Purpose of Course: These materials explain copyright basics: the
law’s purpose and how it achieves it; what it protects and for how long, what
are an owner’s exclusive rights and what are the rights of the public that
limit the owner’s monopoly. They further explore the fair use provision, the
fair use guidelines and getting permission as well as the right of teachers to
display and perform works for students in their classrooms, both face-to-face
and remote. Finally, they address the issues raised by recent changes in the
law and technology and their effect on the balance copyright law must achieve
between the interests of copyright owners and the users of their works.
Why do we have copyright law?
Until
recently, most people did not have to know anything about copyright law. Today,
even the Sunday comics refer to copyright and the need to understand it. Once
people begin to look at the law seriously, however, especially at how it works
in the digital environment, many conclude that it just doesn’t seem to make
much sense.
But,
if you go back to the beginning, copyright law certainly started out making
sense. In fact, it has a very important purpose, a purpose so important
that it is stated in the
As
you explore some of these sections, the copyright basics, you will observe this
interplay and see how the law achieves its purpose. I think you’ll agree that
when you look at it this way, the law is reasonable. But, this
understanding will also reveal why new technologies and changes in the law to
address them have the potential to undermine the very balance necessary to
achieve the Constitutional purpose of the law.
T/F The purpose of copyright law is to make famous
authors and
What does copyright protect?
While
it may seem that copyright protects everything these days, in truth it only
protects unique ways of expressing ideas once the expressions are fixed
in a tangible medium. Protection only requires a minimum amount of
creativity. Just as important as what it does protect is what it does not
protect: Copyright does not protect the facts included in a work or
the ideas, processes or systems that may be described in a work.
Anyone can use facts and ideas in a work at any time, if they have access to
the work.
This
is our first example of how copyright law achieves its purpose. It’s easy to
see how reserving protection for original expression only, and excluding
ideas and facts from protection promotes the growth of knowledge. Thus, the
limits within the definition of copyrightable work are an important part of the
way copyright fulfills its constitutional mandate.
Choose the items below that are facts, ideas, systems or
processes and therefore outside copyright’s protection and free for use by
anyone at any time.
1. The
facts contained in a news report
2. A
photograph of a sunset
3. A
time management system described in a book
4. The
table of contents of a book
When does copyright protection begin and end?
Today,
copyright protection begins at the moment that a work is fixed in a
tangible medium. For example, the information that you are reading now was
protected the moment I hit the "save" key for the first time. This
protection is automatic. I didn’t need to do anything to secure it –
there is no registration or notice (“c-in-a-circle”) requirement.
This
comes as a surprise to most people, because it wasn't always like this. The
law changed dramatically in 1978. Until then, the term of protection began
when a work was published with the proper copyright notice. Works published
between 1923 and 1978 are protected for 95 years.
Works
published after 1978 have a different kind of term: an author’s works
are protected during his lifetime, plus 70 years. The term is referred to as, “life
of the author plus 70 years.”
Finally,
unpublished works created before 1978, when such works would not have been
protected at all, came under protection in 1978 for the longer of the life of
the author plus 70 years or until
Once
a work reaches the end of its term of protection, it becomes a part of the rich,
shared resource available to everyone to use however they wish, in effect, a
creative cornucopia: the public domain. All works published before 1923
and works published between 1923 and 1978 without the proper copyright
notice are in the public domain. Further, all works published between
1923 and 1964, when the initial term of protection was only 28 years, may
be in the public domain if the copyright was not renewed. By some
estimates, 90-95% of all copyright registrations during that time were not
renewed. Check the Copyright Office’s
records to determine whether a copyright was renewed.
Do
our current terms of protection seem really long? They used to be much shorter:
as indicated above, for most of the 20th century the term was 28
years from the date of publication plus an optional 28 year renewal term.
When copyright terms were shorter and it required some deliberate act to claim
copyright protection (publication with a proper notice), copyright’s balance
favored public access and use more than it does today. The changes in this area
are strong evidence of a shift in the balance, away from public use and towards
commercial interests.
T/F The public domain is a big black hole into which
works fall, never to be seen or heard again, so longer terms providing more
control to copyright owners are a good idea.
What are the rights of authors?
An
author's exclusive rights include the right to make copies, create
derivative works, distribute, display and perform works publicly, and give
others permission to exercise the author's rights. Infringements are identified in terms of
which exclusive right is violated, that is, exercised by someone without permission
or legal authorization.
Clearly,
this set of exclusive rights is an important aspect of the complex way
copyright achieves its purpose. These rights constitute the “incentive”
the law gives to authors to get them to create:
for the entire term of protection, the author has the exclusive right to
control much of what others may do with his work.
Many people wonder whether they need permission to link
to someone’s Website. Which is the best answer to that question?
1. The
copyright law gives the copyright owner complete control over his Website,
including the right to control who links to it, so permission is required.
2. The
right to control links is not among the exclusive rights of the copyright owner
and a person who provides a link to someone’s page doesn’t actually exercise
any of the owner’s exclusive rights in doing so, so permission is not required.
What are the rights of users that limit the rights of copyright owners?
The
rights of copyright owners are exclusive, meaning that only they may
exercise them, but they are not absolute. There are many
provisions of the Copyright Act that place important limits on the owner's
rights. The law has to do this to achieve its purpose. Here we can clearly see
that the purpose matters. If the purpose of copyright law were to maximize the
profits of copyright owners we wouldn’t need any limits. We could let copyright
owners control every single use of their works. But, because the purpose is
to maximize the growth of knowledge, we need limits on the author’s power to
control all uses of a work.
Those
limits of special importance to you as an educator include Section 107,
permitting fair uses of works without the owner's permission; Section
108, permitting libraries to archive works, to make copies for patrons
and to participate in interlibrary loan operations, among other things; and Section
109, permitting all of us to lend, give away, even sell our copies of a
work without regard to the wishes or the pocketbook of the copyright owner.
This provision, called the first sale doctrine, is the backbone of our public
library system and one of the principle ways that copyright law achieves its
purpose to facilitate public access to the ideas contained in copyrighted
works. Section 110 permits certain educational performances and
displays in face-to-face teaching and in distance learning. Section 121
permits state Commissions for the Blind and similar entities to make copies
without permission where a copyright owner has not made special versions for
the disabled available itself.
It
is important to understand that all of the limitations, individually,
and taken together, are critical to the achievement of copyright's purpose,
to improve our society by increasing knowledge. They are just as important as
the exclusive rights the law gives to authors. Together the exclusive rights
and the limits on those rights provide a balanced approach.
What role do limits play in achieving copyright’s
purpose?
1. They
interfere with the owner’s right to exercise absolute control over his personal
property and should be eliminated.
2. They
support the growth of knowledge by providing a counterbalance to what might
otherwise be absolute control by copyright owners.
The role of fair use.
Just
as the Copyright Act in general works by balancing interests, with some
provisions providing rights to owners and some providing rights to users, fair
use also balances interests: it balances the interests of copyright
owners to control the use of their works so that they can take full advantage
of their incentive, and the interests of the public for access to the works and
the ideas in them. Fair use is often described in this regard as addressing
First Amendment concerns. One can imagine that copyrights could easily be
used to interfere with speaking and listening, were the exclusive rights also
absolute. Fair use gives us some "breathing room." One of the best
examples of this is reliance on fair use to quote from a work in order
to take issue with it or criticize or otherwise comment upon it. No copyright
owner can legitimately refuse to permit such use, because it is a fair use and
does not require the owner's permission.
Fair
use also addresses the failure of our markets at times to facilitate
important uses of works that just do not make economic sense. For example,
in many cases, the cost to locate, contact and negotiate with a copyright owner
is many, many times more than the price that the owner would ultimately charge
for the use of his work. When it does not make sense for the owner and buyer of
rights to do business, fair use can "step in" and bridge the gap by
making it legal for the buyer to make the use of the owner's work without
having to carry out the uneconomic transaction. A good example of this kind of
use is including a few images or short audio or audiovisual clips in an
educational multimedia work for classroom use where getting permission might
be practically impossible.
So,
fair use supports the achievement of copyright’s purpose by letting people use
works, that is, letting them make copies, modify a work, distribute, display
and perform works publicly, when those uses further copyright’s goals, just so
long as those uses do not significantly affect the copyright owner’s incentive.
"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
4. The effect of the use upon
the potential market for or value of the copyrighted work
The fact that a
work is unpublished will not itself bar a finding of fair use if such finding
is made upon consideration of all of the above factors."
This
is the fair use statute as set out in Section 107 of the Copyright Act. It has
two parts. The first part describes uses that are typical fair uses: criticism,
commentary, news reporting, teaching (including multiple copies for classroom
use), scholarship and research. This list is not exhaustive, however, and even
a use that is listed may not be a fair use. That's because each proposed fair
use must satisfy the second part of the statute: the four factors the statute
lays out for consideration in each case.
1.
The purpose and character of the use;
2.
The nature of the copyrighted work to be used;
3.
The amount and substantiality of the part used;
4.
The effect of the use on the market for or value of the work.
While
this test began as a judicial construct for evaluating fair uses, it is very
relevant to us today since it is the way we make our best estimate as to
whether a court would agree with our assessment of whether a use is fair. The statute employs a "weighing and
balancing" technique that introduces many opportunities for judgment. It
is quite possible for two people to consider the same use and come to different
conclusions about whether it is fair. I have summarized my knowledge about how
the fair use test works in the article, "Fair Use
of Copyrighted Materials," and it is available to you any time if you
would like to review how this test works.
The
important thing to see at this point is that fair use is not a blanket
exemption for educators or their students. It’s an exemption that permits
certain uses of certain works for certain purposes, taking into consideration
the interests of the copyright owner.
Here’s
how it works:
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The
first factor is the character of the use. Here courts look at whether a use is
nonprofit and educational or commercial and for profit, as well as other
indicators of how important the use is to the achievement of copyright’s
purpose and whether it undermines the incentive to authors.
A
use that is nonprofit and educational weighs in favor of fair use; a use that
is commercial weighs against fair use.
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The
second factor is the nature of the material used. Here the courts look at
whether the work used is published or unpublished; factual or highly creative;
non-fiction or fiction. We have a wider scope of fair use in works that are
more factually based, because as we learned earlier, facts are not protected at
all. The way we implement this wider scope is by having this factor weigh in
favor of fair use for factual works and weigh against fair use for highly
creative works. Many works are of course, a mixture of fact and fancy. In these
cases, this factor can be more or less "neutral."
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The
third factor evaluates the amount and substantiality of the part used. Small
amounts favor fair use; large amounts favor getting permission. Again, it’s
fairly easy to see how this factor balances the interests of the copyright
owner with the interests of the public for use of the work. But this factor is
not rigidly applied: a small use that is the heart of a work might weigh
against fair use. Similarly, in some contexts using all of a work is
appropriate. For example art history is usually taught using images of entire
works of art and it would not be appropriate to expect educators to use some
portion of a work.
Both
of these examples of the flexibility of fair use show how sensitive it is to
the interests of copyright owners on the one hand, and to uses that further the
goal of copyright on the other.
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This
factor asks, "If the use were widespread, would the copyright owner be
losing money?" Well, actually, it asks, "If the use were widespread, and
the use were not fair, would the copyright owner be losing money?"
After all, if the use were fair, the copyright owner would not be entitled to
any money at all, so he couldn’t “lose” what he never would have had to begin
with.
Well,
when you include in your assumptions the very conclusion that you are trying to
reach (you assume a use is not fair in the process of trying to
figure out whether it is fair), you violate a
principle of logic – you engage in "circular reasoning."
Courts
deal with this propensity of the fourth factor to encourage circular reasoning
by looking at the first three factors before evaluating the fourth. If the
first three indicate that the use is likely fair, courts will not permit the
fourth factor to convert an otherwise fair use to an infringing one. On the
other hand, if the first three factors indicate that the use is likely not
fair, courts are willing to consider lost revenues under the fourth factor. In
this case they do not have to assume the conclusion in order to reach it. They
reach the conclusion based on good evidence that the use is not fair.
Again,
look at how balanced this is, how it adjusts to various circumstances to yield
reasonable results – results that permit important uses but not at the expense
of the copyright owner’s incentive.
T/F The fundamental concept behind fair use is that
certain uses that both further the goals of copyright and do not
interfere with the copyright owner’s reasonable expectation of a return on his
investment should be allowed without the need for permission from the owner.
T/F The fair use test is not actually relevant for regular
people; it is only a test used by courts in lawsuits.
Fair use guidelines.
Because
the fair use test is a bit ambiguous, copyright owners and users have worked
together to try to identify some concrete examples of fair uses in various
educational contexts. The agreements reached are referred to as
“guidelines.” None of these guidelines applies to any commercial for-profit
use; only nonprofit educational uses are covered. Most of the guidelines were
created at the urging of government officials, but none has the force of law.
In every case, they do not define the limits of fair use, but rather the
minimum of fair use, a safe harbor, so to speak. The guidelines are much
more specific than the statute, giving actual amounts of works that can be
used in many cases. The trouble is that the amounts are pretty small. That and
other limits imposed on the uses can make the guidelines less useful than they
might otherwise be. This doesn't mean that they should not be used as a
starting point, because if a use fits within them, you and your students can be
assured that the use is fair. If a use exceeds them, you still can use the
statute’s four-factor fair use test. Thus, using both the guidelines and the
statute gives you the maximum flexibility.
Let’s
look at one example of guidelines – using others’ materials to create
multimedia works. Generally these guidelines suggest that:
The
If
a use is not a fair use under either the guidelines or the statute, you still
have choices: you can change it so it is fair, if possible, use a public domain
alternative, or get permission.
The
article referred to earlier, "Fair Use
of Copyrighted Materials," contains links to all of the negotiated
guidelines that exist as well as our set of simpler guidelines based on the
negotiated guidelines, and very detailed information about how to get
permission.
Which of the following best describes fair use?
1. Fair
use permits certain uses of certain works for certain purposes, taking into
consideration the interests of the copyright owner.
2. It is
an all-purpose blanket exemption for educators.
Take a moment to review the UT System
Rules of Thumb for Electronic Reserves and Coursepacks. What can you
conclude about relying on fair use to provide supplemental reading materials to
students?
1. Fair
use is limited to small parts of another’s work.
2. For
text materials, fair use seems to have a time limit
3. Supplemental
materials should not substitute for sales of textbooks
Getting
permission.
Getting
permission is easy in theory; in practice it can be very hard. That is because
the law requires that you ask the “owner” of the copyright for permission
if a use does not fit within one of the law’s provisions that gives you special
privileges to use others’ works without permission, such as fair use. The
trouble is that it may not be obvious who the owner is, or the owner may not be
easy to track down even if you know who he is, or he may not respond, or he may
respond that you must pay him an absurdly high fee for a small educational use.
Thankfully, when you want to use materials that you find online, the owner
often includes an email address right on the page. This makes contact much
easier. Some owners even include statements on their pages about uses they
permit without your even having to ask. The Creative Commons licenses are a
good example of this practice. Any statement
explicitly permitting a range of uses is a very good idea.
If
you are not sure that a use is fair and you want to ask for permission to be on
the safe side, or you are quite sure that a use requires permission, here are
some basic rules to follow:
1.
If you
know who the author of the work is, you can contact him or her directly.
Keep in mind that most authors must assign their copyright to a publisher in
order to get their work published, so for published works, it is best to start
with the publisher. If you know who the publisher of a work is, you can contact
the publisher directly. A phone call, an email or a letter is an
acceptable way to contact a copyright owner.
2.
When
you ask for permission, describe what you want to do accurately. You
only get permission to do what you ask to do. Think ahead. Don’t ask for a very
narrow right if you are thinking about doing several things with a work. For
example, today you may be thinking of using someone else’s work in a multimedia
project that will be distributed exclusively on CD-ROM to a limited number of
people (the students in a class). But, if you think you may want to put the
same project online in the near future, it would be better to ask for permission
to do both right now.
3.
Save the letter or email that includes your
request and the answer you receive. If you got permission by phone, save
the notes you take to document what you asked for and what the copyright owner
gave you permission to do. Also, document failed attempts to get
permission as well. This evidence of what you tried to do may be important
later on if you decide to go ahead with a project even though you could not get
permissions you wanted. An inability to get permission does not mean you can’t
use the material – it just means that there is a certain amount of risk
associated with using it. It might be an acceptable risk, or you might want to
choose other materials.
4.
Take
advantage of copyright collectives such as the
5.
If you
have asked for permission even though you think a use may be fair use (“just to
be safe”), and the owner says, “no,” you still may rely on fair use to use the
work. That’s right. Even the Supreme Court has said that a copyright owner may
not eliminate your right to fair use by saying, “no.” This means that you don’t
have to worry that asking for permission to be on the safe side might result in
the loss of fair use. It does not work that way.
See
Getting
Permission
for more detailed information.
T/F Getting permission is so easy that you can obtain it
on a moment’s notice, so you don’t need to worry about it ahead of time.
Fair use in summary.
Fair
use provides an all-purpose limitation on the exclusive rights of the copyright
owner, allowing you to exercise the owner’s rights with due regard for the
preservation of the owner’s incentive. At the heart of the fair use statute is
the balance that makes copyright law work.
Performance rights.
Copyright law provides educators
with a separate set of rights in addition to fair use, to display (show) and
perform (play) others’ works in the classroom. These rights are in
Section 110 of the statute and apply to any work, regardless of the
medium.
Until
recently, when the classroom was remote, the law’s
generous terms for face-to-face teaching shrank dramatically – some
would say to the vanishing point!
These
severe limitations on what could be performed in distance education received
lots of attention. In 1998, Congress directed the Copyright Office to prepare a
report recommending what should be done to facilitate the use of digital
technologies in distance education.
The Copyright Office prepared its
report and recommended significant changes, and in March 2001, a bill was
introduced closely tracking the Copyright Office’s recommendations. It took almost 2 years,
but the TEACH Act finally became law in November 2002.
The TEACH Act expands the scope of
educators’ rights to perform and display works and to make the copies integral
to such performances and displays for digital distance education, making the
rights closer to those we have in face-to-face teaching. But there is still a
considerable gap between what the statute authorizes for face-to-face teaching
and for distance education. For example, as indicated above, under Section 110
(1), an educator may show or perform any work related to the curriculum,
regardless of the medium, face-to-face in the classroom – still images, music
of every kind, even movies. There are no limits and permission is not required.
Under 110(2), however, some of those materials will have to be pared down for
digital distribution. The audiovisual works and dramatic musical works may
only be shown as clips – “reasonable and limited portions,” the Act says.
This disparity, coupled with the
considerable number of additional
limits and conditions imposed by the statute, may lead some educators to
conclude that it’s more trouble than it’s worth to rely on § 110(2). This
statute’s complexity provides a new context within which to think about fair
use: compared to the myriad conditions and limits contained in § 110(2), the
four factor fair use test seems, well, simple and elegant. That’s a good thing,
because even to those who find 110(2) helpful, fair use will still figure
heavily in performance rights for distance educators, or any
educators who want to enhance their classroom teaching with online materials because
putting anything online requires making a copy of it. The TEACH Act
authorizes us to digitize works for use in digital distance education, but only
to the extent we are authorized to use those works in Section 110(2), and so
long as they are not available digitally in a format free from technological
protection. So, for example, where 110(2) authorizes the use of parts of a
movie and the available DVDs don’t permit ripping, you can digitize those parts
using an analog tape; but you are not authorized by the TEACH Act to digitize
the whole movie. On the other hand, we
are authorized to copy works that are already available in digital form for use
in accordance with the TEACH Act - Section 112(f) permits us to copy digital
works to a server and § 110(2) lets us perform the musical works by
transmissions to our students. The two sections together, § 112 and § 110,
permit us to make this reasonable use.
For digitizing, however, fair
use is almost always going
to be the best source of authority for making copies especially
in conjunction with statutes like 110(2) that give us specific authorization
that may not be sufficient in a particular case. Remember that the fair
use test is sensitive to harm to markets. This means that in general, where
there is an established market for permissions, there will often be a narrower
scope for fair use. In practical terms, this means that where it’s easy to get
permission, for example, for text materials to put on reserve, our reliance on
fair use should be moderate; on the other hand, where it’s near impossible to
get permission, for example, for music and movie materials where those
industries are not yet very responsive to the needs of distance educators, the
scope of fair use expands to permit reasonable uses of such materials for all
(local and remote) students.
Section 110’s role in the balance
of interests has always been to permit educators to share works with their
students, to show others’ works in class. In its exclusion of meaningful rights
for digital distance educators, Section 110 (2) was failing to carry its weight, so to speak.
It had been, in effect, “written out” of the statute by being permitted to
become outdated and obsolete. Now that it has been amended to permit educators
to show some materials they could not show before, but in a way that
significantly limits who may display and perform how much of what materials and
under which narrow circumstances, educators may wonder whether Congress will
achieve its stated goal of facilitating the use of digital technologies in
distance education with such a complicated statute. Thankfully we still have
recourse to fair use.
When people talk about fair use and the
TEACH Act, are they talking about the same thing?
1. Yes.
The words are interchangeable.
Based on the Copyright Act as amended
by the TEACH Act, could an institution digitize an entire movie so that faculty
may use short clips from it for in-class and remote teaching and studying?
1. No,
because § 110 only permits digitizing and using small clips.
2. No,
because fair use doesn’t permit copying a whole work under any circumstances.
3. Yes,
so long as we can’t acquire a digital copy of the movie free of copy
protection, we may rely on both § 110 and fair use, § 107, together to
digitize the movie and then use short clips.
Based on the Copyright Act as amended
by the TEACH Act, could an instructor rip all the tracks from 30 CDs to create
performance groupings for a distance ed class on music appreciation?
1. No,
because the CDs are available electronically free of technological protection,
so no copying of the tracks is permitted.
2. Yes,
because the instructor can make copies of digital works under 112(f) and he can
perform his compilation for his students under § 110(2) (and also as a fair
use).
If
a compilation CD much like the compilation the instructor wants to create is
available commercially, is it ok for him to create his own?
1. No,
he should have the students buy the commercially available compilation.
2. Yes,
because it is a lot cheaper for the students than buying their own compilation
CDs.
Liability for infringement.
Copyright
law’s liability provisions also support achievement of its purpose. By
providing strong penalties for infringement, the law encourages
compliance with its overall scheme of protection. But even here we see
evidence of the balance that makes copyright law work: there are important
defenses available to educators who make good faith judgments about fair
use and to universities functioning as Internet Service Providers (ISPs).
Copyright
law uses a strict liability rule: if you infringe, you are liable. It is
very simple actually. The mere exercise of any of the copyright owner’s
exclusive rights without permission, or without the action being authorized by
the statute (for example, as a fair use) is an infringement. Ignorance of
the law is no excuse. So individual faculty members, and even students,
will be liable for their infringements, with the person who infringes being
called a direct infringer.
The
penalties are stiff: $150,000.00 per act of willful infringement
and a range of between $750.00 and $30,000.00 per work infringed innocently.
Willful infringement means you knew it was wrong and you did it anyway, for
example, after you were warned to stop.
But
individual liability is just the first step in the liability chain. An
individual’s actions can cause others to be liable for his or her infringement.
There are three ways this can happen:
1. Agency liability: An
institution can be liable along with the individual where the direct
infringement is committed by an employee working within the scope of
employment, for the most part at work and during work hours, on projects
that serve the university’s interests.
2. Vicarious liability:
An institution can be liable when there is no employment relationship with the
direct infringer, but it has hired the infringer (in other words, the infringer
is a "contractor") and has the ability to control the
contractor and benefits from the contractor’s performance.
3. Contributory liability:
An institution can even be liable where there’s no agency relationship and no
contractor relationship with the direct infringer, but the university knows
what the infringer is doing and participates in the infringement in a
significant way.
There
are many examples of activities for which a university might be held liable
along with the direct infringer.
·
A
faculty member creates infringing class Web pages (agency liability)
·
Students
make directories filled with infringing music files publicly available over the
internet (contributory liability)
·
Professors
assign infringing activities to their students (contributory liability)
· A hired Web designer (contractor) designs infringing official pages (vicarious liability)
So,
Universities have a big stake in individuals’ responsible use of others’ works.
Universities may try to shift liability
to individuals. For example, they may
require that individual take responsibility for obtaining permission and have them
sign some sort of statement that they have done so. Courts have been unwilling to accept that kind
of arrangement as a matter of public policy. If individual employees infringe
while doing their jobs, the institution will be liable along with the individual.
Thus, providing resources to help individuals get needed permissions is the
best defense for the institution.
Any
University can lower its risk of liability tremendously if it provides more
support to faculty members to get permission. There should be a centralized
resource on each campus charged with this responsibility. Further, there needs
to be coordination between that office and the digital library. Today, many
materials a faculty member might wish to include in a course are already licensed
for institutional use, so there’s no need to get permission, but rarely do the
people planning a course and putting materials online, or the people charged
with getting permission, know what’s licensed and what isn’t. There is a big need
for improvement in this area.
A faculty member who infringes someone’s copyright while
creating an online course faces which of the following possible consequences?
1. Sole
liability for direct infringement
2. Liability
for direct infringement, but the university will be liable along with him/her
because it is the employer and the work of the faculty member is within the
scope of employment (agency liability)
3. None
of the above because he or she is just an employee doing a job and the
university will bear full responsibility.
T/F If the University library has licensed for
campus-wide use an article a faculty member wants his class to read, he does
not need permission to put it on electronic reserve, so long as the license
does not explicitly prohibit such reserve use.
Defenses: Fair use.
As
mentioned earlier, there are important defenses for which individuals and
institutions may qualify. You will recall that fair use is one of the
limitations that copyright law places on the copyright owner’s right to control
the use of his work. The law implements this limit by making fair use a
complete defense to any claim of infringement. It doesn’t matter whether
the right allegedly violated was the right to make copies, to make a derivative
work, to display, perform or distribute a work publicly. It doesn’t matter
whether the accusation is direct, vicarious or contributory infringement. It’s
not just for nonprofit educational uses. It also applies in commercial
contexts, although the scope is more limited there.
The good faith fair use defense.
Even
though you can be held individually liable for your infringements, if
you have a reasonable basis for believing that the action you have taken was a
fair use, you can take advantage of the “good faith fair use defense.”
This will allow any court hearing a case against you to toss out the damage
award (which can be up to $30,000 per act of infringement), even if the court
determines that your action was not a fair use. But what is a reasonable
basis for believing that a use of another’s work is a fair use? Certainly, following
established guidelines and school policies will provide the best basis for
claiming this defense. On the other hand, if you ignore polices and guidelines,
the ability to claim the defense will be significantly undermined.
Implied license.
Fair
use and the good faith fair use defense are not our only defenses, however.
Placing a work in the Web environment implies a certain range of reasonable
uses by the very nature of the Web. Implied licenses are rights that we
have to use others’ works in ways that a reasonable copyright owner
would expect.
For
example, we all have an implied license to make all the copies of a work on
the Web that are necessary to access it and read it in the normal way one
must. We also have an implied license to make print copies of the work for our
personal purposes, and even to send a copy to a friend or to a small group. The
nature of placement on the Web suggests that it would be unreasonable for a
person to put a document there and not expect people to do these kinds of
things.
Another
example might be providing students access to a digital test question bank
that a textbook publisher provides to a teacher along with the teacher’s
edition of the textbook. But let’s explore the scope of the implied license in
this example. It is probably reasonable to expect that a teacher would make the
test bank available to students in his class, but it is probably not
reasonable to expect that he would make it available to the whole world by
posting it unrestricted on the Web.
The
problem with implied rights is that we are never completely sure where the line
is drawn. We ask ourselves, "What is reasonable in light of all the
facts," keeping in mind that what’s reasonable may change as our use of
materials on the Web changes.
Internet Service Provider liability limitations.
Universities
have a special defense against vicarious and contributory liability
when
operating as ISPs. When a University is merely a conduit providing
connections, the University has no liability for what passes through
those connections. But for content on University servers, the
protection is much more limited. This is important: when it is we ourselves
who are putting materials online, administrative materials, electronic
reserves, assigned readings, online courses, etc. we are not "merely"
ISPs. We are content providers. With one narrow exception, these limitations
only apply to us when we are ISPs and NOT content providers. The exception is
for faculty and graduate student research materials unrelated to class work.
So, for the most part, this defense
only helps the University avoid liability for the infringements of students.
For example, these provisions protect us from liability for student use of
peer-to-peer file sharing services, so long as we follow the law’s complex procedures.
Summary of liability.
In
most cases, having a copyright policy, and having employees who know and
understand the law, is the best insurance we have against individual and
institutional liability. This will prevent many infringements by itself.
If
you or your institution is ever sued for copyright infringement, there are a
variety of defenses that may be available, in addition to specific defenses to
the claim that has been alleged against you. Since the most important defenses
involve having and following a policy, this is very important to your strategy
to avoid infringement risk!
T/F: Following our institutional
copyright policy is the best way to limit your liability for copyright
infringement.
T/F: The best way for an educational institution to limit
its liability for copyright infringement by faculty members is to provide a
centralized permissions resource for them.
Ownership and use of works created on our campuses.
The
complement to concerns about the use of others’ works is that set of issues
associated with the copyright works we create
and own. In fact, as owners ourselves, we should find it easier to appreciate
the two sides of copyright: the rights provided for owners and the rights
provided for users. The central theme of copyright is balance; you will
recognize here how the balance between our concerns as users of others’ works
and our concerns as owners of our own works mirrors the balance in the law
generally. The duality of our interests in copyright encourages our compliance
with the law’s provisions.
Ownership.
There is only one place to start if
you wish to understand ownership: The copyright act places initial ownership
of copyright works with their authors. That’s where the law
starts. It does not, however, end there.
Many circumstances can affect an author's ownership of a particular
work, such as:
Whether
more than one person or entity qualifies as an author;
Whether
the work made for hire doctrine applies, making an employer the author of the
creator's work;
Whether a
University policy affects ownership; or
Whether
any signed contracts affect ownership.
Joint ownership is not automatic. Merely contributing copyrightable
expression to a work to which others are contributors too is not enough to
cause the copyright in the work to be jointly owned. It takes a shared
intention on the part of all of the contributors of copyrightable
expression to be joint authors to effect joint authorship and joint
ownership of copyright. Relying on individuals' subjective states of mind at
some point in the past is not the best way to figure out, after the fact, who
owns a collaborative work. It is much better to make everyone’s expectations
explicit so that no one is surprised by who may claim or dispute a claim of
joint ownership based on his or her contributions.
T/F: A student who contributes copyrightable expression, such as programming, to a faculty member’s project will be a joint author with the faculty member if they both intend to be joint authors.
T/F: A senior faculty member who contributes ideas to a junior faculty member’s project will automatically qualify as a joint author under copyright law.
Under special circumstances, an
employer of a creator will be the author of a work, rather than the creator. Persons
who hire someone to create something for them will be the author and
owner of the creation if they have a signed contract
with the creator that identifies the work as work for hire and the work
actually fits within one of the nine statutory categories for contractual
works for hire. Employers will own the work of their employees
within the scope of employment. Work is considered within the scope of
employment if it is done mostly at work, during work hours, using the
employer’s facilities and equipment, and with at least a partial purpose of
serving the employer’s needs.
Many Universities seem still to
honor the tradition of permitting faculty members to own works that
might otherwise reasonably be characterized as within the scope of their
employment (books, lecture notes, scholarly articles). This tradition
appears to many to conflict directly with the plain language of the work
for hire statute. The cases in which this tradition has been explored
indicate that policy probably is a good way to resolve the ambiguity. For
example, an institution's policy can clarify what it considers work made for
hire by specifying within reason that certain works are within or outside
the scope of employment. Note, however, that because the work made for hire
statute requires a signed written agreement if the employer and employee want
the employee to own a work that the statute would say the employer should own,
it would be a good idea for University employment contracts to be signed by
both parties and to include a reference to the University's policies, if the
policy says that employees will own works that would logically be works for
hire.
A copyright policy may also
recommend or even require the use of contracts to further clarify or
vary ownership and control and to address many other issues that are important
in the distance learning context, such as rights to revise, commercialize and
create derivatives from a work. Our U.T. System Educational
Course Materials Agreements illustrate how contracts can help to implement
policy.
Which of the following would qualify as work for hire, making the
employer the author and owner of copyright in the work?
1. Photos
taken by a staff photographer
2. A
commissioned sculpture where there is no contract between the artist and the
university
3.
An online course created by a faculty
member with university funding, assuming there is no policy statement about
ownership of such materials.
Management.
University copyrighted works are
far too numerous and, increasingly, too complex, for a simple policy that
allocates all rights to either a faculty member or the University. Rarely is an
institution or a faculty member the sole author of educational materials
created on campus today. These works need a more nuanced treatment. Even where
one contributor may be the nominal owner, other contributors may need rights
such as a non-exclusive license to use, to revise, and perhaps to commercialize
the work and share in revenues from commercialization. Sometimes joint
ownership is appropriate. In those cases, the owners thoughtfully should
determine who is best able to manage the work. A policy that recognizes and
focuses upon the parties' interests in a
work, rather than just on who owns a work,
will better serve everyone's needs. This is perhaps one of the most important
aspects of a good policy – it can go beyond the “winner take all” approach of
the law and allocate rights according to reasonable needs.
T/F: Even if the university owns a work as work for hire, the institutional copyright policy can give the faculty creator the right to revise the work and to continue to use it if he leaves the university.
Recent changes and their effect on the balance.
Digital
technology is putting considerable stress on copyright law: at first
technology threatened the copyright owners with the ease with which their
works could be copied and distributed on the Internet. Lately, however,
the users’ rights are being threatened by the measures that copyright
owners have taken to protect their rights: the right to lend, fair use, even
the public domain seem to be under siege. For example, the
anti-circumvention provisions of the Copyright Act make it possible for
copyright owners to protect their works with technology that does not permit
any fair uses, adaptations for handicapped people, or copies
for library patrons, among other things, even though users have rights to
do those things under specific provisions in the Copyright Act. If a user tries
to get around the technology to make a fair use copy or an adaptation for a
handicapped person, he or she can be liable
for civil damages, court costs and attorneys fees for “circumventing” the technological
protection.
In
addition, with our incredibly long copyright terms and the fact that protection
is automatic for all works, even works the author cares nothing about
protecting, we may be seeing a real change in the public’s ability to derive
its benefit (increased knowledge) from the copyright bargain.
While
technology offers great opportunity, it also poses great threats: copyright
owners view technologies like peer-to-peer file sharing as an assault on their
incentives and have secured many changes in the law and are contemplating many
technological measures to counter that kind of threat. Unfortunately, these
steps are being taken at the expense of public access and use.
Remember
that copyright’s basic goal is to improve our society by encouraging the
development of knowledge. That goal cannot be achieved by having only a
set of rights for copyright owners, just as it could not be achieved by having only
a set of rights for users. Achievement of the purpose of copyright requires
balance. If owners’ rights become so strong that they eliminate or
significantly diminish the public domain, fair use, lending, and other users’
rights in the digital environment, there is real concern that achievement of
copyright’s purpose may be compromised.
Under which circumstances may one circumvent a technology that limits access to a work or that limits copying?
1. To make a use that clearly qualifies as a fair use under § 107.
2. To create an adapted copy of a work for a blind person as permitted by § 121.
3. To archive a work as permitted under Sections 108(b) and (c).
4. To make a copy for a library patron as permitted by Sections 108(d) and (e).
5. None of the above.
Summary.
We
have copyright law for one reason only: to encourage the growth of knowledge.
We achieve that goal by providing an economic incentive to authors to get them
to create; but we put limits on their power to control their works in order to
provide the public benefit the Constitution mandates. Neither the incentive
nor the limits on an owner's ability to control and exploit his work is
a problem to be gotten around: together they are the fundamental way the law
achieves its purpose.
As
an educator, your challenge against this backdrop is to learn about your rights
and responsibilities and to understand the purpose of this law and the
ultimate good it promotes. By using others’ works responsibly, you can teach
respect for the creative endeavors you are in fact undertaking yourself and
encouraging in your students. But just as importantly, you need to teach
respect for the rights of users of others’ works: fair use and other users’
rights are there for a reason: when exercised responsibly, in a way that
doesn’t undermine the incentive to authors, they too further the goals of
copyright. It’s all a matter of balance.
Additional
Information:
The Digital Dilemma by the
Committee on Intellectual Property Rights and the Emerging Information
Infrastructure.
Pew Symposia on Learning and Technology,
: Who Owns On-Line Courses and Course
Materials: Intellectual Property Policies for a new Learning Environment. http://www.center.rpi.edu/PewSym/mono2.html
The
intent of this information is to introduce readers to general concepts of
____________________________________________________________________
Four
Factor Fair Use Test Q&A: it will be advisable to engage in some discussion
about the fair use test before proceeding through the fair use
scenarios.
Scenario 1: History of
American Photography
A faculty member develops
a multimedia work on the history of American photography. She includes samples
both of famous, frequently published photographs, most of which come from her
slide archive, and of previously unpublished photographs she has collected that
she considers to be good examples of various techniques. The work also includes
her commentary, portions of relevant textbooks and articles by other scholars,
and recorded music from appropriate eras as background. She originally
developed the work for her class, but her department chair, interested in new
sources of revenue, wants to explore its market potential.
1. Which parts of the law might
potentially authorize her to digitize the slides and archival photographs in
her collection?
2. Does she need permission
from the article and textbook publishers to include their materials in the
multimedia work?
3. May she include music as
"background" without permission? Be sure to look at all her options,
not just fair use.
4. If she and her dean are
successful in finding a commercial market, will the publisher likely accept her
reliance on fair use or the TEACH Act?
Scenario 2:
An Online Homework Form
A teaching assistant is
preparing an online form to enable students to submit their answers to their
textbook's homework questions at the end of each chapter. She is using the
questions from the textbook verbatim, and incorporating the answers from the
teacher's answer book into the automatic responses to students who miss a
question. Each student is required to purchase the textbook.
1. Does the teaching assistant
need permission from the textbook publisher to implement her online homework
form?
2. What facts from the
description above and what additional precautions strengthen a fair use
argument?
Scenario 3:
Coursepacks and E-Reserves
A university librarian
noticed that a professor routinely brought materials to be placed on electronic
reserve that appeared to be from coursepacks from earlier classes. In checking
with the on-campus copy shop, she learned that they were mostly materials for
which the permission fees to make photocopies were prohibitively expensive.
When she asked him about this, he replied that if she did not want to put them
on electronic reserve in the library, he would put them on his Web site.
1. Can a coursepack be a fair
use?
2. Can electronic reserves be a
fair use?
3. Do our Rules of Thumb treat
them the same?
4. In evaluating whether a use
is fair, does it matter whether materials are on reserve in the library or on
an individual's Web site?
Scenario 1: Electronic
Journalism
A faculty member
establishes a web site for his class on electronic journalism and requires each student to
create a web page to be included in the site. One of the student pages
consists of a critique of various newspaper and magazine web sites. She
includes the logos of each publisher and illustrates her critiques with
extensive "screen shots" from the publishers' sites. The faculty
member also establishes a listserv for the class and uses it to circulate and
discuss copies of well-written articles that he finds on some of those same
sites, as well as on Clarinet and Nexis news services (databases licensed by
the University).
1. Who is responsible (who
might be liable) if these course-related materials infringe someone's rights?
2. What defenses might those
held liable assert?
3. Would it make a difference
if the faculty member and student linked to rather than made copies of the
materials at the publishers' sites?
4. What about using the
publishers' trademarks to improve the appearance of a page?
5. What defenses might apply if
the student page was a personal page rather than a class assignment?
6. Who owns the student page
and what defense may permit the faculty member to make some use of it after the
class is over?
Scenario 2:
It's Someone Else's Responsibility
A University library
requires faculty members to sign a form stating that any materials the faculty
member asks to place on reserve are fair use or, alternatively, that the
faculty member has gotten permission from the copyright owner if the use
exceeds fair use. The university does not provide any guidance on the scope of
fair use.
1. The library believes this
relieves it (and the University) of liability for any infringing reserve
materials requested by faculty members. Is this correct?
2. Who might be targets of a
lawsuit involving this activity?
3. What defenses could the
individuals claim?
4. What defenses could the
University claim?
Scenario 3: The RIAA Comes to
Campus
The General Counsel's
Office receives a warning from the Recording Industry Association of America
(RIAA) that it has identified hundreds of unauthorized recordings on servers
within the University network and that if the recordings (mp3 files) are not
removed or access to them blocked, the RIAA will take legal action. The warning
includes a list of files and their locations (urls). Most appear to be
student-owned servers in the dorm network, but one is a server in the music
department.
1. Who is responsible if these
files infringe someone's rights?
2. What defenses are available
to the University?
3. What defenses are available
to individuals who might be sued?
Scenario 1: Independent Work of the Professor
A Professor decides to develop
the traditional art history course she has taught for the past 15 years at
1. Who owns the copyright to
the Web-based content?
2. On what basis might Land
Grant University claim ownership?
3. How would your conclusion
change if the Professor was assigned by the head of the department to develop
an electronic version of the art history course?
4. Would it be significant if
the Professor developed the electronic version, at least in part, in her campus
office?
5. Who has the right to modify the content?
Scenario
2: Another Independent Work
Assume the same facts as
above, except that the Professor develops the Web-based content primarily on
campus, using content she developed over the years but employing the assistance
of
1. What arguments would Land
Grant University make in support of its claim of ownership?
2. What arguments would the
Professor make in support of her ownership assertion?
3. Is it significant that the
non-faculty employees of Land Grant University created copyrightable material
that was included in the electronic course?
4. Who owns the copyright to
that material?
5. Does your analysis or conclusion change when you consider that the facilities used and the employees involved are public?
Scenario 3: Commissioned Work
The head of the economics
department assigns a Professor to develop an interactive introductory economics
course for use by students of the Community College. The Professor is given a reduced teaching
load, a $3,000 stipend, a research assistant, and access to the College’s
graphic art department to assist in this project. A commercial publishing company is impressed
with the work and wants to either purchase it out right or license it. Both the
Professor and the Community College claim ownership of the work.
1. What arguments would the
Community College raise as a basis for its claim of ownership?
2. What arguments would the Professor raise in support of his claim of ownership of the work?
3. Who do you think has the better claim?
4. Can the competing interests
of the Professor and the Community College both be accommodated?
Two faculty members from
different universities decide to create an online course in educational
psychology. Each agrees to obtain release time for the development effort. One
obtains audiovisual and design services from his university, the other obtains
a $25,000 grant from her university to buy software and computer equipment and
to hire a graduate student (the "techie") to convert materials to
Web-format, write java-script, and create an effective interface. Both faculty
members contribute pre-existing materials of their own, but only one will write
transitions, edit the entire course for consistency, and fill in anything
that's missing.
After one semester where
each teaches the course at his or her university, one faculty member leaves her
university to teach at a new institution.
1. Can she take the course with
her?
2. Who may be joint authors of
the course?
3. Whose contribution might be
work for hire?
4. Suppose neither university has a policy regarding the ownership of online courses. How will this change the outcome of the analysis?