Case Study Week 6: Fair Use and OCW

Describe one scenario which you currently experience in which copyright is a factor in the use of learning materials. What is the relevant copyright law in your jurisdiction? Are there any relevant exceptions? Does the law hinder or assist you to obtain access? How could this scenario be improved by open educational resources? Are there any obstacles to using OER’s?  If so, please describe them, along with proposed solutions or work-arounds.

Scenario

Maria works in the faculty technology support office of a US-based institution and provides OpenCourseWare support. She helps professors convert their traditional courses into OpenCourseWare (OCW) courses. In addition to digitizing, designing, and assembling the layout of the OCW course, Maria also does a copyright check for each piece of course content in order to determine which materials can be included in the OCW version of the course and which cannot.

Maria has been working with Professor Crabb, who has recently decided to put his Cognition and Instruction course on the school’s OCW site. Maria discovers that a journal article used to illustrate the various aspects of meta-cognition is copyrighted by the publisher. Professor Crabb explains that he has always claimed fair use when making photocopies of the article. He feels that it illustrates an important point, and he doesn’t want to remove the article from the OCW course.

Questions on scenario:

1. Why might materials used in a face-to-face course require a copyright check before uploading the content as an OpenCourseWare course?

2. What are the four factors of fair use? Does fair use apply to OCW when the materials are made publicly available, such as in an OCW site? Why or why not?

3. What possible solutions or work arounds can Maria offer Professor Crabb?

4. Professor Crabb also wants to use an image for the course that is licensed CC-BY-NC-SA, but he insists on making his whole course CC-BY because he has been told it will be easier for others to reuse. How might you resolve this issue?

Responses:

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Case Study Week 5: Zanele Dube’s Weather Prediction Text

Questions on scenario

1) How can she use technology (formats, hosting) and licenses to achieve what she wants? (Answer for your own jurisdiction)

These seem like two different scenarios. For the first, involving making her work on weather prediction available to her students online for comment, a wiki or blog with a CC license seems like the best option. In this way, students can participate either by editing the work directly in the case of the wiki, or leaving comments in the case of a blog.

In the second scenario, concerning sharing materials with an individual colleague, I would suggest that either email, or some kind of password-protected information management system would be the best mechanism. In this way, the copyrighted materials are not being widely distributed, and an argument can be made for personal use and fair dealing.

2) What licence or licences would be appropriate for her to use on the work? (Answer for your own jurisdiction)

For the first scenario, Professor Dube’s concerns about people profiting from her work could be managed with one of the more restrictive Creative Commons licenses, such as BY-NC-ND. This will also limit modifications of her work, which will reduce the possibility that people will use it in ways she objects to. This would limit the usefulness of her work by others, however, and it would not qualify as an Open Educational Resource, but after she tries the more restrictive license and finds that nothing bad happens, perhaps she would be willing to consider a more open license that would expand the impact and reach of her work.

For the second scenario, the licensing options for the works that the professors created together are limitless. If they want to make the works widely available for reuse and remix, the Creative Commons Attribution license would be best. If Professor Dube’s concerns from the first scenario also apply here, then a more restrictive license like BY-NC-ND would be better.

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Case Study Week 3: Francesca the Teacher with the Projector

Senario

Francesca is a teacher at a less privileged, under resourced school. Because this school lacks resources Francesca  does not have access to technologies such as a smart board. At high-end schools, teachers often scan materials onto smart boards and present it to their students. Though Francesca has access to a photocopy machine, she is afriad of making multiple copies of this material. However Francesca needs this material to properly educate her students. To comply with what she believes copyright law requires, Francecsa decides to transcribe this particular work onto a transparency to and then to display it on a projector for students to copy in their notes, even though it means making a special arrangement to borrow the projector.

Questions on scenario

Is this form of reproduction a violation of copyright laws?

If so, how could Francesca avoid violating copyright in this situation??

In the United States, the legality of Francesca’s strategy depends on whether or not she is making a fair use. We can return to the four factors of fair use from last week, found in section 107 of the U.S. Copyright Act: 1) Purpose of the use; 2) Nature of the work being used; 3) Amount used relative to the whole; 4) Potential impact on the market for the original.  Without knowing details about the work that she is copying onto transparencies, it is impossible to make a  complete fair use assessment, however, given that the use is limited to the classroom, and given that photocopying for classroom use is generally permissible under section 107, we would argue that not only is Francesca probably not breaking the law, she can probably do more than she is currently doing and make photocopies to share with her students.

While case-by-case licensing of individual works has been a straightforward process among schools, colleges, and libraries for many years, collective and blanket licensing schemes for educational use are still in their infancy in the United States. The Copyright Clearance Center began offering blanket licenses for educational institutions in 2007, but these have been criticized by James Boyle and Kevin Smith, (among others) and it is not clear how widely they have been adopted. Furthermore, there is not currently any case law in the United States indicating that because the market for licensed educational uses is growing, photocopying for classroom use is no longer fair. The textbook Introducing Copyright suggests that blanket licenses may now be part of the “normal exploitation of the work” according to the Berne Convention, and therefore “royalty-free use of copyright works will no longer fall under the three-step test” (page 90). However, both common practice and written law in the United States suggest that unlicensed photocopying for the classroom, provided it is not performed by a copy shop (see Basic Books, Inc. v. Kinko’s Graphics Corporation), remains legal.

What exceptional uses can Xuan make of the resources, including how much of which resource and under what conditions?

The answer to this question varies by type of resource and by country depending on local fair use and fair dealing laws:

United States

In the United States, there are no numerical guidelines for what percent of copyright works can be used under fair use.  Since Xuan is using these materials to teach community journalists, the Code of Best Practices in Fair Use for Media Literacy Education

(http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/)

provides helpful guidelines (but they are just that, guidelines, not statute).  Instead of a numerical guideline, Xuan needs to make a reasoned judgment about what portion of the works are required to accomplish her educational goals.  In some cases, this can be the entire work if her educational goals could not be accomplished with only a portion of the work.

It is likely that Xuan would rely on fair use (section 107 of the U.S. Copyright Act) in order to make copies of the resources without permission. While fair use has no hard and fast guidelines, and no set percentages that are acceptable, it does have four factors that Xuan can consider to determine whether or not her use is likely to be fair.

1) The purpose of the use: Non-profit educational uses are more likely to be considered fair than commercial uses. In addition, photocopying for classroom use is explicitly permitted in section 107 . Xuan’s use is educational and non-commercial, which weighs in favor of fair use.

2) The nature of the work: Highly factual works have a thinner layer of copyright protection than creative works. The newspaper article and the textbook are both very factual, while the photograph may be more creative, so this factor would weigh in Xuan’s favor for the first two items, and may be against her for the photograph.

3) The amount of the work being used relative to the whole: In general, a use is more likely to be fair if it involves only a small portion of the total, while using the whole work is more likely to be infringement, but as always, it depends. In all cases, Xuan would like to use the whole work. For the newspaper article, one could argue that a single article is only a small fraction of a day’s newspaper, but for the 100 page textbook, it may be that photocopying the whole book would be too much. Xuan may consider whether there are parts of the book that are most relevant to her class. For the photograph, she presumably wants to use the whole thing, so again, this factor may weigh against her.

4) The potential impact on the market for the original: Would the proposed use compete with the original work in the marketplace? In the case of the newspaper article and the photograph, it sounds like Xuan’s work would not have a negative effect on the market for the original. If the textbook is in print and available for purchase, then the photocopies she makes would probably mean that her students won’t buy the book when otherwise they would. If the book is out of print, one could argue that there is no market on which to have an impact, and therefore photocopying it would be a fair use.

Applying these guidelines to the 3 works Xuan would like to use suggests:

• 10 page article from a local newspaper:  Xuan should determine if she can use a portion of the article to achieve her goals.  It is likely that she could and therefore should only use the relevant portion.  However, there may be a legitimate educational purpose to provide the entire work – for instance, she might be teaching article development so including the beginning, middle, and end might be necessary for the lesson.
• 100 page textbook:  It is very unlikely that Xuan could only accomplish her educational goal if she used the full 100 page text.  Therefore, she should identify only the required portion.  However, she would be able to photocopy and distribute that portion to her class.
• Photograph:  It is unlikely that Xuan could accomplish her educational goals with only a portion of the picture.  If indeed, the entire picture was required to achieve her educational goals, Xuan could copy in its entirety.

In all cases, Xuan should provide attribution for the works wherever possible. Though this is not a part of American copyright law, it is good scholarly practice.

Case Study: Week 1

Part 1: Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?

Subject to copyright:

• Any original writing by Professor Dube would be subject to copyright as long as it was captued in a fixed medium.

Not subject to copyright:

• Factual data about local weather patterns, because facts by themselves do not represent original or creative ideas and cannot be copyrighted.
• NASA satellite images of clouds are in the public domain because they are works of the United States Government. US Government works are not subject to copyright. Sometimes NASA and other government organizations note that some of the materials they publish or distribute may be protected by copyright, but this is only applies to third-party content mixed in with NASA-generated content.

Possibly subject to copyright:

• A lengthy account of local weather patterns written by the local bishop in 1905 could still be subject to US copyright if it was unpublished. While pre-1923 works are in the public domain if they have been published (and would enter the public domain after 95 years from the date of publication), unpublished works are under federal copyright for at least the life of the author plus 70 years. So if the bishop’s account of local weather patterns was unpublished it could still be subject to federal copyright, depending on how long the bishop lived.

Part 2: What could Professor Dube do about the refusal to allow her to assign her own article?

The professor should refer back to her contract with the publisher to see what rights she has given to the publisher. While most publishers require authors to grant them exclusive distribution rights this can vary. Another important point to make here is that just because an organization, such as a publisher, asserts itself as an exclusive distribution chanel does not mean this assertion is correct. In the United States Professor Dube could assert fair use, make photocopies of her article, and assign it to her class. Section 107 of the US Copyright Act explicitly identifies photocopying for classroom use as permissible and fair. If she makes a fair use of the article, she can do so without the publisher’s permission, and can do so even if the publisher says she can’t.

Questions:

1. What is copyright?

   Copyright is a “bundle of rights” governing who may use a creative work and how. It is a limited monopoly granted by governments to authors and creators “for limited times” that grants creators a certain amount of control, but not total control, over the use of their works. Copyright comes with five major rights: The right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. In addition, copyright holders are able to transfer or license these rights to others.

2. What activities does copyright prohibit?

   Copyright limits certain uses of a creative work, but because there are exceptions to those limitations, it’s hard to say whether copyright absolutely prohibits some kinds of activities. The exclusive rights of the copyright holder are the right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. As a result, it would appear that copyright prohibits everyone from doing those things with a creative work unless they are the copyright holder. However, it is possible to do things such as make and distribute copies, or create derivative works, in a manner that would be considered fair use or fair dealing and hence not prohibited. If a use is not fair, or otherwise protected by an exception to the exclusive rights of the copyright holder, then it is prohibited. Some kinds of uses that are probably not fair include making and selling copies for profit that compete with the original in the marketplace; making a derivative work that is not considered a parody or transformative in some way; performing the work publicly in a commercial setting without permission.

3. Does copyright cover ideas or only expressions?

   Copyright only covers expressions.

4. What requirements must resource meet for copyright to apply?

   A work must be an original literary or artistic production. In most countries, it must involve some small measure of creativity, but in other countries, the investment of “hard work” absent creativity (the phone directory example) suffices. A work must be “fixed” in some tangible form, such as on paper, on celluloid, on canvas, made of copper, or even on a hard drive. This can get tricky, but, as an example, in the case of choreography, the choreographers’ notes are considered the choreography for the purposes of copyright.

5. What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?

Authors can sell some of all of the economic rights of their copyright, but not right to be known as the author. In places where there are moral rights, such as the UK and France, the author maintains the moral rights even if all other rights have been sold or transferred. Moral rights include “the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” As such, the author could control the derivatives of the work if she could prove that it would negatively impact her reputation.

6. What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?

Public domain describes works where copyright does not apply. They may be used by anyone, anywhere, anytime without permission, license or royalty payment. Works enter the public domain when copyright term ends or the copyright has been abandoned. The copyright term lasts for a minimum of 50 years beyond the death of the copyright holder, depending on the country. In the US and EU, this has been extended to life plus 70 years. Works can enter directly into the public domain if an author declares no rights reserved. Additionally, original works by the US government, some other federal governments, and some state governments are not copyrighted and – save for some statuatory exceptions – enter automatically into the public domain.