Copyright Law, Teaching andLibraries in the Digital Age

Team BetaTeam Beta

Benjamin Onu AraIngah Davis-Crawford

Yael DavisBecky RamosKerstin Sewell

Simply click each slide to

advance to the next!

Agenda

1. Fair Use Doctrine1. Fair Use Doctrine

3. DMCA3. DMCA

5. Copyright Law & Teaching and Libraries Video

5. Copyright Law & Teaching and Libraries Video

2. Fair Use Learning Activity2. Fair Use Learning Activity

4. DMCA Learning Activity4. DMCA Learning Activity

In this section you will learn about:

• The history of the fair use doctrine

• Types of uses that the fair use doctrine protects

• The four fair use factors

History of Fair Use Doctrine - 1st

Years of Copyright Law

• According to Nemire (2007) the first copyright law was enacted in 1790, borrowed from the Statue of Anne, which was enacted by the British Parliament in 1710 (Kelley and Bonner, 2006).

• The years that followed saw the incurrence of various lawsuits.

History of Fair Use Doctrine -Folsom v. Marsh

Nemire draws particular attention to Folsom v. Marsh (1841), in which Justice Story’s decision placed limitations on the amount of the material that can be quoted from copyrighted works.

“reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism…

In short, we must often…look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” (Nemire 2007, p. 26)

History of Fair Use Doctrine -Birth of Fair Use Doctrine

The ruling rendered for Folsom v. Marsh (1841) gave rise to what is now known as the fair use doctrine. The fair use doctrine which is embodied in section 107 of the Copyright Act of 1976 states:

...the fair use of a copyrighted work, including such use by

reproduction in copies or phonorecords or by any other means...for purposes such as

criticism, comment, news reporting, teaching (including multiple copies for classroom

use), scholarship, or research, is not an infringement of

copyright. (Kelly and Bonner 2006, p. 10)

...the fair use of a copyrighted work, including such use by

reproduction in copies or phonorecords or by any other means...for purposes such as

criticism, comment, news reporting, teaching (including multiple copies for classroom

use), scholarship, or research, is not an infringement of

copyright. (Kelly and Bonner 2006, p. 10)

History of Fair Use Doctrine -Four Factors

Additionally Justice Story’s ruling is significant because it elucidates the four factors that determine fair use as follows (Nemire, 2007):

Factor 1Factor 1

Pur

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Factor 2Factor 2N

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Factor 3Factor 3

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cop

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Factor 4Factor 4

Effe

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What is Fair Use?

• Fair use is legal doctrine provided in section 107 of U.S. Copyright Law.

• The doctrine allows for use of copyrighted materials under certain conditions. See the next slide for these conditions!

What types of uses does the fair use doctrine protect?

• Fair use allows copyrighted materials to be used for purposes of criticism, news reporting, parody, scholarship, teaching and research.

• Determination of fair use is based on the four factors previously discussed in this presentation. Let’s get to know more about them in detail!

Factor 1

Use under this factor will most likely to be considered fair, if the final work is transformative in nature. A commercial use will less likely be considered fair.

Purpose and character of usePurpose and character of use

References

Alexander & Baird, Bruwelheide, Irwin, Nemire, Salomon

Factor 2

• Works that are considered more protected thereby their use is less fair, i.e. creative/fictional and unpublished works.

• Factual works and works in the public domain are less protected; thereby their use is more fair

Nature of the copyrighted workNature of the copyrighted work

References

Alexander & Baird, Bruwelheide, Irwin, Nemire, Salomon

• In general the lesser portion used, the fairer the use.

• If the portion used represents the “heart”of the work, the least fair is the use.

Factor 3

Amount and substantiality of theAmount and substantiality of theportion used relative to entireportion used relative to entire

copyrighted workcopyrighted work

References

Alexander & Baird, Bruwelheide, Irwin, Nemire, Salomon

Factor 4

In general all four factors are considered equally, but the courts often gives more weight to this factor; which considers the effects of the use on the market value of the copyrighted work.

Effect of use upon the marketabilityEffect of use upon the marketabilityand value of the copyrighted workand value of the copyrighted work

References

Alexander & Baird, Bruwelheide, Irwin, Nemire, Salomon

Assess your knowledge of fair use!Assess your knowledge of fair use!

Learning Activity 1

1. Can I use fair use to force a copyright holder to turn over her or his copyrighted work to me so that I can copy it and use it?

2. If the owner of a copyrighted work that is displayed on a website uses technological measures to prevent me from copying the work onto my website, but my copying would be a fair use, can I use technological measures to circumvent the copy protection and make the copy anyway?

3. If I am engaged in research, educational, or academic pursuits, does the fair use doctrine permit me to copy articles from a journal or periodical?

In this section you will learn about:

• The History of the DMCA

• The Digital Millennium Copyright Act

• DMCA Safe Harbor Provisions

• Notice & Takedown Procedures for Web Sites

• DMCA’s Anti-Circumvention Provisions

• Technological Protection Measures

Historical Timeline of theDevelopment of the DMCA

1886 - The Berne ConventionThis is an international Convention and “protects the literary, artistic and scientific works” (p.173) of its member countries.

1996 - WIPO (The World Intellectual Property Organization) Copyright Treaty ActThis act builds on the Berne Convention by including the protection of “digital works and computer software” (p. 173). Each country that signed the Treaty had to develop protections in their copyright law.

1998 - The Digital Millennium Copyright Act (DMCA)Congress passed the DMCA, amending the U.S. copyright law, in order to conform to the protection goals set forward by WIPO of digitally formatted works. (Alexander & Baird, 2003)

What is the Digital Millennium Copyright Act?

The DMCA has a number of different parts...

• One part is the anti-circumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see question 5).

• Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures.

What are the DMCA Safe Harbor Provisions?

• The Safe Harbor provisions, state that an Internet provider who meets the criteria set forth in section 512 of the DMCA, will not be monetarily liable for the copyright infringement activities of its users.

How are safe harbor provisions applied to educational institutions?

• Section 512(e)(1), provides an exception to educational institutions, whose faculty or graduate student employees engaged in teaching and/or research functions, will not incur monetary liable for infringement activities by the aforementioned employees provided:

• The infringing activities did not involve the provision of access to materials required for a course within the previous 3 years [512(e)(1)(A)]

• The institution has not received more than 2 notice and takedowns by the faculty member or graduate student in the preceding 3 year period [512(e)(1)(B)]

• The institution provides all users of its network or system withinformational materials that describe and promote compliance with copyright law [512(e)(1)(C)]

What are the notice and takedown procedures for web sites?

• In order to remove or disable access to an allegedly infringing copyrighted website, the copyright owner must provide the service provider with the following:

• The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]

• The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].

• Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].

• A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].

• A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

• When the service provider receives notice from the copyright owner, he/she is required to immediately to remove or disable access to the infringing material. Under Safe Harbor the service in under no obligation to inform the allegedly infringing party, of the aforementioned action.

What are the DMCA’s anti-circumvention provisions?

The DMCA contains four main provisions: 1. A Prohibition on

circumventing access controls [1201(a)(1)(A)][1201(a)(1)(A)];;

This provision prohibits the act of circumventing

technological protection systems.

2. An access control circumvention device ban

(sometimes called the "trafficking" ban) [1201(a)(2)][1201(a)(2)];;

See provision 3

3. A copyright protection circumvention device ban

[1201(b)][1201(b)];; and, The 2nd and 3rd ban

technological devices that facilitate the circumvention of access control or copy

controls.

4. A prohibition on the removal of copyright management

information (CMI) [1202(b)].[1202(b)].Prohibits individuals from

removing information about access and use devices and

rules.

So what is all the controversy about the DMCA?

The digital rights management (DRM) technology that allows copyright owners to block access to their copyrighted materials coupled with the DMCA anti-circumvention provision have the potential to nullify fair use and first sale as viable copyright exemptions.

References

Bernstein, Gasaway, Russell, Singh

What are technologicalprotection measures?

• Access controls -- An access control is a technology, like a password or encryption that controls who or what is able to interact with the copyrighted work. It is a violation of the DMCA to circumvent access controls, but it is also a violation to provide tools to others that circumvent access controls (including selling, distributing free of charge, and possibly even linking to a site with such technology – or even the source code). [1201(a)(3)(B)]

• Copy controls -- Technological systems designed to protect against copyright infringement control whether the work can be copied, how many copies can be made, how long you can have possession of the work, etc. It is a violation of the DMCA to provide tools to others that circumvent copy controls [1201(b)], but it is not a violation of the DMCA to engage in the act of circumventing copy controls

There are 2 types of DRM technology:

Assess your knowledge of DMCA!Assess your knowledge of DMCA!

Learning Activity

1. Does a DMCA takedown mean the material taken down was infringing?

2. Can a system be legally circumvented?

3. Are there exceptions in the DMCA to allow circumvention of technological protection systems?*

4. How are libraries and archives affected by the anti-circumvention provisions?

5. How does the DMCA affect academia and the public domain?

References

American Library Association

VideoVideo

UNC Chapel Hill – Video Synopsis

In the following video, the interviewees discuss many emerging concerns in regard to copyright law and the changes that are occurring at the UNC law library in response to the needs of the students and in keeping within current regulations.

In this video, you will hear important discussion about:

•the role of law libraries and its functions•privacy law and copyright issues •the open access movement•the importance of information accuracy in official web sites•the student movement in interest of copyright issues •the creative methods that are being used to share information legally

Video Table of Contents

• 0-3:00: Introduction• 3:00: Role of law

libraries• 4:00: Privacy law• 4:38: Copyright Issues• 8:25: Open Access

Movement• 11:35: Primary legal

resources and official web sites

• 13:25: Web site changes in response to new laws

• 14:50: Open access for poor/developing countries

• 16:30: Open access for legal resources

• 18:45: Open source creativity

• 20:10: Closing remarks

The following video is 20 minutes long. If you would like to jump to a specific section, drag the video’s progress bar to the desired time.

Information in Life Video

Select picture to access

video in new window

Interviewees are:

• Anne Klinefelter, Director of UNC Law Library• Deborah Gerhardt, Director of its Intellectual Property

Initiative and Adjunct Professor or Law

References

Alexander, S. & Baird, D. (2003). The wrinkle in your research and teaching: Copyright, DMCA, guidelines, and public domain. Teaching, learning, and technology: The challenge continues. Proceedings of the 8th Annual Mid-South Instructional Technology Conference, 30 March-1 April, 2003. Murfreesboro: Middle Tennessee State University. (ERIC Document Reproduction Service No. ED479237) Retrieved April 10, 2008, from ERIC.

American Library Association (2007). Billington approves DMCA exemptions. American Libraries, 38(1), p19(1). Retrieved April 10, 2008, from Library Literature & Information Science.

Bernstein, J. (2007). A DMCA Fix Needed. EContent, 30(6), 12-13. Retrieved April 10, 2008, from Academic Search Premier.

Bruwelheide, J.H. (1997). Copyright: Opportunities and restrictions for theteleinstructor. New Directions for Teaching and Learning, (71), 95-101. Retrieved April 10, 2008, from ERIC.

Gasaway, L.N. (2003). The new access right and its impact on libraries and library users. Journal of Intellectual Property Law, 10, 269-308. Retrieved April 5, 2008, from Lexis-Nexis Academic.

References - 1

George Washington University Law School, Chilling Effects Clearinghouse. (n.d.). Frequently asked questions (and answers) about DMCA safe harbor provisions. Retrieved April 23, 2008, from http://www.chillingeffects.org/dmca512/faq.cgi

George Washington University Law School, Chilling Effects Clearinghouse. (n.d.). Frequently Asked Questions (and Answers) about Copyright and Fair Use. Retrieved April 23, 2008, from http://www.chillingeffects.org/fairuse/faq.cgi

George Washington University Law School, Chilling Effects Clearinghouse. (n.d.). Frequently asked questions (and answers) about anticircumvention(DMCA). Retrieved April 23, 2008, from http://www.chillingeffects.org/anticircumvention/faq.cgi#QID119

Irwin, K. (2007). Librarians who teach: Expanding the distance education rights of libraries by applying the technology education and copyright harmonization act of 2002. Western New England Law Review, 29, 875-914. Retrieved April 5, 2008, from Lexis-Nexis Academic.

Nemire, R.E. (2007). Intellectual property development and use for distance education courses: A review of law, organizations, and resources for faculty. College Teaching, 55(1), 26-30. Retrieved April 10, 2008, from Academic Search Premier.

References - 2

Kelley, K.B. & Bonner, K.M. (2006). Copyright basics. In K.M. Bonner (Ed.), The Center for Intellectual Property Handbook (pp. 1-14). New York: Neal-Schuman Publishers, Inc.

Russell, C. (2003). Fair use under fire: ALA’s copyright expert gives her take on the challenges digital rights management presents for end users—and librarians. Library Journal, 128(13), 32-34. Retrieved April 14, 2008, from Expanded Academic ASAP via Gale.

Salomon, K.D. & American Association of Community Colleges (1999). Copyright considerations in distance education and technology-mediated instruction. (ERIC Document Reproduction Service No. ED436199) Retrieved April 10, 2008, from ERIC.

Singh, J. (2007). Copyright issues. DESIDOC Bulletin of Information Technology, 27(6), 19-30. Retrieved April 10, 2008, from Library, Information Science and Technology Abstracts.

University of North Carolina at Chapel Hill, School of Information And Library Science. Information In Life [Videorecording]. Retrieved April 21, 2008 from http://www.youtube.com/watch?v=Clh3f1YJfMI