Hannah S. Ross, Esq. Princeton University 1 Libraries in the
Digital Age Copyright Issues Oct. 16, 2013
Slide 2
Copyright Protection Defined 2 WHAT? Copyright protection
subsistsin original works of authorship fixed in any tangible
medium of expression.... Copyright Act, 17 U.S.C.A. 102(a) WHEN?
Vests instantly (no or other notice required). HOW LONG? Lasts for
70 years after the life of the author/creator.
Slide 3
3 Four Factors: 1.The purpose and character of the use,
including whether such use is of a commercial nature or is for
nonprofit educational purposes; 2. The nature of the copyrighted
work; 3. The amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and 4. The effect of
the use upon the potential market for or value of the copyrighted
work. (17 U.S.C. 107) Fair Use
Slide 4
Factor No. 1: Purpose and Character of the Use 4
Slide 5
Journalistic 5 What Are Your Purposes? Historical Fundraising
Commercial Aesthetic
Slide 6
Factor No. 2: The Nature of the Work 6 CreativeFactual
Slide 7
Factor No. 3: Amount and Substantiality 7
Slide 8
Factor No. 4 The Market Effect 8
Slide 9
Fair Use Factors 9 Factors Favoring Fair Use Teaching
(including multiple copies for classroom use) Research Scholarship
Nonprofit Educational Institution Criticism Comment News Reporting
Transformative or Productive Use (Changes the work for new
utility)
Slide 10
Fair Use Factors 10 Factors Weighing Against Fair Use
Commercial Activity Profiting from the Use Entertainment Bad-faith
Behavior Denying Credit to Original Author
Slide 11
11 How Do You Know What Is Fair? The ultimate test of fair use
is whether the copyright laws goal of promoting the progress of
science and useful arts would be better served by allowing the use
than by preventing it. Castle Rock Entmt, Inc. v. Carol Publy Group
(2d Cir. 1998)
Slide 12
ARL Code of Best Practices in Fair Use for Academic and
Research Libraries 12 Office of the General Counsel Princeton
University
Slide 13
8 Principles: It is Fair Use to 13 Support teaching and
learning with access to course-related materials via digital
technologies Use materials from collections to publicize the
librarys holdings and create exhibits Digitize to preserve at-risk
items Digitize archival and special collections Reproduce materials
in accessible formats for disabled patrons (and retain for future
use) Maintain the integrity of works in an institutional repository
Create databases for non-consumptive research uses Collect material
posted on the WWW and make it available for scholarly use
Slide 14
Using Selections from Collection Materials to Publicize a
Librarys Activities, or to Create Physical and Virtual Exhibits
Principle Two It is fair use for a library to use appropriate
selections from collection materials to increase public awareness
and engagement with these collections to promote new scholarship
drawing on them. 14 Office of the General Counsel Princeton
University
Slide 15
Maintaining the Integrity of Works Deposited in Institutional
Repositories Principle Six It is fair use for a library to receive
material for its institutional repository, and make deposited works
publicly available in unredacted form, including items that contain
copyrighted material that is included on the basis of fair use. 15
Office of the General Counsel Princeton University
Slide 16
Creating Databases to Facilitate Non-Consumptive Research Uses
(Including Search) Principle Seven It is fair use for libraries to
develop and facilitate the development of digital databases of
collection items to enable nonconsumptive analysis across the
collection for both scholarly and reference purposes. 16 Office of
the General Counsel Princeton University
Slide 17
Collecting Material Posted on the World Wide Web and Making it
Available Principle Eight It is fair use to create topically based
collections of websites and other material from the Internet and to
make them available for scholarly use. 17 Office of the General
Counsel Princeton University
Slide 18
The Caveats: ARL recommends that you Always attribute the
source material. Give users information about appropriate usage.
There should be a nexus between the educational/research purpose
and the kind and amount of content. It should be appropriately
tailored. Have a simple objection tool. 18 Office of the General
Counsel Princeton University
Slide 19
Georgia State University Scores a Victory for Academic Fair Use
in Landmark Copyright Case Cambridge University Press, et al. v.
Mark Becker is a key, in- depth analysis of how copyright laws will
apply in the digital age in the context of higher education.
Cambridge University Press, et al. v. Mark Becker In a landmark
decision on the nature of copyright law in the digital age, the
federal judge ruled May 2012 in favor of officials at Georgia State
University on nearly all the copyright infringement claims lodged
by a trio of textbook publishers. For the vast majority of claims,
the judge concluded that the fair use doctrine protected the GSU
professors decision to allow students to access excerpts of
textbooks online through Georgia States Electronic Reserves System.
19 Office of the General Counsel Princeton University
Slide 20
Applying Fair Use 20 The application of the generally defined
factors is highly fact- sensitive and nuanced such that reasonable
minds can easily reach different conclusions as to what constitutes
a "fair use." Such uncertainty often has a chilling effect on
legitimate uses of protected material and thereby frustrates the
Constitutional purpose of the Copyright Act. To address this
concern, the Act offers additional statutory protections against
liability for non-profit educational institutions to the extent
their employees are making reasonable, good faith efforts to
proceed in a manner consistent with the requirements of the "fair
use" exemption.
Slide 21
Q&A 21 ~THANK YOU! Hannah S. Ross, Esq. University Counsel
Princeton University
