Don’t make it into a spreadsheet when creating model licences. Think creatively. Check lists, ERM records, HTML pages, etc. Does it need to be shared? Will you be copying from it to send to licencors for negotiation? Also, find out if there is standard language for IT that your institution uses. Review model licenses from the field.
Things are changing, though, and we’re licensing new things that we don’t yet know how to handle them. Data, images, streaming collections, etc. When exceptions become the rule, what do we do?
If you have all of this figured out, put it out there in a discoverable way so the rest of us don’t spin our wheels reinventing your brilliance. Community! Communication! Collaboration!
Do we need to have new standard licensing language for….? Autorenewal — replace it with language about mutual written agreement. Alumni might have access three months post graduation because of the way IT is set up, which might be a license violation. New vendors might not be familiar with libraries and who our authorized users might be. New uses/rights: repository, text mining, use on website/promotional materials, rip & stream on secure server, cloud hosting/distribution of CD-ROMs.
Where do we go from here? How do we as a community keep our resources up to date? Should we have more of a shared collection of exceptions? What can we do to help each other?
It used to be that libraries didn’t have to care about copyright because most of our practices were approved of by copyright law. However, what we do has changed (we are not in the age of the photocopier), but the law hasn’t progressed with it.
Getting sued is a new experience for libraries. Copyright law is developed through the court system, because the lawmakers can’t keep up with the changes in technology. This is a discovery process, because we find out more about how the law will be applied in these situations.
Three suits — Georgia State e-reserves, UCLA streamed digital video, and Hathi Trust & 5 partners for distributing digital scans and plans for orphaned works. In all three cases, the same defense is being used — fair use. In the Hathi Trust case, the author’s guild has asked the judge to not allow libraries to apply fair use to what they do because the copyright law covers specific things that libraries can do, even though it explicitly says it doesn’t negate fair use as well.
Whenever we talk about copyright, we are thinking about risk. Libraries and universities deal with risk all the time. Always evaluate the risk of allowing an activity against the risk of not doing it. Fair use is no different.
Without taking risks, we also abdicate rewards. What can we gain by embracing fair use? Take a look at the ARL Code of Best Practices in Fair Use for Academic & Research Libraries (which is applicable outside of the academic library context). The principles and limitations of fair use is more of a guide than a set of rules, and the best practices help understand practical applications of those guidelines.
From the audience: No library wants to be the one that wrecked fair use for everybody. Taking this risk is not the same as more localized risk-taking, as this could lead to a precedent-setting legal case.
These cases are not necessarily binding, they are a data point, and particularly so at the trial court level. However, the damages can be huge, and much more than many other legal risks we take. Luckily, in these cases, you are only liable for the actual damages, which are usually quite small.
The key question for fair use has been, “is the use transformative?” This is not what the law asks, but it came about because of an influential law review article by a judge who said this is the question he asked himself when evaluating copyright cases. The other consideration is whether the works are competitive in the market, but transformative trumps this.
When is a work derivative and when is it transformative? Derivative works are under the auspices of the copyright holder, but transformative works are considered fair use.
In the “Pretty Women” case, the judges said that multiple copies for educational purposes is a classic example of fair use. This is what the Georgia State judge cited in her ruling, even though she did not think that the e-reserves were transformative.
Best practices are not the same as negotiated guidelines. These are a broad consensus on how librarians can think about fair use in practice in an educational setting. Using the code of best practices is not a guaranteed that you will not get sued. It’s a template for thinking about particular activities.
In the Hathi Trust case, the National Federation for the Blind has asked to be added as a defendant because they see the services for their constituents being challenged if libraries cannot apply fair use to their activities that bring content to users in the format they need. In this case the benefit is great and the risk is small. Few will bring a lawsuit because the library has made copies so that the blind can use a text-to-speech program. Which lawsuit would you rather defend — for providing access or because you haven’t provided access?
Fair use can facilitate text-mining that is for research purposes, not commercial. For example, looking at how concepts are addressed/discussed across a large body of work and time. Fair use is more efficient in this kind of transformative activity.
What about incorporating previously published content in new content that will be deposited into an institutional repository? Fair use allows adaptation, particularly as technologies change. This is the heart of transformative use — quoting someone else’s work — and should be no different from using a graph or chart. However, you are using the entirety of the work, and should consider if the amount used is appropriate (not excessive) for the new work.
What about incorporating music into video projects? If the music or the video is a fundamental part of the argument and help tell the story, then it’s fair use. If you don’t need that particular song, or it’s just a pretty soundtrack, then go find something that is licensed for you to use (Creative Commons).
One area to be concerned with, though, is the fair use of distributing content for educational purposes. Course packs created by commercial entities is not fair use. Electronic course readings have not been judged in the same way because the people making the electronic copies were educators in a non-commercial setting. Markets matter — not having a market for these kinds of things helped in the GSU case.
The licensing market for streaming digital is more “hit or miss,” and education has a long precedent for using excerpts. It’s uncertain if an entirety of a work would be considered fair use or not.
Orphan works is a classic market failure, and has the best chance of being supported by fair use.
Stop giving up copyright in scholarly works.
Help universities develop new promotion & tenure policies.
Use Creative Commons licenses.
Publish in open access venues or retain rights and self-archive.
The purpose of copyright is to promote the creation of culture. It is not to ensure that authors get a steady stream of income no matter what, or to pay them back for the hard work they do, or to show our respect for the value they add to society. It’s about getting the stuff into the culture, and giving the creators enough incentive to do it.
One way it does it is to give creators exclusive rights for a limited period of time. The limit encourages new makers to use and remix existing culture.
Fair use is the biggest balancing feature of copyright. It ensures that the rights provided to the creators don’t become oppressive to the users. Fair use is the legal, unauthorized use of copyrighted material… under some circumstances. And we’ve spent generations trying to figure out which circumstances apply.
Fair use is a space for creativity. It gives you the leeway to take the culture around you and incorporate it into your work. It allows you to quote other scholarship in your research. It allows you to incorporate art into new works.
There are four factors of fair use. Every judge should consider the reason for the use, the kind of work used, the amount used, and the effect on the market. But it doesn’t tell the judges how much to consider or which is more important. The good news is that judges love balancing features, and the Supreme Court has determined that fair use protects free speech. However, since copyright is automatically conferred as soon as the creation is fixed, the fair use judicial interpretations have shifted greatly since 1990 to be more in the balance of the users in certain circumstances.
Without fair use, copyright would be in conflict with the 1st Amendment.
Judges want to know if the use is transformative (i.e. for a new purpose, context, audience, insight) and if you used the right amount in that transformative process. For example, parody is making fun of the original work, not just reusing it. An appropriate amount can refer to both the quantity of the original in the transformative work, and also the audience who received your transformative work. For example, the many photographic memes that take pictures and alter them to fit a theme, like One Tiny Hand.
Judges care about you and what you think is fair. There is a pattern of judges deferring to the well-articulated norms of a practice community.
Best practices codes are a logical outgrowth of the things the communities have articulated as their values and the things they would consider to be legitimate transformative works. Documentary filmmakers, scholars, media literacy teachers, online video, dance collections, open course ware, poets… many groups are creating best practices for fair use.
The documentary filmmakers have had a code of best practice for a long time. They realized that without it, they were limiting themselves too much in what they could create. Once they codified their values, more broadcast sources were willing to take films and new kinds of films were being made. Insurers of errors and omissions insurance were able to accept fair use claims, and lawyers use the Statement to build their own best practices in the relevant areas.
Keep in mind, though, that these are best practices and not guidelines. Principles, not rules. Limitations, not bans. Reasoning, not rote. The numerical limits we once followed are not the law, and we need to keep them fresh to be relevant.
Licensing is a different thing all together. This means you may have less rights in some instances, and more rights in others, regardless of fair use.
For libraries, fair use enables our mission to serve knowledge past, present, and future. We have a duty to make copyrighted works real and accessible in the way people use things now. What will libraries be in the future? How will we stay relevant? We need to have some flexibility with the stuff we have in our collections.
Many librarians are discouraged. Insecurity and hesitation equal staff costs to hire someone to clear copyright questions. Fair use would help, but it’s underused. Risk aversion subsumes fair use analysis.
The ARL document took a lot of people from diverse institutions and many hours of discussion to create it, and it was reviewed by several legal experts. It’s not risk-free, since it would need to stand up in court first (and there are always lawsuit-happy people), but it seems okay based on past judgement.
They hope it will put legal risks into perspective, and will give librarians a tool to go to general counsels and administrations and let them know things are changing. It considered the views of librarians and their values, and they also hope that people will speak out publicly that they support the Code.
Fair use applies in these common situtations:
course reserves — digital access to teaching materials for students and faculty, although it should be limited to access by only the appropriate audience
both physical and virtual exhibits — if it highlights a theme or commonality, you’re doing something new to help people understand what’s in your library
digitizing to preserve at-risk items — you’re not a publisher or scam artist, you’re a librarian making sure the things are accessible over time (like VHS tapes)
digitizing special collections and archives — you’re keeping it alive
access to research and teaching materials for disabled users — i.e. Daisy
creation of search indexes
making topically-based collections of web-based materials
Practice makes practice. It won’t work if you don’t use it.
Fair use is not a right, it is a legal defense. That is something to keep in mind when using copyrighted materials in the classroom. Make sure you understand the circumstances and restrictions that allow for fair use before you do anything with copyrighted material.
PD Info is a website that provides information about music that is in the public domain, but they note that while some printed music is in the public domain, there is virtually no recorded music that is not covered by copyright. (Creative Commons licensed music is still covered by copyright, but the owner has assigned certain aspects of those rights to others.)
The UR Music Library maintains a server that provides streaming audio of recordings for educational use for specific courses. There are also resources such as Alexander Street Press’ American Song collection that provides streaming audio, as well as additional information about the recordings.
Public domain resources can be found all over the web. LibriVox is a site that provides free audio recordings of public domain works. Project Gutenberg provides ebook versions of public domain works.
Creative Commons is a way to allow others to use your work in whatever way you allow. This is a great tool for collaboration and new creations derived from old, just like the old days before copyright. Students need to know that they can use many CC licensed works in their assignments and presentations, and as long as they follow the license terms, they don’t need to worry about whether or not it falls under fair use. Allison has several sources for locating CC licensed or copyright-free media.
“I’ve been thinking about leases and love. I wonder how many relationships end because the lease is up? I mean literally. For N and I it came down to, the lease is up at the end of June, do we sign up for another year together? The answer was no. I don’t think either of us were one hundred percent certain that we wouldn’t have been able to make another year work, but the chances were slim. And if we were going to lose each other, we didn’t want to lose our security deposit too.” -from A Year In Pictures Following The Break-Up