Without certainty, how does fair use help? (weekly widget) January 4, 2008
Posted by Kevin Smith in : Copyright Information Notes , add a commentCongress recognized that fair use is hard to apply, since one is only certain that a use was fair after a judge decides that it was. So Congress added a provision to encourage teachers and librarians to use fair use where it reasonably can apply. Section 504(c)(2) of the copyright law, part of the section about remedies for infringement, says that “statutory damages,” which are the largest liability in most infringement cases, must be remitted to $0 if the person found to be infringing is BOTH an employee of a non-profit educational institution acting within the scope of his or her employment AND had a good faith belief that the use they made of the copyrighted material was fair use.
This provision greatly reduces the risk when academics think about fair use, since it eliminates most of the money that can be awarded if it is found that the user was mistaken in their fair use analysis. But it is important to note that the belief that a use is fair must be in good faith, which means it has to be both subjectively honest (I really did believe it was fair use) and objectively reasonable (a reasonable person could have come to the same conclusion). In those circumstances, Congress has created an incentive (by reducing what one has to lose) to make reasonable fair uses of protected material. If after carefully considering the fair use factors (this checklist can help), one reasonably believes the use is fair, it is often possible that the educational value of going forward will outweigh this reduced risk of getting it wrong.
How does Fair Use work? (weekly widget) December 28, 2007
Posted by Kevin Smith in : Copyright Information Notes , 2commentsFair Use is the only exception to the copyright law that applies to all of the rights in the copyright “bundle” — reproduction, distribution, public display, public performance and derivative works. If it applies, fair use can allow otherwise unauthorized uses that involve any or all of these rights. The problem is that it is very hard to predict when fair use will apply.
Fair use was an exception to copyright created by judges in order to maintain an equitable balance between copyright holders rights and the legitimate needs of users. It was incorporated into the new copyright law in 1976 with no intention to change the flexible, factor-based analysis that judges had been using all along. So instead of a set of requirements that have to be met for all the other exceptions to apply, fair use has a set of four non-exclusive factors that judges are to balance. It is not a checklist nor a mathematical equation, but rather considerations to be balanced in order to help judges decide what is fair.
The four fair use factors listed in section 107 are 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market for or value of the original. In addition to these factors, section 107 lists some illustrative examples of activities that might be fair use — “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.”
Because it is “an equitable rule of reason” applied by judges, and therefore quite uncertain, some people are afraid to apply fair use. Nevertheless, it is an essential tool for higher education and the only copyright exception that is flexible enough to accommodate new uses and new technologies. It is very important, for this reason, that academics continue to consider the four factors and make good faith decisions about fair use whenever appropriate.
What are the specific teaching exceptions? (weekly widget) December 20, 2007
Posted by Kevin Smith in : Copyright Information Notes , add a commentTwo exceptions, found in section 110(1) & (2) of the Copyright Act, apply specifically to teaching activities. These are both exceptions to one of the exclusive rights held by a copyright owner, the right to authorize public performances of the copyrighted work. Public performances happen all the time in teaching, whenever a poem is read, a play staged or a film screened for students. All of these performances would be considered public, even when confined to a small class of students, under the broad definition in the copyright act. So a specific exception to the public performance right is included as section 110(1), which allows public performances without permission as part of face-to-face teaching activities of a non-profit educational institution, in a classroom “or similar place devoted to instruction.” The only further requirement to benefit from this exception is that the copy of a film or other audio-visual work that is performed must be legally made. Copies that are purchased from a reputable vendor or borrowed from a library, a friend or a video-rental service are all lawfully made.
The other teaching exception in 110 is the TEACH Act, which greatly expanded the opportunity in subsection (2) for performances via distance education. Unlike subsection (1), the TEACH Act is full of specific requirements to enjoy its benefit. Some of these requirements are rather difficult for many institutions to fulfill; the best summary of how to interpret and use the TEACH Act is found in this TEACH Act toolkit from North Carolina State University.
Because these exceptions are so specific and, in the case of the TEACH Act, so difficult to use, many educational activities have to rely on fair use — the broadest exception in US law to the rights of a copyright holder — if they are to proceed without seeking permission.
What are the exceptions to copyright? (weekly widget) December 14, 2007
Posted by Kevin Smith in : Copyright Information Notes , add a commentThere are a large number of exceptions to the exclusive rights given to copyright owners. In fact, over 1/3 of the text of the Copyright Act — sections 107 through 122 — are limitations and exceptions to those exclusive rights. All of these sections explain situations in which it is not necessary to obtain authorization from the copyright owner for a given use, even though that use would otherwise infringe one of the exclusive rights. Many of these exceptions deal with very narrow and technical matters, like the rebroadcast of television programs over cable or the reproduction of certain materials for use by the visually impaired. Most of the sections provide for exceptions to specific rights in the copyright “bundle.” Section 110, for example, lists several exceptions to the right to authorize public performances or displays, but it does not refer in any way to the other rights like reproduction or distribution. Only fair use, found in section 107, is an exception to all of the rights held by a copyright owner; when fair use applies, reproduction, distribution, performance, display and the making of derivative works may all be done without authorization.
For purposes of teaching and research, fair use and the first two provisions of section 110 are by far the most important copyright exceptions, and we shall discuss these three provisions in upcoming widgets.
Who owns a paper written by three professors? (weekly widget) December 6, 2007
Posted by Kevin Smith in : Copyright Information Notes , 1 comment so farWhen there are joint authors of a work, each is a co-owner of the copyright in that work. This means that each author has the right to authorize publication of the work, use of it by a third party or the making of derivative works. It is very important, therefore, that joint authors agree in advance on how and when they wish to publish a work; conflicts develop when a single joint author authorizes a use of which the others do not approve, although such authorization is legal. Each joint author is responsible to account to the others for any profits received for the work.
Authors become joint authors when two or more each contribute protectable expression to a work with the intention that their contributions be combined into a unitary whole. Since intention is required, it is not possible to become a joint author accidentally. Contribution to a volume of essays or other collected work does not create joint authorship. Joint authorship is independent of academic rank or any other subordinate relationship (except that of employer/employee) ; a tenured professor, an adjunct instructor and a graduate student would all have equal rights in any work of which they were all joint authors.
