Tag: Fair Use (page 1 of 4)

An Exploration of Copyright Through Different Disciplines: A Final Stop, Copyright in Engineering and Instructional Design

Hi everyone, my name is Tra’Vaysha Lanae’ Green, and I am a recent graduate of The Ohio State Moritz College of Law. During my time in law school, I focused a lot of my studies on copyright and intellectual property. I am now closing out on my tenure as Copyright Review Assistant for Copyright Services at OSU. I want to extend a special thanks to my supervisor, Maria Scheid, Head of Copyright Services. This would not have been possible without your encouragement and guidance. Also, thank you to everyone who took part in these conversations and everyone reading.

Business was such an exciting stop to our exploration of copyright through different disciplines. For this series installment, I will offer a two-for-one perspective on copyright in Instructional Design and Engineering. I decided to take this approach because, in my mind, there is a building and practical application of engineering and the academic innovative powerhouse that is also engineering. They may not differ for you reading this, but work with me.

I will start with the Instructional Design aspect because it was the most different of conversations I have had. I had the opportunity to speak with Instructional Design Specialists Austin Cush and Andrew Vogel with Engineering Technology Services here at Ohio State University. Instructional designers design instructional materials and courses; they support the efforts of faculty, administration, IT, and others to achieve better student learning and teach instructors to leverage pedagogy and andragogy effectively. They also assist instructors when they run into technical or instructional challenges.

Through this role, Austin Cush and Andrew Vogel have faced many copyright issues, and it is no surprise why. The reason is understandable, faculty want to design their classrooms to be the pinnacle of everything they need to teach students how they see fit, but that does not mean copyright is at the top of their minds when they envision their ideal classroom. Wanting to use photos, videos, and other copyrighted material is widespread. Luckily enough, Ohio State University does have licenses for specific materials. Ensure you are going through proper channels because you can get in trouble, and so can the university, if licenses aren’t followed.

Another big copyright concept to think about in this space is fair use. They informed me that fair use is a term they often hear when people want to use copyrighted material, and I hate to be the bearer of bad news, but fair use is never that easy. While use of materials for educational purposes is a favored use under the first factor of fair use (purpose and character), it is never the end of a fair use analysis.[1] It is a nuanced balancing test that must consider the purpose of your use, the nature of the copyrighted works being used, the amount of the work used, and the potential impact on markets for the work. Educational uses are not automatically fair use. So, to be safe when building your courses, consult with the Instructional Designers.

For the second stop on our exploration of Copyright in Engineering, we shift to the academic and innovative side of things. Through my conversation with Engineering Librarian Patricia Verdines, I learned a ton in this space.

First, there are so many different areas under the umbrella of engineering: computer, chemical, civil, industrial, biomedical, mechanical, electrical, and so many more. These are all very different spaces, but they all have similar copyright issues that students and faculty should be aware of.

Of course, a common theme through academia is ownership of your work. In Engineering, it is essential that you understand this. I learned that students and faculty work with many outside commercial corporations to develop and innovate, such as the Honda program. Those companies usually own the work you do through a contract you signed, so always make sure to read those and ask those questions. However, in no way is this a bad thing. Patricia Verdines informed me that it is a commonplace and a great way to balance the experience, freedom, and recognition you get as a creator in this collaborative and innovative field. These collaborations are similar to what you work on for the school, so always be aware of the Intellectual Property Policy at Ohio State as well.

As engineers, you all may want to work on your projects with your resources, which is fantastic, but you must still protect your work. Patricia Verdines, Ash Faulkner, and Florian Diekmann are representatives of the Patent and Trademark Resource Center (PTRC) at Ohio State University. Students, staff, faculty, and the general public alike can receive information and resources regarding patents, trademarks, copyrights, and trade secrets from the PTRC. So, if you’re working on creating your own code or design and are thinking of patents and trademarks, make sure you’re considering and protecting your copyright as well.

I have learned so much about the intersection of copyright in engineering and instructional design, and I haven’t even scratched the surface. If you have more questions, I highly recommend that you reach out to Austin Cush and Andrew Vogel for instructional design questions and Patricia Verdines for engineering questions. They would be a great resource to talk to. And for more copyright information, you may visit the Copyright Services website.

[1] For more information on fair use, visit the Copyright Services’ Fair Use page at https://library.osu.edu/copyright/fair-use.

An Exploration of Copyright Through Different Disciplines: Next Stop, Copyright in Business

August 5, 2024 / Maria Scheid / Comments Off

On our next stop of copyright through the disciplines, we stop at the home of entrepreneurial spirit and what keeps the world spinning; business!

First, in the last blog post, I explained what copyright can protect, but this time, I want to explain what copyright can’t protect. Copyright does not protect ideas, facts, concepts, systems, or methods of doing something.[1] This sounds like the makings and aspects of business. I did not go into this part of the expedition thinking there would be much to explore with copyright and business, but I was wrong. I got the chance to talk to Business Librarian Ash Faulkner and learned that many copyright issues pop up in business.

Regarding the academic side, I learned that faculty and students should be very aware of copyrighted materials when they give presentations and build classroom materials. The Creative Commons licenses are a big topic of interest for the Business school. Creative Commons licenses allows people to use the licensed work under the terms selected by the copyright owner, without having to negotiate for or pay a licensing fee. By default, all Creative Commons licenses require attribution to the author/creator. It is essential to know what can and can’t be used, of course, but it is also essential to know that if you can use something, you must attribute it correctly. Ash Faulkner says most questions about the copyright go towards attribution. Attribution comes in many forms and through many different means and while attribution is not a requirement under copyright law, it is an issue of academic integrity and may also be a required term of a license or other contractual agreement. So if you’re considering going the business route in school, you may wish to become familiar with Creative Commons licenses, including the Creative Commons requirement for attribution.

Another way copyright shows up in the Business school, like in medicine, is through ownership of scholarship and teaching materials. As I discussed, the work you produce through your writing compositions, PowerPoints, proposals, and so much more, has copyright. It is important to remember that you may initially believe you have that ownership. Know that your ownership of copyright may be impacted under the OSU Intellectual Property Policy. For certain things, it may not be up to you to choose whether to sign over rights in the work if you want to be published, for example, but it is still important to know what rights exist.

Now, what about the logos? What about the brands? Isn’t that important to business? Absolutely, but brands and logos can fall into the area of trademarks. Copyright and trademarks are like siblings, but they are two distinctive things. Trademarks can protect words, phrases, symbols, designs, or combination of these things that identifies goods or services.[2]

As expected but confirmed by Ash Faulkner, trademarks are the bread and butter of the business school. Now, do not get more wrong. You can have a trademark and copyright in something at the same time. Take a design logo, for instance; you can have a trademark in the distinctiveness and brand identifier. You can also have a copyright in the design of the logo itself if it has a minimum degree of creativity. So when you’re flexing your entrepreneurial spirit, remember the copyright because it shows up.

I have learned so much about the intersection of copyright in business, and I haven’t even scratched the surface. If you have more questions, I highly recommend that you reach out to Ash Faulkner. Ash would be a great resource to talk to. And for more copyright information, visit the Copyright Services website.

I look forward to sharing what I learned in the next installment, where I will see how copyright intersects with engineering.

[1] What Does Copyright Protect, U.S. Copyright Office. Available at: https://www.copyright.gov/help/faq/faq-protect.html.

[2] “What is a trademark?,” United States Patent and Trademark Office, available at https://www.uspto.gov/trademarks/basics/what-trademark.

An Exploration of Copyright Through Different Disciplines: First Stop, Copyright in Health Sciences

July 15, 2024 / Maria Scheid / Comments Off

An Exploration of Copyright Through Different Disciplines

Copyright. What is that? No, actually, what is that? If you asked me, a law student, I would probably refer to Article 1 Section 8 of the U.S. Constitution and say Congress has the power “to promote the progress of science and use arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” While this may be what copyright is, I typically hear a different answer when I ask nonlaw students that question.

When conversing with my university peers, I found that the knowledge of copyright varies significantly depending on the college that student belongs to and their major. Unsurprisingly, students in the College of Arts and Sciences knew more about copyright and how it applies to their work—especially the art students. More often than not, the art, film, dance, music, English, and theatre majors knew the exclusive rights they were afforded in their work and, importantly, what copyright issues may arise in their industries. On the flip side, my medicine, business, engineering, public affairs, and agriculture peers appeared more unaware of copyright, how it applies to their work, or what copyright issues may arise in their industry.

That scares me. A person has a copyright in a work when fixed in a tangible medium and made with minimal creativity. If that sounds like a low bar, it is. Now, there is more to that as far as you can’t have copyright in facts, but you can have it in how you present those facts.[1] Nevertheless, you likely have copyright when you write an article, design a farm layout, create software, or record yourself giving a presentation on business plans.

Equipped with my love for copyright and my passion for education, I wanted to create an information blog series highlighting how copyright and copyright-adjacent issues arise for students in health, business, and engineering. I am not promising to spot every possible copyright issue– I genuinely would not be able to do that anyway. What I do hope for is that this at least exists so that if someone is searching about “copyright in X major,” they have somewhere to start.

This is a daunting task. To ensure I am hearing from actual professionals and scholars in this area with whom I need to familiarize myself, I have acquired the help of a group of phenomenal subject matter librarians to aid me in my mission. In this series, I will be looking at copyright issues that show up in Medicine and Health Sciences, Business, and Engineering.

Copyright in Health Sciences

For my first exploration, I picked the College of Medicine and other health sciences. For this one, I talked with Katherine Hoffman and Stephanie Schulte from the Health Sciences Library. Through conversation, I learned about some issues they see regarding copyright in their areas. The two significant areas of copyright they get questioned about are accessing and utilizing copyrighted work and questions about licensing and ownership of works.

Accessing and utilizing copyrighted workpieces is a universal copyright issue. In medicine and health sciences, making a copy of a work for handouts, excerpts of books, and more may be unauthorized. These unauthorized copies infringe on someone else’s copyright and could lead to trouble in your class or workplace if discovered. Stephanie Schulte let me know that the topic of fair use comes up a lot in the discussions of unauthorized access, and while that can be the case, fair use is a nuanced balancing test that must be done in every case, and it may not get you off the hook.[2] Library licensed resources and openly licensed materials may provide options for access,[3] but the case-by-case determination of fair use may still be an issue to be aware of.

Another significant copyright issue that arises is the issue of licensing, and I can understand why. Licensing is a doozy. Whether licensing to use someone else’s work or licensing your work, I learned some important things students of medicine and health science should be aware of. First, there should be a licensing agreement that is preferably in writing. You must know all of the terms of your agreement. Language matters. Is this license transferable or nontransferable? Is it perpetual or not? Exclusive or nonexclusive? Know what you are and are not allowed to do with someone else’s work, and know what you want or do not want someone to do with your work. Licensing can be a lucrative business for yourself, your university, or your place of employment, and licensing can go beyond copyright. You can also license patented works in the form of inventions and tools you may need, so make sure you know what you are signing up for. Ohio State has a detailed Intellectual Property Policy, and I encourage everyone to know it.[4]

The last issue that I want you to keep in mind is ownership. Katherine Hoffman told me that students do not always know what ownership rights they have or do not have in their works. Remember that copyright, authorship, and ownership are not mutually exclusive. You can create a work and not have ownership or copyrights in that work. This happens when you sign away your ownership rights through a contract or license or, in some cases, under the scope of your employment. Again, know the terms of all agreements you take part in. Katherine and Stephanie helped me understand that signing away your rights is standard in the medical and health science professions, especially when publishing or receiving certain credits. So, make sure you know that. It would be unfortunate if you believe you had copyright in the work you created and try to use it in the future only to find out that you signed away those rights and are infringing on that right holder’s copyright.

I have learned so much about the intersection of copyright in medicine and the Health Sciences, and I haven’t even scratched the surface. If you have more questions, I highly recommend that you reach out to Stephanie Schulte and Katherine Hoffman. They would be a great resource to talk to. For more copyright information, visit the Copyright Services website.

I look forward to sharing what I learned in the next installment, where I will see how copyright intersects with business.

[1] What Does Copyright Protect, U.S. Copyright Office. Available at: https://www.copyright.gov/help/faq/faq-protect.html.

[2] The Fair Use Checklist from The Ohio State University Health Sciences Library can be used to work through a fair use analysis. The checklist is available at http://go.osu.edu/fairusechecklist. Adapted from “The Fair Use Checklist ,” Kenneth D. Crews and Dwayne K. Buttler and from “Thinking Through Fair Use ,” the University of Minnesota.

[3] Find Research and Education support from the Health Sciences Library at https://hsl.osu.edu/dept/research-education.

[4] The Ohio State University Intellectual Property Policy (Issued 05/03/1985, Revised 04/22/2024), available at https://policies.osu.edu/assets/policies/IP-Policy.pdf.

Popular Adaptations of Public Domain Works

January 1, 2023 / Maria Scheid / Comments Off

Note: Today is Public Domain Day; the day that we celebrate new works that have entered the public domain. This year, we welcome works first registered or published in the United States in 1927. Works published during that time, that met all required formalities, enjoyed a maximum term of copyright protection of 95 years. With copyright term running to the end of the calendar year, works first published in 1927 officially enter the public domain in the U.S. on January 1, 2023.

Because public domain works are free of copyright, they may be freely copied, distributed, performed, displayed, and adapted. This blog post, by Heidi Bowles, discusses popular adaptation of public domain works.

Copyright in Derivative Works

Copyright provides authors with a bundle of exclusive rights in their creative works, one of which is to create—or authorize others to create—adaptations of their work. When a work enters the public domain, it becomes free for creators to adapt without worrying about seeking permission, paying royalties, or meeting an exception under copyright law. The lack of copyright restrictions makes it easier for authors to use public domain works for their adaptations. It is important to note that copyright terms can vary from country to country, so materials that are in the public domain in one country may still be protected by copyright in another.

Derivative works, in terms of copyright, are any works that are based on preexisting material.[1] When an author creates a derivative work, they only own the copyright in their new creative expressions (assuming that they used the work lawfully—any unlawful use of copyrighted material is not protected by copyright). Authors of derivative works do not have any copyright in the underlying work or in the elements of their new work that they took from it.[2] For a list of common types of derivative works, see the U.S. Copyright Office’s Circular on Derivative Works and Compilations.

Take, for example, Kenneth Branagh’s delightful and faithful 1993 movie adaptation of William Shakespeare’s play Much Ado About Nothing. This film used Shakespeare’s original dialogue and setting, which is in the public domain. No adaptation can create a new copyright in the original work. There is, however, a new copyright in the typesetting of the script and recording of the performed dialogue, which could make distributing a copy of the script or film a copyright infringement. However, because the elements taken from the original work remain free from copyright, anyone is free to transcribe Shakespeare’s original dialogue from the movie and distribute it without worrying about copyright.

Less faithful works have more independent and copyrightable elements, like Disney’s 1994 animated movie The Lion King, adapted from Shakespeare’s play Hamlet. In a loose adaptation like this, it is more complicated to determine which elements are public domain and which belong to Disney, but essentially, the copyrightable elements taken directly from Hamlet remain public domain, while the new original elements added by Disney are protected by copyright.

Copyright does not protect ideas or concepts, only their tangible, fixed expression. It can be helpful to consider which elements of a story could be copyrightable:[3]

Not copyrightable:

Scènes à faire (elements that are customary or obligatory for a genre)
General themes
Overall plot
Names, titles, slogans, short phrases, and catch phrases

Copyrightable:

The specific expression of scènes à faire, an idea, theme, or overall plot
Characters
Dialogue
A recording of the performance

Therefore, Disney does not have an exclusive right in Hamlet retellings with an animated animal cast, but they do have an exclusive right in the particular way that they did it.

The iconic scene where Scar kills Mufasa is a good example to look at. Disney does not have a copyright in the idea of the king being killed by his brother so the brother can take his place, which was taken from Hamlet (neither would Shakespeare, for the record, if there had been copyright laws in 1600—fratricide is a common and intangible idea and therefore not copyrightable). They also would not likely have a copyright to Scar’s final words to his brother, “Long live the king,” even if they were original to them, because as a short phrase it is not likely substantial enough to be copyrightable. They do, however, have a copyright in other specific elements that they used to express this plot point—Scar holding Mufasa up by his claws, sneering, and dramatically letting go so that Mufasa falls off the cliff into a stampede blow. This specific and original expression of fratricide is what is copyrightable, not its use in the story.

Fair Use

Public domain materials are not the only available option for creating derivative works without the rightsholder’s permission. There are exceptions in the law that allow copyrighted works to be transformed without paying royalties or asking permission from the copyright owner.

The fair use doctrine allows for the use of copyrighted works in certain circumstances, which is determined using a four-factor test that considers the purpose of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect of the use on the market for the copyrighted work. Fair use is purposely vague to avoid unnecessarily limiting the use of copyrighted materials, but this vagueness could also result in uncertainty about whether a use is a fair use or an infringement until it is challenged in court.

So, while there are certainly many derivative works that are considered fair use, the lack of certainty with the fair use doctrine could mean that some creators would prefer the option of using public domain materials when creating derivative works.

Other Examples Based on Public Domain Works

DISCLAIMER: this list is nowhere near comprehensive and is heavily biased in favor of my personal tastes

Shakespeare’s plays have been frequently adapted. A musical adaptation of one of his best-known plays, Romeo and Juliet, gave us one of the most recognizable love themes in modern American culture (Tchaikovsky’s “Romeo and Juliet Fantasy Overture” TH. 42, which itself is in the public domain and used in many movies and TV shows). Some other notable adaptations of Romeo and Juliet include:

West Side Story (1957, 1961, and 2021)
Gnomeo and Juliet (2011)
The Lion King II: Simba’s Pride (1998)

Other popular movies adapted from Shakespeare’s plays include 10 Things I Hate About You (1999; Taming of the Shrew), She’s the Man (2006; Twelfth Night), and Ophelia (2018; Hamlet).

Jane Austen’s classic novel, Pride and Prejudice, is another frequently adapted story. Some recognizable works adapted from Pride and Prejudice include:

The Lizzie Bennet Diaries (2012)
Fire Island (2022)
Pride and Prejudice and Zombies (2016)
Bride and Prejudice (2004)
Bridget Jones’s Diary (2001).

Other Notable Movies and TV Shows:

Clueless (1995; Jane Austen’s Emma)
Monty Python and the Holy Grail (1975; legend of King Arthur)
O Brother, Where Art Thou? (2000; Homer’s The Odyssey)
Anne With an E (2017-2019; Lucy Maud Montgomery’s Anne of Green Gables)
Treasure Planet (2002; Robert Louis Stevenson’s Treasure Island)
Shrek the Third (2007; legend of King Arthur)

For more information on when a work becomes public domain, see Copyright Term and the Public Domain from Cornell Libraries. For a discussion of what is fair game and what is infringement in similar stories, see Protecting Your Stories by Mark Litwak.

Have any questions? Contact Copyright Services at libcopyright@osu.edu.

This post is authored by Heidi Bowles, current student at the UC Davis School of Law and former research assistant at Ohio State University Libraries’ Copyright Services.

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[1] “Derivative work” is defined in 17 U.S.C. § 101 as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ‘derivative work.’”

[2] 17 U.S.C. § 103

[3] For more information on the scope of copyright, see the Copyright Office’s Circular on Works Not Protected by Copyright.

Back to the Basics with Copyright Law

August 3, 2018 / Maria Scheid / Comments Off

Today is the 9^th anniversary of the Copyright Corner blog, with the first post (Why Copyright Education?) published back in August of 2009. Since then, we’ve had posts covering a wide-range of issues; from copyright protection for patterns and DMCA exemptions to copyright issues faced by units across OSU Libraries and tips on finding a copyright owner. For this post, we are going back to the basics and looking at some of the fundamentals of copyright law in the United States.

Why do we have copyright?

There are a number of theories on the purpose of copyright. Countries may have laws that encompass one or more of these theories.

One common theory for the purpose of copyright is utilitarian. Under this theory, we provide authors a copyright in the works they create as an incentive to create and disseminate new works. The law is organized to promote the collective welfare of society, but recognizes that unless creators can recoup the costs involved in the creation and dissemination of their works, they won’t produce the works. Copyright gives to authors and creators exclusive rights in the works they create, which in turn allows them to suppress competition for a limited time.

Much of U.S. copyright law seems to align with this theory, with Article I, Section 8, Clause 8 of the U.S. Constitution granting Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”

Another theory for the purpose of copyright is the author’s rights theory. Under this theory, the primary purpose of copyright is to recognize and protect the emotional bond between artists and their creations, acknowledging creative works as manifestations and extensions of their author’s personality. Countries whose laws are influenced by this theory may provide moral rights for authors and creators that exist separately from economic rights.

What exactly is copyright and how do you get it?

Copyright is a legal right that allows creators and authors the ability to control certain uses of their works. The owner of a copyright has a number of exclusive rights that are provided under the law (these rights are discussed below).

In the U.S., copyright protects original works of authorship that are fixed in a tangible medium of expression and copyright exists at the moment of fixation. In other words, copyright protection is automatic.

Including a copyright notice (e.g., © 2018 The Ohio State University) is optional for works created today but there can be some advantages to including a notice on your copyrighted work. And registration with the U.S. Copyright Office? That’s also an optional step that provides some important benefits to copyright holders.

Articles of Interest: July-December 2017

January 19, 2018 / Maria Scheid / Comments Off

This post highlights articles published in the second half of 2017 with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided when available; [OSU full-text] links will connect authenticated users through The Ohio State University Libraries, while [OA full-text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation in the comments!

Copyright

Bailey, J. (2017). How Copyright Law Works for YouTube. Copyright & New Media Law, 21(4), 5-7. [OSU full-text]

Christou, C. (2017). Copyright in 2018. Information Today, 34(10), Cover-29. [OSU full-text] / [OA full-text]

McCord, G. (2017). A Few Secrets About Fair Use. Copyright & New Media Law, 21(4), 8-10. [OSU full-text]

Myers, C., Taylor, T., & Wesolek, A. (2017). An Interview with Peter Jaszi, Professor of Law, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic. Journal of Copyright in Education and Librarianship. 2(1), 1‒8. doi.org/10.17161/jcel.v1i2.6970. [OA full-text]

Perez, J. E. (2017). Images and the Open Educational Resources (OER) movement. Reference Librarian, 58(4), 229-237. doi:10.1080/02763877.2017.1346495. [OA full-text]

Pike, G. H. (2017). NAFTA and its IP provisions at risk. Information Today, 34(10), 18. [OSU full-text]

Russell, C. (2017). The latest on H.R. 1695/S. 1010. College & Research Libraries News, 78(7), 398. [OSU full-text] / [OA full-text]

Libraries

Butler, B., & Russell, C. (2017). Section 108 revision: Nothing new under the sun. Journal of Copyright in Education and Librarianship. 2(1), 1‒37. doi.org/10.17161/jcel.v1i2.6972. [OA full-text]

Oltmann, S. s. (2017). Intellectual freedom in academic libraries: Surveying deans about its significance. College & Research Libraries, 78(6), 741-760. [OSU full-text] / [OA full-text]

Vargas, M.A., & Bright, J. (2017). Rev your engines: Racing ahead with mass digitization. Computers In Libraries, 37(7), 4-8. [OSU full-text]

Publishing & Scholarly Communication

Narayan, B., & Luca, E. (2017). Issues and challenges in researchers’ adoption of open access and institutional repositories: a contextual study of a university repository. Information Research, 22(4), 1-14. [OSU full-text] / [OA full-text]

Sterman, L. (2017). The enemy of the good: How specifics in publisher’s green OA policies are bogging down IR deposits of scholarly literature. College & Research Libraries News, 78(7), 372-401. [OSU full-text] / [OA full-text]

Yeates, S. (2017). After Beall’s ‘List of predatory publishers’: Problems with the list and paths forward. Information Research, 22(4), 1-6. [OSU full-text] / [OA full-text]

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By Maria Scheid, Copyright Services Specialist at Copyright Services, The Ohio State University Libraries

Copyright in CarmenCanvas Guide: New resource demonstrates best practices for sharing copyrighted content in Carmen courses

October 3, 2017 / Maria Scheid / Comments Off

Does your course include movies, text, pictures, or audio that you did not create? Are you planning to share materials you created with your students? To help instructors in the creation of their Carmen courses, we’ve put together the Copyright in CarmenCanvas Guide. It will help readers understand copyright law, specifically in the context of creating Carmen courses. While it is not legal advice, it is both a wealth of information and a multi-media demonstration of copyright best practices for sharing content through Carmen.

Readers can begin with the syllabus, gaining a topical overview of the information in each module of the Guide. The modules in the Guide are in order from most open (materials that may be used in a course without copyright limitation), to most restrictive (materials and uses that will require permission from the copyright owner). Each module begins with an introduction page describing the topics to be discussed in the module. After the introduction, each page within a module contains an explanation and one or more demonstrations of best practices relevant to the topic at issue. A listing of helpful resources is also included within each page, for those seeking more information on the topic. The introduction page of the Guide provides additional resources for those who wish to improve their general understanding of copyright and related issues.

Modules do not need to be completed in any particular order. However, we do encourage readers to explore all the modules to become familiar with the many options available to course creators as they pull content into their courses.

Whether a reader visits one page, or reviews the entire Copyright in CarmenCanvas Guide, it is a great resource for anyone creating courses at The Ohio State University.

Contact our office with additional questions.

Website: go.osu.edu/copyright

Email: LIBCopyright@osu.edu

Twitter: @OSUCopyright

Phone: 614-688-5849

__________________________________________________________________________________
By Maria Scheid, Rights Management Specialist at Copyright Services, The Ohio State University Libraries

Articles of Interest: July-December 2016

February 9, 2017 / Maria Scheid / 1 Comment

This post highlights articles published in the second half of 2016 with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Links to the full-text articles are provided when available; [OSU full-text] links will connect authenticated users through The Ohio State University Libraries, while [OA full-text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation!

Copyright

Bailey, L. (2016). How Copyright Law is Promoting Cultural Amnesia. Copyright & New Media Law, 20(2), 1-5. [OSU full text]

Kristof, C. (2016). Data and Copyright. Bulletin Of The Association For Information Science & Technology, 42(6), 20-22. [OA full text]

Matulionyte, R. (2016). 10 years for Google Books and Europeana: copyright law lessons that the EU could learn from the USA. International Journal Of Law & Information Technology, 24(1), 44-71. doi:10.1093/ijlit/eav018 [OA full text]

Menard, G. (2016). Copyright, digital sharing, and the liberal order: sociolegal constructions of intellectual property in the era of mass digitization. Information, Communication & Society, 19(8), 1061-1076. doi:10.1080/1369118X.2015.1069872. [OSU full text]

Price, D. (2016). Stop Using Our Songs!. Copyright & New Media Law, 20(3), 5-9. [OSU full text]

Reymond, M. J. (2016). Lenz v Universal Music Corp : Much ado about nothing? International Journal Of Law & Information Technology, 24(2), 119-127. doi:10.1093/ijlit/eav021 [OA full text]

Tehranian, J. (2016). Constitutionalizing Infringement: Balancing Copyright and Free Speech. Copyright & New Media Law, 20(3), 1-4. [OSU full text]

Copyright Education

Estell, A., & Saunders, L. (2016). Librarian Copyright Literacy: Self-Reported Copyright Knowledge Among Information Professionals in the United States. Public Services Quarterly, 12(3), 214-227. doi:10.1080/15228959.2016.1184997 [OA full text]

Jaszi, P., Remington, M., Ivins, O., & Dyas-Correia, S. (2016). Copyright and Intellectual Property: What You Need to Know. Serials Librarian, 70(1-4), 34-43. [OA full text]

Libraries

Ensign, D. (2016). What is Kirtsaeng and Why You Should Care. Kentucky Libraries, 80(3), 27-28. [OSU full text]

farrelly, d. (2016). VHS Copyright and Due Diligence. Library Journal, 141(20), 16. [OSU full text] / [OA full text]

Miller, R., & Homol, L. (2016). Building an Online Curriculum Based on OERs: The Library’s Role. Journal Of Library & Information Services In Distance Learning, 103(3/4), 349-359. doi:10.1080/1533290X.2016.1223957 [OSU full text]

Peet, L. (2016). Sci-Hub Sparks Critique of Librarian. Library Journal, 141(15), 14-17. [OSU full text] / [OA full text]

Publishing & Scholarly Communication

Bennett, L., & Flanagan, D. (2016). Measuring the impact of digitized theses: a case study from the London School of Economics. Insights: The UKSG Journal, 29(2), 111-119. doi:10.1629/uksg.300 [OSU full text] / [OA full text]

Laakso, M., & Lindman, J. (2016). Journal copyright restrictions and actual open access availability: a study of articles published in eight top information systems journals (2010-2014). Scientometrics, 109(2), 1167-1189. doi:10.1007/s11192-016-2078-z [OA full text]

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Copyright Roundup, Part III

July 19, 2016 / Maria Scheid / Comments Off

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis. The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library. In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development. In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work. Take for example, the simple task of printing this blog post. Think about what’s really happening. The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer. Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies. However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development. Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration. This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

Google Launches YouTube Fair Use Protection Program

February 22, 2016 / Maria Scheid / 1 Comment

On November 19, 2015, Google announced the launch of a new Fair Use Protection Program, promising to provide legal support for a select group of videos determined by Google to represent “some of the best examples of fair use.”[1] Videos selected for inclusion in the program will be kept live on YouTube in the U.S. and will be featured as strong examples of fair use in YouTube’s Copyright Center. In addition, should the selected videos be subject to a lawsuit for copyright infringement, Google will provide up to $1 million to cover legal fees.[2] In celebration of Fair Use Week 2016, we are looking more closely at the videos Google has selected for inclusion in its Fair Use Protection Program and discussing what impact the program may have for content creators on YouTube.

The Four Factors of Fair Use

Fair use is found in Section 107 of the U.S. Copyright Act and functions to limit the exclusive rights of a copyright owner. If the use of a work is a fair use, no permission is required from the copyright owner to use the work—the law states that a fair use of a copyrighted work is not an infringement of copyright. The law provides a number of different illustrative examples of potential fair uses, including use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Ultimately, however, it is up to a court to decide if a use is a fair use. Courts consider and weigh four factors in light of copyright’s purpose of promoting science and the arts, in order to make a fair use determination. These four factors include:

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

You can learn more about these four factors by visiting go.osu.edu/fairuse.

Looking at the Selected Videos

Google selected an initial four videos for inclusion in the Fair Use Protection Program. In viewing the videos, what are some of the factors that may make these four videos stand out to Google as strong examples of fair use?

[youtube https://www.youtube.com/watch?v=videoseries?list=PLbpi6ZahtOH6WuBGUkUf8Z_w5jO87qcT4]

1. “Raging Citizens/The Simplest Game- Everything is Not Perfect,” a 5 minute video uploaded by Jim Sterling, includes complete trailers from two video games released by MOO Tech: Raging Citizens and The Simplest Game. Included with the two trailers is audio commentary, provided by Mr. Sterling, and a screen shot of negative comments made against MOO Tech on a user forum.

Factors favoring fair use: Mr. Sterling’s own video served as a criticism of both MOO Tech video games, making his use of the works transformative. The previously published trailers were shown in their entirety in order to comment on the inappropriate inclusion of content, the ambiguous directions provided, and the overall ineffectiveness of the trailers to garner interest in the video games or support the asserted simplicity of the product. While this criticism may cause harm to the market for the video games, this is not the type of harm courts are concerned with under the fourth factor—courts focus on the harm caused by usurping demand rather than the harm caused by suppressing demand.

2. “Speedebunking: Mister UFO,” uploaded by UFOTheater, is a video that features a video clip originally uploaded to YouTube by Mister UFO. The clip in question is alleged live footage of UFO activity. The original clip from Mister UFO, approximately 18 seconds long, is shown multiple times and is accompanied by audio commentary from UFOTheater.

Factors favoring fair use: Like other videos posted on its YouTube channel, UFOTheater used the previously published Mister UFO clip in order to provide criticism of a work they identified as a UFO hoax. While a large majority of the original work was used, such an amount was necessary to support the criticism that the original video was a 100% computer generated shot and not actual live footage. In the new video, clips from the original video were paused and enlarged as UFOTheater directed the viewer’s attention to elements of the recording requiring further analysis. In addition, the name of the original video was provided in the original box, making it easier for others to locate the work.

3. “Questionable questions,” uploaded by NARAL Pro-Choice Ohio, features short clips of Ohio Channel’s footage of an Ohio House Finance Committee hearing. The clips include testimony from two sixth-grade girls speaking on the issue of funding for arts programs in their school district, as well as responses from select representatives. Clips from two representatives include comments and questions related to the “recruiting” of the girls for potential dating relationships with representatives’ grandsons.

Factors favoring fair use: The clips are used to comment on the appropriateness (or lack thereof) of questions posed by representatives to the girls testifying before the Committee. The clips were punctuated with still frames of text explaining what is happening in the hearing in order to direct the viewers’ attention to the content of the questions being asked. The video ends with a final question; “Can’t girls come before the Ohio General Assembly without facing questions on their marriage prospects?” The hearing video was previously published on the Ohio Channel website and is likely to be considered a more factual-based work. In addition, Ohio Channel’s entire hearing video totaled over five hours, approximately three minutes of which was included in the video uploaded to YouTube by NARAL Pro-Choice Ohio. A link to the original video was also provided.

4. “Rachel Dolezal White NAACP President Passing As Black,” uploaded by KevOnStage, features a number of pieces of media, including interview footage, copies of photographs, and screenshots of Instragram and Facebook posts. These works are featured alongside video and audio commentary from KevOnStage explaining recent allegations that Rachel Dolezal, a local NAACP chapter president, had lied about her race.

Factors favoring fair use: KevOnStage’s use of previously published copyrighted content was done for the purpose of news reporting, education, and commentary. The inclusion of all of the media was used to establish a pattern of false representation from Ms. Dolezal—she had continuously presented herself as black though it had been revealed by her own parents that she was born white. Use of entire photographs or written posts was needed in some instances to show the full context of the image or message. In other instances, only clips or cropped versions of works were presented, including 30 seconds of a 9 minute interview. KevOnStage also used the content as a basis for future discussion, prompting viewers to provide their own thoughts on the issue.

How Are Content Creators on YouTube Impacted?

YouTube is a platform that provides a way for content creators and users to share creative works that include music, images and videos. The Fair Use Protection Program serves as a useful educational tool for copyright owners whose content has been used by others. As Google acknowledges in their Copyright Center, sometimes takedown requests target videos that are more obvious examples of fair use. While copyright owners have a number of exclusive rights in their copyrighted works, the law carves out many authorized uses that do not require permission from the copyright owners. A fair use of a work is a use that is authorized under the law. And as held recently by the Ninth Circuit, copyright owners must consider fair use before sending a DMCA takedown notice.

Google’s actions are an acknowledgement and affirmation of the importance of fair use in U.S. copyright law and are motivated by the recognition that potential litigation and takedown processes can be confusing and consequently frightening experiences for creators faced with accusations of infringement.

With the large amount of videos uploaded to YouTube every day, Google cannot provide legal protection to all videos that are likely to qualify as a fair use. Google’s selection of a handful of videos, however, provides content users and creators more information and direction on their rights under U.S. law and the important role fair use plays in promoting the purpose of copyright. While fair use is ultimately decided by the court, users may refer to the videos as visual examples of works that encapsulate factors courts have regularly held to favor fair use.

Check out the many Fair Use Week 2016 events by visiting fairuseweek.org and join us on Twitter (@OSUCopyright) for a celebration of fair use throughout the week!

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

[1] Fred von Lohmann (2015, Nov. 19). A Step Toward Protecting Fair Use on YouTube. Retrieved from http://googlepublicpolicy.blogspot.com/2015/11/a-step-toward-protecting-fair-use-on.html.

[2] YouTube’s Fair Use Protection. Retrieved from https://youtube.com/yt/copyright/fair-use.html#yt-copyright-protection.

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