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Pat Aufderheide Center for Social Media American University
FAIR USE IN TEACHING & LIBRARIES:THE BEST PRACTICES MODEL
PREFACE• I am not a lawyer, and do not offer
legal advice in individual cases
• This is not about rules, but about reasoning; no shortcuts
• It’s not about Sec. 110, educational exemptions or Sec. 108, library exemptions
IT’S ABOUT…
• How related communities employ fair use;
• What you can borrow from them;
• And what librarians are doing to help you further.
IT COMES FROM...• The Fair Use Project
• Five years of work with Washington College of Law
• Funded by MacArthur, Rockefeller, and Ford Foundations
• Co-principal investigator: Prof. Peter Jaszi ([email protected])
THE PURPOSE OF
COPYRIGHT
ONE PURPOSE :
TO PROMOTE THE CREATION OF CULTURE
By:
• Rewarding creators with limited monopoly
• Encouraging new makers to use existing culture
WHY BALANCE?
• All culture created on existing culture (we used to know that)
• The First Amendment (no censorship)
BIGGEST BALANCING FEATURE:
FAIR USE legal, unauthorized use of
copyrighted material--under
some circumstances
FAIR USE legal, unauthorized use of
copyrighted material--under
some circumstances
HOW WE FORGOT
BALANCE:• Copyright term extension
• Default copyright
• Punishing penalties (statutory damages)
• Large content holders’ aggressive tactics
DECADES OF MISINFORMATION
• Guidelines end up as limiting rules
• Corporate mis-education of users
• Tyranny of self-appointed experts
GOOD NEWS…• Judges love
balancing features
• Supreme Court upholds term extension because fair use exists
• Fair use judicial interpretation has greatly shifted in last 15 years
INTERPRETING
FAIR USE
THE “FOUR FACTORS”
• Reason for the use
• Kind of work used
• Amount used
• Effect on the market
PLUS…
Custom and practice of individual creative communities…
...especially when well-documented
AND, IN THE LAST 15 YEARS…
• Transformation
• Amount related to transformative purpose
Judges focus on
JUDGES ASK:
• Did you transform the use?
• Did you use the appropriate amount to satisfy the transformative use?
FEAR…• Will I get it wrong?
• Will I get sued?
• Will my boss/general counsel client get angry?
BEST PRACTICES
EDUCATION
• Knowledge of the law
• Awareness of problem
• Articulation of consensus around fair use
COMMUNITIES INTERPRET FAIR USE:
• Documentary filmmakers
• Scholars
• Media literacy teachers
• Online video
• Dance collections
• OpenCourseWare
DOCUMENTARY
RESULTS:• TV programmers air films
• New kinds of films
• All insurers of errors and omissions insurance now accept fair use claims
• Lawyers use the Statement to build their practices
MEDIA LITERACY
TEACHERS
MEDIA LITERACY
CATEGORIES• Teaching with copyrighted material
• Using copyrighted material in curriculum materials
• Circulating curriculum materials with copyrighted material in them
• Student use of copyrighted materials in their work
• Circulating student work
ONLINE VIDEO
ONLINE VIDEO CODE
• Comment/critique
• Illustration/example
• Accidentally/incidentally
• Preserve/recall
• Discuss
• Collage
DANCE COLLECTIONS
PRESERVATION
Transferring holdings to new formats (fair use better than section 108)
EXHIBITION
Using holdings in public displays/exhibits
Capturing copyrighted material in recorded presentations (e.g. podcast of the event)
RESEARCH
For academic study, including “digital ILL” (better than section 110)
Allowing public access to digitized materials on a website
OPEN COURSEWARE
SITUATIONS
• Incidental use • Critique and
analysis• Illustration• Demonstration(sound familiar?)
AND WHAT ABOUT
E-RESERVES?Links are better than digital reproduction BUT...
non-text/hard-to-find material may justify fair use.
TEXACO DECISION (1992)
OK to reproduce copies of articles received from a corporate service for Texaco
employees?
NO, because…Not transformative.
TRANSFORMATIVE
FUNCTIONS?
• Assembling research for a project
• Online research-discussion site
• Others?
Coming Soon: Code of Best Practices in Fair Use for Research Libraries
Categories:• Scholarship
• Teaching
• Preservation
• Exhibition
• Disabilities
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!
Resources
• Our new book, Reclaiming Fair Use
• Center for Social Media web resources
•Codes
•Teaching tools
•Videos
12/17/09
FAIR USE:
Practice Makes Practice
Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.
Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.
THANK YOU!
Prof. Peter JasziMacArthur, Rockefeller, Mellon and Ford Foundations
CONTACT INFO
Pat Aufderheide Center for Social MediaSchool of Communication American University Washington, DC [email protected]
