Essential Copyright Knowledge

A Toolkit for Teachers and Librarians

Meredith Jacob

Kristina Ishmael

Will Cross

Peter Jaszi

Michael Carroll

Jonathan Band

Agenda

• Intro
• Why copyright
• The goals of copyright today
• Copyright and teaching: Confusion + concern
• What copyright is (and Isn’t) about
• A closer look at fair use
• Copyright and risk
• Q&A

Meredith

Why Copyright?

Fostering Knowledge

Michael

• Knowledge as a public good
• The theory of incentives and the role of limited monopolies
• The public interest always comes first

Copyright’s Original Purpose:

“To promote the Progress of Science and the Useful Arts”

Michael

• Strong protection for rights holders
• Protection against competition in the marketplace
• Creator can give permission in a license or a sale

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AND

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• Users rights for everyone
• Not all uses need a license or permission
• If fair use or another user right allows, then you don't need to ask for a license

The Result: Balanced Copyright

Michael

• Historically linked -- from the earliest times

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• Dynamically related -- a theme in copyright policy today

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Copyright Supports an Educated Public

Michael

The Goals of Copyright Today

Peter

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Without Abandoning Old Goals, Copyright Has Embraced New Ones

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For example, human rights include the right to education, as

In the 1948 Universal Declaration of Human Rights, Art 26:

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Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms….

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Peter

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More Goals of Contemporary Copyright

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• Assuring fair distribution of opportunities to enjoy the benefits of knowledge
• Realizing the promise of new technologies
• Summed up in “access to knowledge” -- a watchword both internationally and at home

The U.S. has embraced the 2019 UNESCO Recommendation, which include the following Areas of Action:

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• Building the capacity of stakeholders to create, access, re-use, adapt and redistribute OER;
• Developing supportive policy for OER;
• Encouraging inclusive and equitable quality OER;
• Nurturing the creation of sustainability models for OER; and
• Promoting and reinforcing international cooperation in OER.

Open Educational Resources and Copyright Policy

• Congress and the courts acknowledge its importance in copyright policy (e.g. Authors Guild v. HathiTrust, citing the American for Disabilities Act))

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• US leads international movement to inscribe the right to read in international copyright (2013 Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, effective 2016).

Fundamental Rights and Copyright Policy:

the Case of Accessibility

Peter

Who Benefits from Accessibility: Ronald Mace on Universal Design Beyond Assistive Technology

“Universal design is design for the built environment and consumer products for a very broad definition of user that encourages attractive, marketable products that are more usable by everyone.”

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Examples (among many) include:

• Ramps and curb cuts
• Large print labels
• Versatile digital text

Peter

Copyright and Teaching:

Confusion + Concern

Kristina

• Desire to model “doing the right thing”
• Aggressive messages from rightsholders and commercial licensors
• In terrorem advice from “experts”
• The “guidelines” trap
• Lack of institutional support and guidance
• Fear about risk and risk exposure

Why Do Educators Worry So Much

About Copyright Compliance?

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Kristina

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• Pre-service training
• Information sharing
• Mutual support
• Reliable information, including Best Practices documents cmsimpact.org/program/fair-use/ and OER best practices in the works!

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How to Overcome Copyright Anxiety

Kristina

What Copyright Is

(and Isn’t) About

Will

• Broad subject matter: “original works of authorship”
• Automatic protection and long duration
• Closed list of reserved rights
• Even then, limited protection -- idea/expression
• More limits -- specific exceptions (108/110)
• Supplemented by general, flexible fair use doctrine

The Structure of Copyright

Will

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• Not anticipated in 1976 Act
• Addressed in TEACH Act of 2002 -- tailored to technologies and practices of the late 1990’s
• Sec. 110(2) proved inadequate in scope and technically difficult to access
• Fortunately, fair use operates as a complement and supplement to Secs. 108, 110, etc.

The Case of Online Education

Will

• Educators need to think about plagiarism, but shouldn’t confuse this ethical norm with the legal rules of IP
• Trademark law (protection for commercial signs and symbols) seldom comes up in teaching or creating course materials
• The same is true of so-called “rights of publicity”

Beyond Copyright

Will

A Closer Look at Fair Use

Peter

• If there was ever a risk in relying on fair use, it is now more predictable than ever, thanks to the Congress and the courts.
• Four factor statutory test developed from common law = why, what, how much, and what economic effect?

Fair Use Basics

Peter

• Are you doing something new or different (something “transformative”) with the material?

AND

• Is the amount you are using -- whether a part or the whole -- appropriate ?

If yes to both, it’s unlikely that you’ll be providing a “substitute” for the copyright work in its intended market - which is the only pocketbook issue relevant to fair use.

Fair Use: Two Core Questions

Peter

• Subjecting works to critique and analysis
• Using works to illustrate arguments
• Copying works to promote accessibility
• Providing texts for language learning
• Promoting media literacy
• Developing new educational materials
• Employing “orphan works”
• And many more…

Examples of Fair Use in Action

Meredith

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• Uses designed mainly to set a mood or grab attention
• Uses that aren’t proportionate
• Uses of commercial educational materials
• And . . .

Fair Use Caution Flags in Education

Meredith

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Copyright and Risk

Jonathan

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• The file sharing cases
• DynaStudy v. Houston S.D.
• “Actual” damages will be trivial -- lost licensing fees
• Significant awards of statutory damages unlikely -- and unheard of -- where educators relied in good faith on fair use under 504(c)(2)
• Teachers need better, more reliable information about what is -- and isn’t FU -- now and in the future

Exaggerated Fears About Liability

Jonathan

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• A question of professional and institutional culture
• Pre-service training should address copyright issues
• Schools should support staff who try to use copyright to serve learners

Professional and Reputational Fears

Jonathan

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Educational Fair Use -- Now and After the Emergency

Peter

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Questions and Discussion

Thank You

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