Copyright and Fair Use in Higher Education

Copyright and Fair Use in Higher Education

September 6, 2019 0 By Ronny Jaskolski


Hello, and thanks for watching our presentation
on copyright and fair use in higher education. This is actually a rerecording. We recorded
the live presentation, but the audio didn’t come through, so I’m actually doing this
the next day. This is in conjunction with Bret Moberg, but you’re only going to hear
my voice, because again, we’re redoing this for the recording. So it might be a little
different than the live recording, but feel free just to get in touch with me with questions.
Also, I will try to keep this to the original 50 minutes of the original presentation. For
those who don’t know me, my name is Scott Thomson, and I’m the library director at
the Boxer Library. So why are we giving a presentation on copyright? Well, because we
haven’t had one in a while, and a few questions have come up recently concerning activities
with copyright implications — things like recording and posting lectures, posting materials
in D2L. So today we’re going to provide an overview of copyright and fair use and
tell you about some materials that can help you make informed decisions when dealing
with copywritten material. So here’s what we’re going to cover today. We’re going
to cover “What is copyright?” including what information is copyrightable, what rights
copyright owners have, who owns a copyright when something is created, and a brief little
bit about copyright roots and history, just because I think it’s important for understanding
how the law is developed. Then we’re going to talk about what is fair use, including
the four factors for determining fair use and the special considerations that we get
for being in non-profit education. Then we’re going to talk about guidelines for applying
fair use, including safe harbor limits and a brief little bit about attribution. Then
we’re going to talk about some of those current copyright topics, things like posting
copyrighted materials to D2L, distance education, and lecture capture and posting. And then
we’re going to talk about some options for using copyrighted information in your courses,
some resources, things like permission and linking. And then of course in the live presentation,
we had time for questions. If you have questions about this, feel free, please, just to get
in touch with me. My contact information is at the end of the presentation or on the library
website. I also maintain this copyright information page, which is also available on the library
website. It has a brief overview of a lot of what we’re going to talk about today,
and I think pretty much all the resources I’ve cited in my references or linked to
or mentioned in any other way are linked on this page as well, so they should all be pretty
easy to find. Okay, so first of all, why am I giving this presentation? What do I know
about copyright? I have a certification in copyright from the University of Maryland
University College, but just the standard legal disclaimer: I’m not a lawyer, so nothing
I say today should be construed as legal advice. And as I said in the intro, the goal today
is to provide you with an overview of copyright and fair use and how that works, and provide
you with some tools you can use to help make informed decisions when working with copyrighted
material. All right, so what is copyright? Most people think they know what copyright
is, but it’s worth taking a minute to discuss what it really means and where it came from,
since it’s actually a little different than most people think. So first, from Title 17
of the U.S. Code, here’s what copyright is: “Copyright is a form of protection provided
by the laws of the United States to the authors of ‘original works of authorship,’ including
literary, dramatic, musical, artistic, and certain other intellectual works.” Basically,
anything that is a creatable work. What this means basically is that copyright protects
works. If you create a work or if you own the copyright to a work, you have the right
to control what happens to it. It should, however, be noted that the content of the
work created matters; it’s important because not all information is copyrightable. Works
are copyrightable, but not all information is. From the U.S. Code: Copyright protection
does not extend to any idea, procedure, process, system, method of operation, concept, principle,
or discovery, regardless of the form in which it is described, explained, what have you.
What this means in a nutshell is that works are copyrightable but facts are not. Here’s
a helpful example to kind of conceptualize this. If you put a table or a graph or image
into a publication, maybe you add some colors to a graph or design the images in a certain
way, the design, the colors, the attributes of that image are copyrightable, but the facts
within it are not. So just keep that in mind. Creative works, anything you create, is copyrightable,
but the actual scientific facts within it are not. For a non-scientific example, Brett
likes this one a lot: you can write a book about star-crossed lovers with a tragic ending;
however, you cannot write Romeo and Juliet. So, you know, you can design things around
it, but the actual facts themselves are not copyrightable, even though Romeo and Juliet, of course, is now is in the public domain. Okay, so what rights do copyright holders have? A copyright
holder has the exclusive right to do the following, and that is: reproduce the work, prepare derivative
works, perform the work publicly, display the work publicly, or distribute copies or
license someone else to distribute copies. Basically, anything you can do with the work.
A few notes to keep in mind: remember that reproduction does not just mean physical copying.
Downloading a PDF copy of something is reproducing. Just to keep in mind. Preparing derivative works means,
for example, that you can’t write the next Harry Potter book even if you make
up a new story and don’t copy any of the words from the previous book. Using the same
characters and concepts is a derivative work. Performing plays, showing movies. For example,
we have a DVD we recently bought for the university called “Escape Fire.” And we did
buy, in addition to just buying a copy of the DVD, we did buy the licensing rights for performance,
because that is a copyrightable right. I’m sure you’ve all seen the disclaimers on
movies to start with. And you can transfer ownership or lease these rights for distribution.
Okay, it should be noted that publication status and availability does not change these
rights. So what this means is that unpublished works are still protected by copyright. And
on the other hand, just because a work is freely available on the internet, for example, that does
not means that it is no longer protected by copyright. And we’ll get into that a little
more later. Another important exception to who owns the copyright is the concept of works
made for hire. What this means is that if you create something in the course of your
employment at an institution or if you’re commissioned to create a work, the employer
who paid you to do that may very well be the one to hold the copyright. Now an important
exception this is, there’s something that’s often referred to as the teacher’s exception.
Rosalind Franklin, like many institutions, chooses to forgo this right in some instances
for scholarly works, such as journal articles or textbooks you may publish. That’s pretty
common, and if you want more information about this, the information about this specific
policy that refers to this is up there. So now we’re going to briefly discuss copyright
history, just because I think it’s important to understand in order to help frame our thinking
about it today. So our copyright laws here in the U.S. have their roots in British law,
dating back to when — oops, did not mean to do that — dating back to when the U.S. was
still a British colony. It arose in response to an acute need to instill some control over
creative works, because before this statue, called the Statute of Anne, there was nothing
to stop a printer from printing up their own copies of a popular book and paying the author
nothing. So British Parliament realized that authors needed some sort of incentive to create
works, so they devised a system granting the creator of a work exclusive right to that
work for a limited amount of time. And the Statue of Anne is a great read, it’s full
of all sorts of, you know, “If it please your majesty,” and really flowery language,
but what it gets at is that if you create a work, you have the right to it for a limited
amount of time. Now this is important to understand because it really, at this point, gets back
to the philosophy behind copyright. That is, it’s supposed to be a given that a work
will eventually pass into the public domain, for all to benefit from and enjoy. People
tend to think of copyright as being about protecting authors’ rights, but it was originally
about, and still sort of is supposed to be about, incentivizing creativity, and I think
that’s an important point to keep in mind when you think about what copyright law is
for. Copyright as it stands now in the U.S., the protection stands at that you own the
copyright for the life of the author plus 70 years, for things created by a single author.
And for things created by a corporation or not one person, it’s 120 years from the
date of creation. So obviously the term of copyright has been extended many times over
the years, but eventually things are supposed to pass to the public domain. In fact, the
copyright term was recently extended in the mid-1990s. I wonder if anyone watching this
knows why. The answer, what drove that change, the answer was the Disney Corporation, because
Mickey Mouse was about to pass into the public domain, and Sonny Bono, one of his most famous
pieces of legislation was to extend the copyright term. So that’s pretty interesting. Now
that we’ve discussed what copyright is and where it comes from, it’s time to discuss
the concept of fair use. So we have these copyright laws granting authors these works, so what
is fair use? Well, fair use is one of the ways we can be in compliance with copyright
law. There are of course other ways to do this, because if you’re the author and you
own the copyright to a work, people can pay you to use it, you can grant permission, things
like that. But as you will notice as we go forth, the law hasn’t kept up with technology
and technological changes, so we’re going to talk about fair use pretty heavily because
it’s probably going to be what we use in most instances here at the university to remain
copyright compliant. And fair use to me is what makes copyright law so interesting. It’s
what makes it so maddening to others. We’re used to laws being extremely black and white — because they’re laws, after all — but copyright is different because it has a lot of gray
areas. And what’s even more unusual is that it’s intentionally designed to have these
gray areas. I think there’s an old legal saying about how hard a typical case is makes
bad law. Well, I don’t know if this is bad law, but it’s a similar tricky issue. It
was realized very early on that attempting to establish hard and fast rules in regard
to copyright was a bad idea. Without allowing for some fair uses, we wouldn’t be able
to, for example, write critiques or reviews of sources that briefly quote it, things like
that. So laws that establish limitations on copyright law, the most notable of which is
the doctrine of fair use, came about. So what fair use is, it’s an aspect of the law that
allows you to use copyrighted material in within certain limitations without having
to seek permission. Remember, to use fair use is compliance with copyright law, so it
is compliant, but to use it you don’t have to seek permission to use it and the publisher
or copyright holder cannot tell you “no” if your uses are within fair use. Copyright
laws had this concept of fair use for a long time, but 1976, Congress added four factors
of fair use based on what the courts had to say about the concept of fair use to that
time. And these tools were very helpful. So we’re going to talk about those now. But
it’s important to remember that there are no absolute criteria for determining whether
or not a proposed use of a work qualifies as fair. And this gets into the four factors
again. This is the tool I’m trying to get at here. This is the tool they’ve given
us for determining fair use, and it’s all we have. If you’re looking for absolute
guidelines, again that’s the maddening part of copyright and fair use: that’s not how
it works. So this is what we have for determining fair use, these four factors. The idea is
that the greater the strength with which a proposed use of a copyrighted work can address
each factor, the more likely it is to be considered fair. You don’t have to address all four
factors, but again, the greater the strength with which your proposed use can address each
one, the more likely the use will be seen as fair. Outside of traditionally accepted
safe harbor limits, which we’ll discuss in a minute, again there’s no absolute criteria.
What we’re supposed to do, for each instance we’re supposed to apply the four factors
of fair use and make a decision on a case-by-case basis, and that’s why Congress gave us these
four factors as guidance to help us determine whether or not a proposed use of a copyrighted work
we’re considering is fair. So here are the four factors for determining when a proposed — or if a proposed — use of a copyrighted work is fair, and if it therefore falls within
the limitations of copyright law: The proposed character and use of the work, including whether
such use is of a commercial nature or is for nonprofit educational purposes; the nature
of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and the effect of the use on the potential market for the value of the
copyrighted work. Now of course we’re going to go through each one. The first factor,
this is probably the biggest one. In determining whether or not your use is fair, you have
to consider the purpose and character of the use you are proposing, including whether such
use is of a commercial nature or in nonprofit education. Traditionally, now this is good
because nonprofit education, we score high here, because it’s mentioned specifically
in this factor. Traditionally the courts have been more willing to view uses in nonprofit
education, they’ve been more willing to view those uses as fair than they have been
to view uses in the profit-based world. This is obviously great for what we do here, but
it’s important to mention that this concept occasionally gets misinterpreted. It does
not give us free reign to do whatever we want with copyrighted material. There have been
high-profile court cases involving institutions that push this concept of fair use too far.
And while nonprofit education does give us a lot more leeway in our use with copyrighted
materials than a for-profit entity might enjoy, it’s important to mention that it’s not
a blanket exception from copyright law. It just means that the courts have been traditionally more
likely to find our interactions with copyrighted material to be fair than similar instances
in the for-profit arena. It does not give us license to claim fair use with any use
of copyrighted materials; it still has to be reasonable and still has to meet most,
if not all, of the four factors for determining fair use. I also want to mention the concept
of transformative use. This is something courts have traditionally added to the interpretation
of this factor, and it’s worth understanding. Traditionally courts have been more likely
to see a use as fair if it transforms the copyrighted material and uses it for a different purpose.
I have a couple examples I’d like to share to help illustrate this. A great example of
transformative use would be if you were in a classroom setting and you were showing a
clip from the TV show “ER.” So say you showed this clip from “ER” and you were
showing it to students to demonstrate the fact that medical procedures are often shown
incorrectly on television and they change the technique of the procedure for dramatic
effect. I’ve read stories; we know this really happens. So you’re showing it to
students as basically an example of what not to do and how people who watch entertainment
may not be receiving real information. So what was the original purpose of “ER”? It’s
a TV show; that clip was recorded to entertain, correct? So when you’re showing it to your
students, you’re showing it for educational purposes, not for entertainment. That’s
transformative use. You’re taking something that was designed to entertain and you’re
using it for education. Another example: a few years back, there was a very large comprehensive
book published about the band the Grateful Dead. And one of the components of this book
was that there was some reproductions of some posters that had been designed to advertise
concerts they had done many years in the past. The original designer of those posters sued
the publisher of the book, claiming copyright infringement, since they were reproducing
his work without permission. But what the courts found was that even though they were
reproducing these posters and in fact reproducing the entirety of the poster — so that would
fail the third factor of fair use, which we will get to — they still found this to be fair
use because of the transformative nature of the use. The posters had originally been designed
to promote a show, and they were now being presented as historical artifacts for further
information. The courts found this use to be transformative. So I hope those two examples
kind of illustrate this concept. It takes a while to get your head around all this.
So on to the second factor: the nature of the copyrighted work. Is the copyrighted work
something creative, or is the content largely factual? Again going back to the beginning,
facts cannot be copyrighted, so creative works usually enjoy more protection under copyright
law, so it tends to be harder to claim fair use unless your use is transformative, like
the previous examples we just discussed. Again this goes back to the fact that facts can’t
be copyrighted, so if the work you’re planning to use is less creative and largely factual,
your use will more likely be seen as fair. Factor number 3 is the amount of substantiality
of the portion used in relation to the copyrighted work as a whole. This is one that most people
kind of intuitively get. How much of a work are you planning to use under your claim of
fair use? This factor is why we can’t, for example, copy large portions of textbooks.
You’d be using too much of the work without permission. And keep in mind that this factor
specifically mentions the portion in relation to the whole work. Is one chapter too much?
Well, in a 10-chapter book, depending on other factors, maybe not. But in a 3-chapter book,
it probably is. Another concept that often comes up with this factor is the concept of
the “heart” of the work, and what this means is that sometimes even a small portion,
even if you’re only taking a small portion of a work, it may not be allowable under fair
use if it could be argued that that portion is really the “heart” of the work, kind
of like the main point. And this third factor dovetails nicely into the fourth factor: the
effect of the use upon the potential market for or value of the copyrighted work. The
third and fourth factors really go together. You can’t take too much of a copyrighted
work without permission, and you especially can’t do it if doing so could impact the
potential market for the work. This is another reason we can’t copy large amounts of textbooks.
It’s not just that we’re taking too much of the work without permission, because why
would you want to copy or post several chapters from a textbook in the first place, for example?
So the students wouldn’t have to buy the book, right? Why are textbooks published?
To be sold to students. This is why Kinko’s and Georgia Tech have respectively gotten
in trouble for copying large portions of textbooks. It impacted the potential market value and
it meant that fewer students were buying the books. So it’s an important thing to keep
in mind when you’re considering fair use. If you’re doing the copying so that students
won’t have to buy the book, it’s probably not fair use, unless the amount you’re taking
is so small that it wouldn’t be reasonable to expect students to buy the book just for
that. So those are the four factors of fair use. Now despite these four factors, in 1976
— 1976 was a really busy year for copyright, as you can see — some guidelines were drafted
by a committee with representation from publishers in education, although actually not higher
education specifically, since people were still howling for some sort of guidance in
what was acceptable under fair use. It was like, “Okay, we know fair use, we know these
four factors. Give us something to go on. What’s going to be considered fair?” So
these guidelines were drafted. Now it’s important to keep in mind a few things before
we get into these guidelines. They were written in 1976, so they were written specifically
with face-to-face education in mind only. So trying to apply these guidelines in the
online environment gets a little trickier. Over the years these guidelines were copied
into the U.S. Code, and this means that most legal entities are comfortable with accepting
them as safe harbor limits. Now to be clear, it says right at the top of the committee’s
findings that there may be instances in which copying which does not fall within these guidelines
stated below may nonetheless be permitted under the criteria for fair use. So I want
everyone to understand these guidelines are just that: they’re guidelines; they’re
not hard and fast outer limits as to the maximum of what’s considered fair use. But on the
flip side of that, these have been accepted over the years; if you’re within these guidelines,
your use is usually going to be considered fair. So, first of the safe harbor limits:
single copies for teachers. So when you’re preparing for lessons, things like that, it’s
usually acceptable for you to copy a chapter from a book, single articles, single charts,
graphs, diagrams from articles, books, things like that. So when you sometimes hear that
it’s acceptable to use one image from a journal article, one image out of a book,
this is where that comes from. Next one: multiple copies for classroom use. So what this is
starting to get into is, yes, you can hand things out to your students. We find this acceptable,
provided it meets all of the limiting criteria that is part of the next section, which we’re
going to talk about. And these limiting criteria are that you can’t do the copying in order
to create or replace an anthology. Again, this kind of gets back to doing it so that
students don’t have to buy something. You can’t copy works that are intended to be
consumable. So what that means is that works like test prep books where you go through
and do exams, those Scantron booklets we used to use that you have to fill in to take tests,
anything that’s designed to be consumed as part of their being a product, you can’t
copy to avoid that. And the copying shall not substitute for the purchase of a book.
You can see they’re concerned there. No one can tell you you have to do it, and if
you’re doing it with the same item over and over again and claiming fair use, eventually
you’re really supposed to pay licensing for that item. So you can’t claim fair use
using the same article over and over again for 20 years. And this is an important thing.
No charge shall be made to the student beyond the actual cost of the photocopying. This
is, when I mentioned Kinko’s before, this is specifically what got them in trouble in
the mid-90s. They were copying and preparing large course packs for students with tons
of copywritten material, and they were charging for them at a profit and making money. So
it’s one thing if you’re copying material under fair use and providing it to students;
that’s okay. But if you’re not paying the publishers for it and you’re making
a profit on top of it, that is a big no-no, as you might understand. Okay, so…let’s
see, where am I? Okay, so if you have any questions about that, let me know, but that
gives you at least some general guidance about the amount that’s within safe harbor limits,
pretty much in most instances. So now we’re going to move on to a quick word about attribution.
Most faculty members are of course familiar with this concept, but the reason I’m bringing
it up today is because we’ve been getting some student questions lately, and it seems
like they’re not always clear on the concept, so it’s worth talking about what it is and
how it’s separate from copyright. I’ve spoken with a lot of students who think that
you can’t violate copyright laws as long as you provide attribution. And that obviously
is not true. I’ve also had students ask me if they have to provide attribution when
citing a source that’s not a copyright violation, or if there’s ever a time when it’s acceptable
not to provide attribution. And the answer, of course, is that providing attribution doesn’t
do anything to satisfy copyright requirements because they’re two completely separate
issues, and one should always provide attribution because if you use the work of another without
providing attribution, it’s plagiarism, plain and simple. So there’s never an instance,
it doesn’t matter whether the work is copywritten or not, you always need to provide attribution,
and not providing attribution for something is plagiarism. So a quick mention about that.
So the 1976 guidelines we were discussing, those committee guidelines with the safe harbor
limits, those are the newest official guidelines we have. This is sometimes problematic. Our
laws simply have not yet been updated to reflect all these technological changes like online
education, the internet, and things like that. So applying these guidelines of fair use in
the online environment is just a bit riskier and trickier these days, and not as clear-cut.
What I can tell you is that current thinking and current attempts to stay compliant — more
recent guidelines like this one we’re going to discuss in a second here — tend to feel
that compliance can be met by attempting to meet the guidelines proposed for face-to-face
education as closely as possible in the online environment. So remember those 1976 guidelines
for safe harbor limits, what’s an acceptable use of copywritten information in face-to-face
education. Current thinking seems to be that the closer you mimic face-to-face education
in the online environment, the more likely your use is going to be seen as fair. So for
example, this is really recent, it’s from January 2012. This is the Association of Research
Libraries’ code of best practices for fair use in academic and research libraries. What
they basically say is, yes, you can post things in online environments like D2L with distance
education, you can continue to post copywritten material like you would in face-to-face education;
you just have to take reasonable precautions to limit it to just the students who are in
that course. And of course, use reasonable portions of things. So the availability of
the materials should be coextensive for the duration of the course, so they only have
access to it during the course, just like they would in face-to-face education. Only
eligible students should be able to see it, just like if somebody was enrolled in a face-to-face course. Oops, that’s funny, we’re going the wrong way now. Okay. Materials should
only be available only when and to the extent that there’s a clear, articulable nexus
between the instructor’s purpose. So what that means is, only use what you need. If
you’re going to try to put up three digitized chapters, just in case the students need it,
but what you really only need is just a couple sections from this part, a couple sections
from this part, just put up what you need. In general, the less you use, the more likely
your use is going to be seen as fair. Remember that third factor of fair use: the amount
and substantiality of the portion. Libraries will provide instructions with useful information
about fair use. And appropriate number of students with simultaneous access. Students
should be given information about their rights in copyright. We’ll talk about that in a
second. And full attribution in the form accepted in the field should be provided for each work.
So this is the current thinking of what you’re trying to do. So in other words, if you’re
posting it in the online environment, great, just try to limit it to face-to-face education
as much as possible. Only students enrolled in the class, they only have access to the
materials during the class or, if you want to get even more safe, during that portion
of the class. Things like, if you’re posting a video clip or other material that could
be posted as streaming instead of downloadable, that’s much safer. This is kind of the concept
that this is getting at. Okay, I mentioned the copyright notice that can be helpful.
It says you should give copyright information when you’re giving copyrighted material.
One easy way to do this — this is what Brett does, for example — he just posts this disclaimer
in the syllabus to his classes. I’m not going to go through and read it, but this
is available to you if you want. You could just post something similar like this in your
syllabus. That would go a long way to explain to your students that some of this material
may be copyrighted. So lecture capture and posting’s another tricky area. If you’re
putting together a lecture that’s going to be recorded, it’s your responsibility
to ensure that nothing in that lecture will violate copyright law if posted. Remember
that the rules change once you’re recording something and posting it. It’s no longer
strictly face-to-face education, or even mimicking face-to-face education in the online environment,
if it’s going to be available to a wider audience. You have to consider who will be
able to access it, how long they’ll be able to access it, can they download it or only
stream it, etc. Just like the ARL guidelines we went through, the more closely you mimic
face-to-face education, the more likely you can claim protection under fair use. If you’re
giving a presentation that can be recorded and posted online and you’re really not
sure if you’re comfortable with an image you’re using or something like that, you
can take the image out of the recorded version of your presentation. That’s one good technique.
This can be done in a variety of ways. What Brett does in his class, for example, is he
prepares a classroom version, things he feels comfortable showing in the face-to-face environment,
and then he prepares a copyright-clean version for posting, where it just either doesn’t
have the copyrighted information or maybe it just has a link to it instead of actually
showing it. And we’ll get into linking a little later. You can also ask whoever’s
doing the recording to only record audio for certain slides and maybe black out the copyrighted
information during that portion, or you can go back and do this in the editing process.
And again with linking: like I said, you can just link the resource so the audience can
look it up themselves if they want to see it, but then you’re not actually showing
the copywritten material. Remember the factors for determining fair use and the guidelines
for mimicking face-to-face education when you do this. So, like, if a recorded lecture
is posted in a password-protected environment like D2L, it’s only available to students
enrolled in a certain class. That gets pretty close to face-to-face education, so you could
probably use more copyrighted material like you would in an in-person presentation. So
this is not to say that you could never record and post something for a wider audience, something
that has less restrictions on who can access it; you just might have to be a bit more careful
with the content you use. So why is this important? Because complying with copyright and fair
use is the responsibility of each individual here at the university. So why is that? Well,
you’re the one that found the copyrighted material you wish to use, so you know what
rights you have, you know what permissions you’ve sought, and you know what fair use
analysis you’ve applied. So that’s the take-home message here. In the nonprofit educational
environment, the law provides us with a lot of flexibility, but we still have to do our
diligence in applying fair use. In the copyright world, individuals are liable and responsible.
This is not an institutional-level thing, unless it’s something the institution is
doing on a whole. And remember, fair use is just one form of being copyright-compliant.
You can always ask a publisher for permission to use something, or you can check the permissions
of a resource. Sometimes the permissions they grant are pretty generous, and a lot of databases
you’re going to use make this information pretty readily available. Speaking of looking
up licenses and things like that, here I’ve pasted this nice table that I like a lot,
that I got from the Know Your Copy Rights guide. Now I’m not using the whole booklet,
but I am using the whole table, I’m using the whole image. So is this use fair? Do I
have to apply the four factors here? Well, in this case I’m positive that my use isn’t
a copyright violation. How do I know that? They told me. Here’s their licensing agreement on the last page. They use a Creative Commons license, and what this says is that as long
as my use is not for profit and as long as I’m providing attribution — which I’m
doing; I’m telling you where I got it from — I am free to make copies of this and distribute
it. So that’s an example of just checking the rights. And this little table, by the
way, is really handy. It gives you examples for proposed use, and when it might be or
might not be acceptable to use things under fair use, like public domain works, works
where you’re the author, provided you still own the copyright, open access works, things
like that. And again, like all the materials I’m citing and referencing, it’s available on my
copyright page. Okay, moving on. Another thing you can do to help with copyright compliance:
we’re going to discuss a few of our resources, a few other tips that can help. So one is
to use library resources for materials whenever possible. When I did the in-person presentation,
this was a big piece of information I was really happy about. Many of the databases
we have, some of these large databases we subscribe to that contain medical images,
contain the full text of journals, contain e-book content, contain the e-book images,
things like that — many of them are licensed for use with presentations. This is part of
the fee we pay to the publishers to use these. Part of our subscription to the databases
means not only can we access this content, we can use it in presentations and put it
in our PowerPoint slides and things like that. That’s part of what we pay for. Because
again, remember, fair use is only one form of being copyright-compliant. Another is to
pay licensing fees, and in this case we pay licensing fees to use the content, so it is
completely legal for us to do so. If you want help selecting a resource or want to double-check
what rights you have, always feel free to ask any of the librarians. We’ll be happy
to double-check this for you. But I just want everyone to be aware that we have many good
resources with a lot of good material for you to use, and material that we’re licensed
to use in that way. Another thing I like about that little copyright chart I went back to
a second ago, it brings me to another one of my tricks that I like for remaining copyright-compliant.
When you’re questioning whether or not you can post web-based material online, when in
doubt, link to it. That’s all you need to do. Remember when I said that just because
something is freely available on the internet doesn’t mean it’s not subject to copyright
protection, when I was talking about unpublished works and availability? Well, you might say,
“Well, yeah, okay fine, maybe it’s still copyrighted, but they put it up on the internet
for free. They obviously want me to use it.” But remember, there can be other forms of
currency besides money and payment. What about hits? This is an interesting concept. Sites
that generate a lot of hits can be sold, so even if information is available on an internet
site and it’s free, they still may want you to actually click the link instead of
pasting the material everywhere, because they may be trying to generate hits. And it’s
their right to do that, the same way it’s the right of a publisher to publish a book.
So what I’m getting at here is, what’s a really good “get out of copyright free”
solution? Link to it! That way, you’re not copying material; you’re merely telling
students and others how to go and get it on their own. You can’t possibly violate copyright
with a link, because you’re not providing any copyrighted material; you’re just providing
the location. Remember I also brought this up with lectures that are being recorded and
posted. If you apply the four factors of fair use for a lecture that’s being posted on
the internet, and you decide you’re not comfortable having some of the, maybe the
images, things like that, in there, one possible good solution is instead of posting the images,
just post a link. Say, you know, “For those in the audience, here’s where I got it.
If you want to see it, maybe go view it on your own.” It’s a really easy way to be
copyright-compliant. There’s another thing I like here. The same holds true for paid
resources. Instead of posting it for students, provide instructions and tell them how to
access it. And not only does this solve any copyright issues, it helps teach our students
information literacy. They’re going to have to know how to access and use this type of
information during their clinical careers, so I think of it this way: I think we’re
actually not doing them any favors by not teaching them how to do this. The library
will be very happy to provide instructions for accessing resources that you can just
cut and paste for the students, and providing persistent links when possible. I’ve heard
that some think of this as a hindrance or think it adds unnecessary steps for the students
to go get the material. But it can be useful to view this as teaching our students about
accessing and using scholarly resources. Remember, you don’t have to do this with everything,
maybe just with things that you fear will fail the fair use test. But that’s a nice
way you can think of it, as teaching information literacy instead of just putting all the material
up online and worrying about if you’re violating copyright. If it’s something we
have in our paid resources, just give the students instructions for accessing it, and
then they’ll get used to using library resources. It’s a good solution. So speaking of testing
things for fair use, another tool I like is the Copyright Basics: Fair Use checklist from
the Copyright Clearance Center. This can be really helpful in performing your fair use
assessment and determining if what you’re thinking of doing is indeed fair use. There’s
another reason as well. In addition to helping you sort out your thoughts in going through
the fair use process, filling out a checklist like this shows that you’ve made a good
faith effort to apply fair use. And this goes a long way in providing protection to those
in the nonprofit educational environment from damages, because in the court rulings, there’s
a history that nonprofit educators, if you can demonstrate that you were acting in good
faith and tried to apply the factors of fair use and made a good faith determination, you
actually can’t be held liable for anything aside from actual lost revenue, in terms of
damages. What that means is that the publisher would actually have to come forward and be
able to demonstrate that your use of their copyrighted material cost them the sale of
50 or 100 textbooks or something like that. They wouldn’t be able to ask for or be awarded
additional damages. If you want to act in good faith, fill one of these out and file
it away when you plan to use copyrighted information under fair use. And then in terms of doing
your diligence and your good faith analysis, you just did. File it away, and then if anyone
ever questions your use, you will have something that can demonstrate you made a good faith
attempt to apply the four factors of fair use. And then another nice thing about this checklist
is that the Copyright Clearance Center is a group that works for publishers collecting
fees, so the tool is made by the publishers, which is another reason it’s even stronger:
you’re using the publisher’s own tool to determine fair use. So if you can satisfy
the requirements on this list, you should be in really good standing. So that’s really
about it. Here are the references. Again, pretty much everything is linked on my copyright
information website on the library webpage, except maybe not every part of the U.S. Code,
but I don’t think people are really going to be reading that. And here are the rest
of them. And again, if you have questions, please feel free to contact me and I’ll
be happy to answer any questions you have. Thank you very much for watching.