the checklist when traveling to or attending conferences. Or you can get help making fair use decisions for your own scholarly or research projects in the comfort of your office or lab.

Using the checklist does not give you a definitive yes or no answer as to whether or not your intended use of a copyrighted work is fair use. What it does is help you to think through the four factors of fair use and make an educated assessment. It also gives you the opportunity to rethink your use if it appears that what you originally intended to do may not be fair use. You also have evidence that you considered the fair use factors before you used the material.

For information on fair use and other copyright related issues, take a look at the OSU Libraries’ Copyright Resources Center website.  For help with using the checklist or for any other copyright questions you may have, you can call us at 688-5849, email us at libcopyright@osu.edu or email the Copyright Management Office at OSU Health Sciences Library at copyright@osumc.edu.

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