Copyright

What happened when a professor was accused of sharing his own work on his website

Recent allegations of copyright violations against a professor who shared his own work on his website spark debate about ownership and whether peer reviewers should be paid.

New release of 1923 titles a boon to artists, scholars

A dazzling array of works from 1923 are now available freely to scholars, artists and writers, opening up new possibilities for teaching and publishing.

Georgia State and publishers continue legal battle over fair use of course materials

Appeals court ruling continues decade-long legal battle between Georgia State University and three publishers over what constitutes "fair use" of course materials. Does anyone still care about the outcome?

Boston College Objects to Paul Ryan Video

In a promotional video posted to the Speaker of the House’s Twitter account, Representative Paul Ryan used video footage of Boston College without getting proper permission from its creator, The Boston Globe reported.

The minute-long video, posted on April 18 and titled “Imagine a Tax Form That Is the Size of a Postcard,” includes eight seconds of footage of college graduates clad in black caps and gowns on a picturesque campus.

The footage, displayed while Ryan discusses the complicated tax provisions surrounding college tuition payments, was taken of BC graduates in front of an iconic campus building, Gasson Hall. It was shot and produced by Sean Casey, a senior creative producer for the university.

“The use of the video footage was not authorized by Boston College,” a spokesman told the Globe.

Casey pointed this out on his own Twitter account last week. “This video includes footage from one of my videos for BC the Speaker did not receive permission to use. … Shame … Shame … Shame …” Casey wrote on Twitter. He said he had reached out to the Speaker’s office about the misuse of his footage.

As of Sunday night, the video was still on Ryan’s Twitter account.

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U.S. copyright law significantly hinders access to information (essay)

Last summer, the U.S. Senate easily confirmed Carla Hayden to became the first new librarian of Congress in almost three decades.

At her confirmation hearing last April, Hayden conversed fluently with admiring members of the Senate Committee on Rules and Administration. All enthused about the promise of the internet to make information universally available. All agreed on the need to digitize the Library of Congress’s holdings and place those holdings on the web. Senator John Boozman, a Republican from Arkansas, said it was time to get the Library of Congress “out to the hinterlands.” Hayden agreed.

In this era of fierce partisanship, the genial bipartisanship on display that day was remarkable, flowing naturally from the self-evident value of disseminating information as widely as possible.

Good education happens, and, indeed, democracy itself works, only when students and citizens enjoy unfettered access to good information and good scholarship. In practice this means that neither a homeschooled fifth-grader, nor my 15-year-old son, nor a high school student in rural Arkansas, nor a college student at a state university, nor a scholar in Niger, should be denied free and easy access to nearly all unclassified information held by the Library of Congress. Or, for that matter, from any major library.

Current technology makes this somewhat lofty vision eminently achievable.

But standing in the way is an 800-pound gorilla: U.S. copyright law.

The current copyright statute, passed in 1976 and revised in 1998, grants authors of books, articles, films and other creative work exclusive rights to their publications -- including the exclusive right to distribute their publications -- for the length of their earthly sojourn. Plus 70 years after they die. The vast bulk of material published in the U.S. after 1923 cannot be digitized and shared.

Hayden knows this. She sees the gorilla every day. But she ignored him during her confirmation hearing, thus placing herself in an awkward position. She could describe in the Senate hearing room the Library of Congress’s laudable decision to digitize the 1774-1804 papers of Alexander Hamilton, this past year’s unanticipated Broadway idol. But she could say nothing about most of the approximately 2,000 published works about Hamilton cataloged in the Library of Congress’s collection.

Might not a student/retiree/scholar/hipster interested in Hamilton’s papers be equally interested in John Chester Miller’s Alexander Hamilton: Portrait in Paradox (1959), James Thomas Flexner’s The Young Hamilton (1978) or Albert Furtwangler’s The Authority of Publius (1984)? The Library of Congress and my library own all three books, but, under current law, we may not digitize or distribute any of them.

Examples of disconnects between copyright law and the public interest are endless. Should the mother of a child with leukemia enjoy access only to medical books published more than 70 years ago? Should the father of an autistic child read only scientific literature published before 1923? (Hint: the serious study of autism began only in the 1940s).

The point, here, is obvious: Congress’s library and other libraries cannot distribute most of their literature to most people. Current copyright law undermines the Library of Congress’s mission, Carla Hayden’s ideals, the professed desires of senators and, of course, the public interest.

It was not always so.

The first copyright statute, enacted in 1790, allowed authors to retain copyright in their work for 14 years. And they could, if they desired, renew that copyright for an additional 14 years. Congress believed that a maximum period of 28 years offered the “limited” protections authorized by the U.S. Constitution to “promote the Progress of Science and useful Arts.”

Under the original statute, the Library of Congress, my library and any library in the world could digitize and disseminate without charge Miller’s, Flexner’s and Furtwangler’s studies of Hamilton to the homeschooled fifth-grader, to my 15-year old son, to the high school student in rural Arkansas, to the college student at a state university and to the scholar in Niger.

We have now, today, the technology to achieve the vision endorsed by our new (and possibly best) librarian of Congress -- a vision ostensibly shared by her admiring senatorial colleagues who, though they agree on little else, appear to agree on this.

What we lack and what we need is an old law -- an old law to serve new technology.

But first we need our new chief librarian to point at the gorilla, yell for Congress’s attention and beg the legislators who confirmed her to act in accord with the ideals they articulated last spring.

Bryn Geffert is the librarian of the college at Amherst College.

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Study explores peer-to-peer research sharing communities

Study looks at the reasons why people pirate scholarly articles from peer-to-peer research sharing communities -- it's more convenience than ideology.

Ohio State faculty object to draft intellectual property policy

Ohio State University faculty members object to a proposed new intellectual property policy they say is too vague and appears to be too broad.

 

Publishers call for federal government to settle 'fair use' in higher education

At a U.S. House hearing, representatives for publishers and colleges argue over whether federal government should get involved in determining how institutions can use copyrighted works.

 

 

Ruling on copyright fair use will hurt professors, students and publishers (essay)

In Friday’s decision in Cambridge University Press v. Patton, the U.S. Court of Appeals for the Eleventh Circuit followed decades of jurisprudence in casting aside bright line rules for determining whether faculty made fair use of copyrighted material. This is regrettable, as the celebrated 2012 district court opinion in the same case had opened up the possibility of teaching faculty how to properly make fair use of material using plain terms and easy-to-understand concepts, while the appeals court opinion returns us to the days of case-by-case holistic analysis and detailed exceptions, loopholes, and caveats.

The case revolves around a challenge by several companies that published non-textbook scholarly works to Georgia State University’s electronic reserve systems, wherein faculty and librarians would scan in excerpts of books for students to access digitally, a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk. The publishers claimed mass copyright infringement while Georgia State cited the fair use provisions of Section 107 of the Copyright Law. 

The district court exhaustively analyzed each work uploaded to electronic reserves, finding only five in violation out of the dozens submitted by the publishing companies, by taking a new twist to the law’s four factors for analysis:

  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.

Traditional fair use analysis calls for a case-by-case analysis of each potential use, independently weighing the four factors holistically, which is difficult and often requires knowledge of unavailable facts (such as the effect on the market of the work, which is nearly impossible for those outside of the company to guess at). (For instance, the Supreme Court in Campbell v. Acuff-Rose Music, Inc. specifically discarded any use of “bright line rules” for determining fair use of copyrighted material.)

Judge Orinda Evans went a different route. She found that de minimis use (such as when a faculty member posts a work but no student ever accesses it) is not a violation, and that in most cases, using one chapter or 10 percent of a book that is under copyright protection would meet the fair use test. The judge decided to clearly assign winners in each of the four factors, and then give the overall win to the party with the majority of factors in their favor.

She wrote that factors one and two almost always went in favor of nonprofit higher educational use of academic works. While a determination of factor four may be difficult for a faculty member to determine, and would likely go in favor of the publishers, the judge ruled that 10 percent or one chapter of a work that is digitally available would meet the fair use test for factor three. Adding factors 1, 2, and 3 together let her find a majority and, thus, fair use, even without factor four.

Note that these findings were for those works that could be purchased digitally. In another section, the judge applied some behavioral economics to factor four by finding that for those works that a publisher did not make available digitally, a faculty member could use approximately 18 percent of the work and still win a fair use analysis.  That larger limit of factor 3 could encourage publishers to make their works available at reasonable prices, so as to discourage fair use without remuneration.

This was a groundbreaking opinion that allowed intellectual property lawyers in higher education to clearly explain to administrators and faculty members which uses would and would not be fair. Rather than require our botany and geography professors to also become copyright scholars, we could provide them with reasonable tests to ensure they properly balanced the interests of students in accessing the content with the interest of publishers in compensation for developing the content. While this wasn’t the first effort to develop fair use standards, it was the clearest, and the first time that such standards were set by a court.

The appeals court rejected this analysis and found that the “District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.”

The appeals court instead called for a return to the holistic analysis. Rejecting the 10 percent or one chapter bright-line rule, the appellate court wrote that “the District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken -- qualitatively and quantitatively -- was reasonable in light of the pedagogical purpose of the use and the threat of market substitution.”

The appeals court decision stands on solid precedential ground, and it is not the first court to call for a holistic and case-by-case analysis. While one can defend that decision by looking to the past, the decision is a poor one for those who look to the future. As content becomes more available in varying formats, and our faculty, staff and students are faced with myriad opportunities to pay for content, make fair use, or violate copyrights of authors and creators, the presence of clear standards and easily digestible rules provided higher education with a fighting chance to educate our academic community and encourage proper balancing and fair (but not inappropriate) use of content.

William Patry and Melville Nimmer, the two seminal thinkers in copyright law, each devote hundreds of pages to explaining copyright law. Their sets of volumes, which cost thousands of dollars, provide a comprehensive analysis of fair use and all of its details. But these books and detailed analysis are well outside the scope of what we expect of our faculty members who do not specialize in intellectual property, and our instructors simply do not have the time to conduct an exhaustive analysis of each use, even if they did take the time to learn all the permutations of the fair use analysis. This isn’t to say that they can’t, but to state the reality that they won’t.

Frankly, the dueling decisions in these cases, and the numerous articles and statements by serious copyright scholars on both sides of this analysis, show that even those who steep themselves in the details of fair use can disagree on whether a certain use is fair or violative.

When intellectual property law experts cannot agree, we should not expect our history and math faculty to do justice to the fair use analysis each time. 

Instead, faculty will divide into two camps.  One group will “throw caution to the wind” and use whatever content they wish in whatever form they desire, hoping never to raise the ire of the publishing companies. 

The other, out of an abundance of caution, will self-censor, and fail to make fair use of content for fear that they might step over a line they cannot possibly identify, and can never be certain of until a judge rules one way or the other.  Either way, our students and the publishers lose out.

The district court opinion shed some light into the murky swamp of fair use analysis. The Eleventh Circuit opinion dims that light, and threatens to return us to a regime wherein faculty who are not experts in copyright law will either use without consideration of the law or self-censor, diminishing the utility of the concept of fair use.

The Constitution teaches that the purpose of copyright is to “promote the Progress of Science and useful Arts.” The district court opinion found that small excerpts available to students “would further the spread of knowledge.”

Arming faculty with clear rules and standards to properly balance fair use of content would go a long way toward achieving this goal.

Joseph Storch is an attorney in the State University of New York Office of General Counsel. The views expressed here are his own.

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