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Copyright Law and Visual Resource Policy
Georgia HarperUniversity of Texas System
Overview: Fair Use of Visual Resources
Purpose of CopyrightImproving society by supporting the growth of knowledgeBalancing interests
Owners’ rights; users’ rights
Fair Use of Visual ResourcesThe TEACH Act and Use of Visual Resources
Copyright Basics
What Does Copyright Protect?When Does it Begin and End?What Does it Mean to Owners?
Understanding Ownership
What Does it Mean to Users?What is Fair Use?What are Performance Rights?
Who’s Liable for Infringement?
What Does Copyright Protect?
Original Expression - A Person’s Unique Way of Saying SomethingFixed in a Tangible MediumOnly Requires Minimum CreativityDoes Not Protect FactsDoes Not Protect Ideas, Systems, Processes
When Does it Begin and End?
Today: Protection Starts at the Moment of Fixation in a Tangible MediumIt’s AutomaticNotice is Not RequiredRegistration Carries Certain Benefits but is only Required to Bring a Lawsuit
When Does It Begin and End? Terms of Protection
Works Published Before 1978Publication + 95 years or 28 years if published before 1964 and not renewed
Works Created During/After 1978Life of author + 70Works for hire: Publication + 95/creation + 120
Works Unpublished Before 1978Life of author + 70 or 2003, whichever is longer
Exclusive Rights ofthe Copyright Owner
Make CopiesCreate Derivative WorksDistribute, Display and Perform Works PubliclyArtists’ Moral Rights
Integrity/attribution
Controlling Copies: Not the Only Way
Exemptions for Higher Education
Fair Use (17 USC 107)Library’s Special Privileges (108)First Sale Doctrine (109)Educational Performances/Displays (110)Modifications for Blind and Disabled (121)
Role of Fair Use
Fair Use Embodies a Balance of Interests
Between owner control and public accessBetween owner control and public’s First Amendment rights
Fair Use Addresses Market FailuresFacilitates good, but uneconomic uses
Fair Use Statute
17 USC 107Uses Such As…Four Factor Fair Use Test
Character of the useNature of the material usedAmount and importance of part usedEffect on market for permission/original
Character of the Use
Favoring Fair UseOne of the listed usesNonprofit educationalRestricted accessTransformativeParody
Favoring Permission
Commercial use (profit)EntertainmentBad-faith
Nature of Material Used
Favoring Fair UsePublishedFactualNonfiction
Favoring Permission
UnpublishedHighly creative workFiction
Amount Used
Favoring Fair UseSmall amountsNot the heart of the workAppropriate in light of purpose
Favoring Permission
Large amountsHeart of the work
Effect on Market
Favoring Fair UseOwning a copyFew copies madeFirst 3 factors favor fair useNo ready market for permissionOut of printOwner unidentifiable
Favoring Permission
Takes away salesEasy licensing mechanismMany copies madeWide distribution of copiesRepeated useFirst 3 factors favor permission
Guidelines
ContextualCoursepacks; reserves; distance learning; image archives; multimedia; off-air taping, etc.
Not the Limit of Fair UseConvenient, but More Limited than StatuteUse Both Statutory Test and GuidelinesIf a Use is Not Fair, Pare it Down, Substitute, or Get Permission
Image Archive Guidelines
Determine digital availabilityIf available at reasonable price, acquireIf not available, digitize
Limit accessStudents registered for classTerminate access at end of semester
Revisit availability periodically
TEACH Act Overview
Right to display and perform works in the classroom during a lecture
Brick-and-mortar classroomsVirtual classrooms
Very specific, limited and conditioned
In the Classroom – 110(1)
Brick-and-mortar classroomsNonprofit educational institutionsDisplays or performances of any work in any medium
AudiovisualsLegal copy
For Distant Students 110(2)
Accredited nonprofits & governmentSmaller partsTechnological limitsInstitutional requirementsExclusions for supplemental materialsETC. ETC. ETC. ETC. ETC.Why the different standard?
Performance Rights and Fair Use
TEACH Act Permits Some CopyingFair Use is Best Source of Authority for Reproduction Beyond Section 110
Be sensitive to the availability of effective markets for permission and licenses to use digital materials
An Online Images Project
Digitizing a CollectionSharing it with others
Variety of Sources Copystand DonatedPurchased
Status of Copyright Protection Varies
Divide and Conquer
Not All Slides are ProtectedBridgeman v. Corel
Slides Created by FacultyThe implied license to use
Copystand PhotographyPurchased/licensed Slides
Legal Analysis
Implied LicensesFair Use: Fourth Factor
Where there is an effective, functioning permissions market or market for digital slides, use itWhere there is no functional market, digitize the slides and use in accordance with standard fair use restrictions
VRA Copy Photography Computator
Special Circumstances
Someone Says “No”Sharing Your Archive with Other Institutions
Additional Requests
Student Use of Digital Images for Class AssignmentsFaculty Use of Images for Professional PresentationsPersonal Use by Faculty and Students
The TEACH Act
Theoretically Covers Use of Images in Virtual Classrooms
Twenty-two prerequisitesAmong them: no recipient copying
No digitizing where a digital alternative useful for online instruction is available
Risk Reduction: Permission
Centralized Support for Obtaining PermissionCoordination between Faculty Members, Permission Facility and Digital Library
Licensed works do not require permission
For More Information
The Copyright Crash Course www.utsystem.edu/ogc/
intellectualproperty/cprtindx.htmOnline Tutorial www.lib.utsystem.edu/copyright
Summary
Copyright’s Purpose is to Improve Society by Advancing Knowledge
The law achieves its purpose by balancing interestsOwner’s rights and users rights are both vital to achieving the law’s purpose
Overview: Evaluating Policies and Guidelines
Why Bother with Policy?VRA Guidelines: The Gold Standard
Understand them completelyBe able to explain why they are a correct interpretation of the law
Use them to evaluate others’ policies
Confu or Other GuidelinesModifying Existing Policy
Why Bother?
Strict Liability StandardPenalties
$150,000 per willful infringement$750 to $30,000 per innocent infringement
The Good Faith Fair Use Defense
17 USC 504(c)Permits Court to Remit Damages
Infringer believed and had reasonable basis for believing that use was fair
Following Institutional Policy is Excellent Protection
Vicarious Liability
Agency: EmployeesWithin general scope of authoritySubstantially within time/spaceServes University interests
Vicarious: Independent ContractorsBenefit and control
Contributory: StudentsKnowledge and participation
Institutional Defenses
Policy Implements Educational StrategyOrganizational Support for Permissioning Archive Further Limits Liability
VRA Guidelines
Defining Fair Use of Images for Educational Purposes
Address the issues in a straightforward, unambiguous wayDo not address logistics; can be modified to add particulars
Other Guidelines
Confu GuidelinesUT System Rules of Thumb
Modifying an Existing Policy
If You Can’t Start FreshUnderstanding what your current policy does and how it does itAvoiding creating ambiguity and contradiction
Know what must be eliminatedKnow what you have to add to accomplish your objective
Evaluating Sample Policies
University of PennsylvaniaUniversity of WashingtonUniversity of Texas SystemArizona State UniversityUniversity of Virginia
Overview: Drafting Policy & Guidelines
Adopting the VRA Guidelines
Typical Modifications
Adopting the Confu GuidelinesTypical Modifications
UT System Rules of Thumb
Modifying an Existing Policy
Overview : Making Something Happen Back Home
Whose Support Do You Need?Who has Authority to “Bless” Your Policy?
If it’s you, post it!If it’s not you, begin the approval process
Mustering Support – Building Consensus
Be Able to Articulate a Rationale for your Policy FrameworkWho Will Be AffectedWho Represents Administration Interests
Identifying Who Must Approve Your Draft
Examine Rules and Procedures for Information about the Approval ProcessInquire Among Department Heads, College Deans and Sympathetic Administrators
The Approval Process
If You Must Hand-off ApprovalExplain your position carefully and fullyFollow-up frequently about progress
Questions?
Time For Your QuestionsAbout approvalOn subjects from our earlier sessions