Copyright in Practice-A Participatory Workshop

Copyright from the
outside in
A participatory workshop
Kevin L. Smith, M.L.S., J.D.
Copyright and Scholarly Communications Office,
Duke University Libraries

What to expect
• Scenarios from libraries
• Scenarios from teaching
• Scenarios you suggest
– Speak up
– Write them down
• Interludes on the law
Copyright and Scholarly Communications
Office, Duke University Libraries

Start with a favorite ? for libraries
• We have several VHS tapes which our
Counseling department still assigns for
students to watch. We have looked for
commercially available copies on DVD, but
some are not available in that format. Our
understanding of copyright is that we could
copy a commercially produced DVD we own
without permission, but only for preservation;
we would not be able to allow it to
circulate, patrons would have to view it in our
building.

2 parts to this question
• Section 108 – source of their understanding
about copies and digital format
• Section 107 – Fair use
• Same analysis whether this is for classroom
viewing or physical reserve.

Section 108 (c)
• Replacement copies of published works
– Up to 3 copies
– If damaged, deteriorating, lost, stolen or obsolete
• Is VHS?
– Unused replacement not available at fair price
– If digital, “not made available to the public in that
format outside the premises of the library.”
• Premises? The Public?
• Could make 2 copies in different formats

Bottom line…
• § 108 probably permits reformatted copy if
– Held on reserve for in-library viewing or for circ. to
faculty or students for classroom viewing
– VHS copy is sequestered
• § 107 (Fair Use) probably also permits:
• Purpose – classroom viewing (§ 110(1))
• Nature – creative
• Amount – entire film
• Market – no impact if digital unavailable and 1-to-1
replacement

Interlude – four distinct provisions
• Section 107
– Fair Use – broad & flexible
• Section 108
– Library preservation and ILL
– Does not preclude fair use
• Section 109
– First Sale – permits library lending
• Section 110
– Allows certain public performances

Another library issue
• Our Instruction Librarian has been asked to
make a discipline-specific video about
research methods. The video will be included
in an online course. May he use screen-shots
from the relevant database in the video?
What about if an actual search on the
database is filmed or captured?

What do you think?
• My analysis
– Almost certainly fair use
• Transformative
• Educational purpose
• Informational content
• Small parts
• No market impact (or positive impact)
– Might still be wise to ask permission
• Vendor likely very willing
• Might have instructional materials

Time for comments or questions

Interlude – 5 questions for any
copyright problem
• Is the work protected by copyright? Or is it in
the public domain?
• Is there a license that covers your use?
• Is there a specific exception in © that allows
your use?
• Is it fair use?
• Who can you ask for permission?

Digitization problem
• We want to digitize this work for a collection
available to all on the Internet:
– "Address given at dedication of the Charlie Jones
Soong Memorial building of Fifth Avenue
Methodist Church, Wilmington, November 1,
1942”
– It appeared in “The North Carolina Christian
Advocate,” which carried no © notice, in 1943.

What do you think?
• What is in the public domain?
– Works published before 1923.
– Works of the US federal gov’ t.
– Ideas, facts, short phrases like titles.
– Works published between 1923 and 1989 without
© notice.
• BINGO!
– Works published between 1923 & 1963 for which
the © was not renewed.

Course packs and e-reserves
• Is it legal for a professor to have a TA
photocopy a set of readings to distribute to
students?
• Can I place an article obtained through ILL on
reserve in the library?
• We scanned a book chapter last semester for
a professors Blackboard site and now she
wants to use it again? That’s illegal, isn’t it?

students? Fair use & course pack cases
reserve in the library?

reserve in the library? First sale

reserve in the library? First sale
Georgia State Case

An interlude on recent cases
• Kirtsaeng – reaffirmed first sale regardless of
the origin of the lawful work.
• HathiTrust – Fair use even for mass
digitization, based on transformative purpose.
• UCLA – Dismissed challenge to streamed
digital video. Called fair use argument
“plausible.”
• Georgia State – Challenge to library e-reserves
& faculty use of LMS

Georgia State case
• Trial judge found that 70 of the 75 challenged
excerpts were fair use.
• She imposed strict portion limit:
– 10% or one chapter, whichever is less.
• She rejected rule against fair use for
subsequent uses.
• Four factor analysis favored libraries
• Case is being appealed.

Advice for E-Reserves
• Balance forms of access
• For fair use, stick to small portions
• Always keep course sites closed
• Be creative
– Think about what makes your site a unique
exercise in pedagogy.
• Seek permission when a larger excerpt is
needed.

E-Books, Licensing & ILL
• Three considerations
– Copyright sets default rules
– License may override
• To “preempt” ©, language must be explicit
• “No other use”?
• Silence leaves default rules in place
– What is technically possible?
• TPMs and anti-circumvention laws

Scorecard
• Inclusion of all titles
• Right to transfer
delivery platforms
• Right to lend content
indefinitely
• Integration with catalog
• Access for the disabled
• Single User?
Alternatives?
• Number of loans?
• Delayed sales and/or
Variable pricing?
• Remote checkout?
• Consortial or
Interlibrary loansz?

Licensing Issues
• ILL (founded on sections 108 and 109)
– Could preserve first sale by closing local access if
ebook is loaned.
• Archiving & preservation
– Needs to be DRM free
• Instructional use
– Can we license for course adoption
• Text Mining?

Language from ScienceDirect
The Interlibrary Loan Policy for electronic journals and books is included in each publicly funded institutional
ScienceDirect subscription agreement. In short, the provision allows and provides for the use of electronic
journal articles and book chapters as a source for the fulfillment of Interlibrary Loan (ILL) requests with some
stipulations.
Interlibrary Loan Conditions
This grant applies only to journals and books published by Elsevier. Other publishers may have different
conditions or may not permit interlibrary loans. Elsevier grants the subscriber the right to use articles and book
chapters from subscribed content in the case of ScienceDirect as source material for interlibrary loans subject
to the following conditions:
• The ILL request comes from an academic or other non-commercial, non-corporate research library located in
the same country as the subscriber.
• The requested article or book chapter is printed by the subscriber mailed, faxed or transmitted by Ariel (or a
similar ILL system) to the requesting library. For libraries in the U.S. complying with the CONTU guidelines, it is
not necessary to first print the article or book chapter and then scan it for electronic transmission.
A Note on National Boundaries
Interlibrary loan, and the legal basis for such activities, may vary from country to country. As an international
publisher, Elsevier has worked hard to establish an international level playing field, where all libraries can
provide documents to libraries on the same terms and conditions. Those terms are intended to support
domestic ILL. They are also intended to rein in those libraries who have abused ILL and provide what is more
accurately described as document delivery to anyone anywhere in the world in the name of ILL.
In the US, ILL operates within the CONTU guidelines, which provide a balance between free ILL and payments
to publishers. The responsibility for adhering to CONTU rests with the requesting, not the fulfilling, library.
Requesting libraries located outside of the US are not part of the CONTU agreement and have no restriction on
the number of copies requested on a free (no royalty) basis. That is not a level playing field.

Get started with a fun (and real)
question
I'm a faculty member and I'm doing a lecture on
how to write grants for our faculty development
program. They record and post these lectures
on the university's public website. On my slides
I have different photos of
Mr. Potatohead here and
there and am concerned
about whether Hasbro
could sue us if I include
them.

What do you think?
• Is this fair use?
– How are they used? Just illustrations, or are they
discussed?
• Other issues?
– Trademark.
• Standard is likelihood of confusion
– License
• If obtained from Hasbro site, may be licensing terms

Video for teaching
• Professor wants to post link to YouTube video
in Blackboard for students to watch. Video is
a Monty Python skit. Is this legal?
– Linking does not infringe any of the exclusive
rights of ©.
– Legality of copy probably doesn’t matter.
– Issue of reliability
• Can we download?

Video for teaching
• Professor wants to show a clip from a popular
film that is on YouTube in class. I know she
can show a DVD that we own in class, but
what about something like this?
– Section 110(1) allows public performance for face-
to-face teaching.
– Unless video was not lawfully made and professor
had reason to know that.

Video for teaching
• Professor wants to make a DVD of film clips for
class. Is this OK?
– She also want to use them for her online version
of the same class. Is it the same?

Video for teaching
• Professor wants to make a DVD of film clips for
class. Is this OK? Yes.
– She also want to use them for her online version
of the same class. Is it the same? No, but still OK
• Fair use
• Anti-circumvention & exception
• TEACH Act (§ 110(2))

Video for teaching
• A professor wants to show a video in class that
the university does not own.
– Can she use a DVD borrowed from Netflix?
– Can she show a stream from Netflix from her
personal account?

Video beyond the classroom
• A speaker in our chapel wants to show a short
clip from a popular movie as part of his
sermon.
– Is it OK to show the clip?
– Our chapel services are recorded. Is it still OK?
– What if we put the recorded service on our web
site?

Streamed video “reserves”
• Can we digitize DVDs and stream the films
through Sakai so students in a specific class
can watch an assigned film on their own time?
– Interplay of sections 110(1), 110(2) and 107

Interlude -- Fair use
• Most flexible, least certain, exception
– We use it every day!!
• Based on four factor analysis
– Purpose of use, nature of original, amount
used, impact on market for original
• For last 20 years, courts have looked most at
whether use is “transformative

Transformative fair use
• Transform the original itself, or put to a wholly
new purpose
– Bill Graham Archives
– Turnitin
• Issue of market substitution.
• 3 questions to ask
– Does it help me make my point?
– Will it help my readers/viewers get the point?
– Have I use no more than needed to make the point?

Fair use problems
• Student made a video for class and wants to
use a popular song as the “soundtrack.”
• Faculty member is writing a book about
movies and wants to use film stills to illustrate
her discussion.
• Library has created an exhibit of early 20th
century magazine illustrations related to the
Dreyfuss affair and wants to put some up in an
online version.

Interlude -- Owning copyright
• Since 1989, copyright is automatic
• Owned by the “author”
– Author may be employer
– Authorship often shared
– Interplay between law and campus policy

Work made for hire
• If a work is “made for hire,” law says employer
IS the author.
– Person for created work has no © claim
• 2 types of WMFH
– Created by regular employee in scope of her
employment
– Created by independent contractor
• Fits in defined categories & has explicit agreement
• $$$ is not enough to create WMFH

Submitted scenario
We are accepting video resources from a large, multi-
organization NSF grant. The NSF grant is with each individual
institution, not with the principal investigator (this is critical
when money is involved because the university is ultimately
accountable for expending the money and faculty frequently
move on. When that happens, a new P.I. is generally
appointed by the university). The NSF encourages open
access to resource works but is not clear about who owns the
copyright. We are trying to determine who owns the
copyright for each institution. Is it the institution, since they
contracted with the NSF, the individual faculty member (who
may move on in the middle of the grant), or??? Most
university copyright policies reference published work or
patentable concepts but not research products.

Joint authorship
• Each author must contribute protectable
expression
• Each “joint author” holds an equal share in
the ©.
– Regardless of the size of the contribution
• Each joint author may exercise the exclusive
rights without getting permission from the
others!

Ownership scenario (1)
• A professor created a online course for our
school. Now she has left to teach at another
university. We still want to use some of her
modules in a course we continue to offer. She
says we cannot, and that she will be offering
the same course, with the same content, for
her new employer.
– What’s the solution?

• A graduate student has written an article that
has just been published by an important
journal in his field. Yeah! But now he wants to
use the article verbatim as a chapter in his
dissertation.
– Can he do this?

• The library hired a graphic designer to create a
logo for our library that we want to use on our
web page and all our library publications. Our
new director would like to make a small
modification to the logo, but the designers
says we cannot do that without her
permission.
– The logo is ours, right? We don’t need no stinkin’
permission!

Interlude on policy
• Think in terms of both ownership and
interests
– Who needs to use the works? Can you create
licenses?
• Matrix of different creators, types of work, and user
interests.
• Don’t confuse policy with
– Law
– Guidelines
– Best Practices

Miscellany – a digitization strategy
• Remember that you are creating a new
(transformative?) context for the individual
items.
• Four prong strategy
– Consider what might be in the public domain
– Seek selected permissions for key materials
– Remember & rely on fair use
– Have a “talk to” policy

Miscellany – liability in the library
• We have a new scanner in the library, and I
keep seeing students scanning whole books.
When I do I should tell them stop, right?
– Can you be sure work is not PD and scan is not fair
use?
– Remember §108(f)(1) 0n library liability
• Generally, recall that library employees less
liable than others when they make good faith
fair use decisions (§ 504 (c)(2))

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