Pat Aufderheide Pat Aufderheide Center for Social Center for Social Media Media American University American University

FAIRFAIR USEUSE IN IN TEACHINGTEACHING & & LIBRARIES:LIBRARIES:THETHE BESTBEST PRACTICESPRACTICES MODELMODEL

PREFACEPREFACE• Teachers, ibrarians and information Teachers, ibrarians and information

technologists face questions about technologists face questions about fair use of copyrighted material fair use of copyrighted material

• You have too many rules and dos and You have too many rules and dos and don’ts already; this presentation don’ts already; this presentation isn’t thatisn’t that

• It’s also not about educational It’s also not about educational exemptions or Sec. 108 (library exemptions or Sec. 108 (library exemptions)—which are mired in the exemptions)—which are mired in the past past

IT’S ABOUT…IT’S ABOUT…

• How related communities have How related communities have collectively empowered themselves collectively empowered themselves with best practices codes in fair with best practices codes in fair use;use;

• What you can borrow from them; What you can borrow from them;

• And how you might as well!And how you might as well!

IT COMES FROM...IT COMES FROM...• The Fair Use ProjectThe Fair Use Project

• Five years of work with Five years of work with Washington College of Law Washington College of Law

• Funded by MacArthur, Rockefeller, Funded by MacArthur, Rockefeller, and Ford Foundationsand Ford Foundations

• Co-principal investigator: Prof. Co-principal investigator: Prof. Peter Jaszi Peter Jaszi (pjaszi@wcl.american.edu) (pjaszi@wcl.american.edu)

OVERVIEWOVERVIEW• Copyright policy basicsCopyright policy basics

• Imbalance in copyright policyImbalance in copyright policy

• Interpreting fair useInterpreting fair use

• Best practices codesBest practices codes

Borrowing from existing codesBorrowing from existing codes

• You—a code of best practices?You—a code of best practices?

THETHE PURPOSEPURPOSE OFOF

COPYRIGHTCOPYRIGHT

ONE PURPOSE :ONE PURPOSE :

TOTO PROMOTEPROMOTE THE THE CREATION OF CULTURECREATION OF CULTURE

By:By:

• Rewarding creators with Rewarding creators with

limitedlimited monopolymonopoly

• Encouraging new makers Encouraging new makers to use existing cultureto use existing culture

WHY BALANCE? WHY BALANCE?

• All All cultureculture created on created on existing culture (we used to existing culture (we used to know that)know that)

• The First Amendment (no The First Amendment (no censorship)censorship)

BIGGEST BALANCING BIGGEST BALANCING FEATURE:FEATURE:

FAIR USE FAIR USE legal, unauthorized use of legal, unauthorized use of

copyrighted material--copyrighted material--under under

some circumstancessome circumstances

FAIR USE FAIR USE legal, unauthorized use of legal, unauthorized use of

copyrighted material--copyrighted material--under under

some circumstancessome circumstances

THE RISE OFTHE RISE OF

TIGHTTIGHT COPYRIGHTCOPYRIGHT

HOW WE FORGOT HOW WE FORGOT

BALANCE:BALANCE:• Copyright term Copyright term extensionextension

• Default copyrightDefault copyright

• Punishing penalties Punishing penalties (statutory damages) (statutory damages)

• Large content holders’ Large content holders’ aggressive tacticsaggressive tactics

DECADESDECADES OF OF MISINFORMATIONMISINFORMATION

• Guidelines end up as Guidelines end up as limiting ruleslimiting rules

• Corporate mis-Corporate mis-education of userseducation of users

• Tyranny of self-Tyranny of self-appointed experts appointed experts

TheThe EscapeEscape Hatch!Hatch!

FAIR USE:FAIR USE:

GOOD NEWS…GOOD NEWS…• Judges love Judges love

balancing featuresbalancing features

• Supreme Court Supreme Court upholds term upholds term extension because extension because fair use existsfair use exists

• Fair use judicial Fair use judicial interpretation has interpretation has greatly shifted in greatly shifted in last 15 yearslast 15 years

INTERPRETINGINTERPRETING

FAIR USE FAIR USE

THE “FOUR FACTORS”THE “FOUR FACTORS”

• Reason for the use Reason for the use

• Kind of work used Kind of work used

• Amount used Amount used

• Effect on the Effect on the market market

PLUS…PLUS…

Custom and practice of Custom and practice of individual creative individual creative communities…communities…

...especially when ...especially when well-documentedwell-documented

AND, IN THE AND, IN THE LAST 15 YEARS…LAST 15 YEARS…

• Transformation Transformation

• Amount related Amount related to to transformative transformative purposepurpose

Judges Judges focusfocus on on

JUDGES ASK:JUDGES ASK:

• Did you transform the Did you transform the use? use?

• Did you use the Did you use the appropriate amount to appropriate amount to satisfy the satisfy the transformative use?transformative use?

FEARFEAR…• Will I get it wrong?Will I get it wrong?

• Will I get sued? Will I get sued?

• Will my boss/general Will my boss/general counsel client get counsel client get angry? angry?

BEST PRACTICES BEST PRACTICES

EDUCATIONEDUCATION

• Knowledge of the law Knowledge of the law

• Awareness of problem Awareness of problem

• Articulation of Articulation of consensus consensus around fair use around fair use

COMMUNITIES INTERPRET FAIR USE:

• Documentary filmmakers

• Scholars

• Media literacy teachers

• Online video

• Dance collections

• OpenCourseWare

STORIES UNTOLD: STORIES UNTOLD:

Creative Creative consequences consequences

of the rights of the rights clearance clearance

culture for culture for documentary documentary filmmakers filmmakers

DOCUMENTARY

RESULTS:RESULTS:• TV programmers air filmsTV programmers air films

• New kinds of filmsNew kinds of films

• All insurers of errors and All insurers of errors and omissions insurance now omissions insurance now accept fair use claimsaccept fair use claims

• Lawyers use the Statement to Lawyers use the Statement to build their practicesbuild their practices

FILM SCHOLARS

MEDIAMEDIA LITERACY LITERACY

TEACHERSTEACHERS

MEDIA LITERACY MEDIA LITERACY

CATEGORIESCATEGORIES• Teaching with copyrighted materialTeaching with copyrighted material

• Using copyrighted material in Using copyrighted material in curriculum materialscurriculum materials

• Circulating curriculum materials Circulating curriculum materials with copyrighted material in themwith copyrighted material in them

• Student use of copyrighted materials Student use of copyrighted materials in their workin their work

• Circulating student work Circulating student work

ONLINE VIDEOONLINE VIDEO

ONLINE VIDEO CODEONLINE VIDEO CODE

• Comment/critiqueComment/critique

• Illustration/exampleIllustration/example

• Accidentally/Accidentally/incidentallyincidentally

• Preserve/recallPreserve/recall

• DiscussDiscuss

• CollageCollage

DANCE COLLECTIONSDANCE COLLECTIONS

PRESERVATIONPRESERVATION

Transferring holdings to Transferring holdings to new formats (fair use new formats (fair use better than section 108)better than section 108)

EXHIBITIONEXHIBITION

Using holdings in Using holdings in public public displays/exhibits displays/exhibits

Capturing copyrighted Capturing copyrighted material in recorded material in recorded presentations (e.g. presentations (e.g. podcast of the event)podcast of the event)

RESEARCHRESEARCH

For academic study, For academic study, including “digital ILL” including “digital ILL” (better than section (better than section 110)110)

Allowing public access Allowing public access to digitized materials to digitized materials on a website on a website

OPEN COURSEWAREOPEN COURSEWARE

SITUATIONSSITUATIONS

• Incidental use Incidental use • Critique and Critique and

analysisanalysis• IllustrationIllustration• DemonstrationDemonstration(sound familiar?)(sound familiar?)

AND WHAT ABOUT AND WHAT ABOUT

E-RESERVES?E-RESERVES?Links are better than digital reproduction BUT...

non-text/hard-to-find material may justify fair use.

TEXACO DECISION (1992)TEXACO DECISION (1992)

OK to reproduce copies OK to reproduce copies of articles received of articles received from a corporate from a corporate service for Texaco service for Texaco

employees? employees?

NO, because…NO, because…NotNot transformative. transformative.

TRANSFORMATIVE

FUNCTIONS?

• Assembling Assembling research for a research for a projectproject

• Online research-Online research-discussion sitediscussion site

• Others?Others?

TAKING ACTIONTAKING ACTION

USINGUSING OTHER OTHER PEOPLE'SPEOPLE'S CODESCODES

• Media literacy

• Dance Collections

• OpenCourseWare

MAKINGMAKING YOUR OWNYOUR OWN

• Document the problem Document the problem

• Define the Define the opportunityopportunity

• Research the reality Research the reality

AVOID PRE-EMPTION

• Many contracts with providers pre-empt fair use

— — Scope of use

— — Exclusion of fair use

• Often, contracts can be tailored

• Read the fine print!

FAIR USE:FAIR USE:

Practice Practice Makes Makes PracticePractice

Please feel free to share Please feel free to share thisthispresentationpresentation inin itsits entirety.entirety.For excerpting, kindly For excerpting, kindly employemploythethe principlesprinciples ofof fairfair use.use.

Please feel free to share Please feel free to share thisthispresentationpresentation inin itsits entirety.entirety.For excerpting, kindly For excerpting, kindly employemploythethe principlesprinciples ofof fairfair use.use.

THANK YOU!THANK YOU!

Prof. Peter JasziProf. Peter JasziEducauseEducauseMacArthur, MacArthur, Rockefeller, and Ford Rockefeller, and Ford Foundations Foundations Matthew GordonMatthew Gordon

CONTACT INFOCONTACT INFO

Pat Aufderheide Pat Aufderheide Center for Social MediaCenter for Social MediaSchool of Communication School of Communication American University American University Washington, DC Washington, DC paufder@american.edupaufder@american.edu202-885-2069202-885-2069