Copyright, Fair Use, and Electronic Materials: Three Tips

Recent intellectual property rights lawsuits against institutions of higher education -- such as the lawsuit over video streaming at UCLA or the lawsuit against Georgia State University over e-reserves -- make two things clear: how little is understood on campus about what "fair use" entails, and how critical it is to plan for risk mitigation as your campus community increasingly makes use of digital content.

To help unpack the complications involved, we turned to experts Steven McDonald, general counsel for the Rhode Island School of Design (RISD), and Kevin Smith, director of scholarly communications for Duke University's Perkins Library.

Smith and McDonald offer their reflections on the Georgia State case and provide three tips for addressing fair use at your institution proactively rather than reactively.

COPYRIGHT AND FAIR USE: COMPLIANCE GUIDELINES FOR FACULTY

Reduce your legal liability by better understanding how to interpret and apply copyright law to teaching, research, and scholarship. Join Steven McDonald, Kevin Smith, and Academic Impressions online in February 2013 for this two-part webcast series; our expert instructors will walk you through many sample scenarios.

The Georgia State University Case: Takeaways

Of the 99 instances of infringement cited against Georgia State University in the plaintiff's suit, 25 were withdrawn and one added before trial. Of the 76 excerpts that allegedly constituted copyright infringement, the judge decided that 71 were instances of fair use -- that the institution had acted in good faith -- and only 5 were infringements.

The Georgia State University case can be instructive to institutions in two ways:

  • The case offers a quantifiable benchmark for what might be considered "fair use"
  • The case demonstrates how important -- and how effective in protecting your institution -- it is to establish a clear fair use policy; Georgia State University successfully made the defense that the institution had acted in good faith to ensure that e-reserve materials were excerpted only in ways that constituted fair use

"But don't assume that the case is over," McDonald comments, "and don't assume that it applies to your jurisdiction. This case will influence litigation, but is not necessariluy the last word."

What McDonald finds especially interesting about the judge's decision is that "the ruling takes what is intended to be a very ambiguous, amorphous test that allows courts to do the right thing in each individual case (while leaving everyone wondering what exactly that is going to be), and turns it into a test that is simple to apply in cases of excerpts from books in a digital format -- one chapter, or 10 percent of the text. The ruling carves out this safe harbor. That safe harbor is probably not far off where institutions would set the mark in most cases, so there are advantages to having this certainty. But this ruling also means losing the flexibility that fair use was meant to allow."

"So there are arguments over whether the trade-off is worth it or not," McDonald adds, "but if this were to become law elsewhere, it would certainly be a lot easier for faculty and staff across campus to apply."

Smith cautions, "We have precedents that much more -- even an entire work -- might be subject to fair use. So we need to wait and see where this case goes."

When asked what institutions should take away from the ruling, both McDonald and Smith agree that what is most important is that if your institution has not already defined a clear and specific fair use policy, doing so is critical.

McDonald and Smith offer these three tips for protecting your institution and its faculty and staff:

  • Establish a campus-wide fair use policy
  • Read and negotiate (whenever possible) the licenses for digital content
  • Take steps to educate your campus about copyright issues for digital content and about your institution's fair use policy

Here is what they recommend.

1. Establish a Campus-Wide Fair Use Policy

"Fair use is hotly contested," Smith reminds us. "People disagree strongly as to what is fair use. And even though education is mentioned as one of the paradigmatic areas where fair use applies, the specifics are uncertain." Smith and McDonald emphasize that the institution will have reduced liability if it can show that it has made a "good faith" attempt to define fair use for its campus.

The recent ruling on the suit against Georgia State University bears this out. McDonald explains: "If you are a nonprofit educational institution or an agent of one, and you do something believing in good faith that it is fair use, then the only thing the court can do is say 'don't do that again,' if the court agrees with you that the action was taken in good faith. If you can credibly make that argument, then there are no statutory damages."

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"Good faith" means two things: subjective honesty, meaning that you can demonstrate that you have sincerely and intentionally considered what situations fall under fair use and that you have done your best to protect the copyright owner's interests, and objective reasonableness, meaning that an objective outside party -- a judge -- would conclude that you have made a reasonable attempt to apply fair use guidelines."
Steven McDonald, RISD

Toward this end, Smith suggests establishing clear policies or published guidelines that will empower faculty with criteria for making a reasonable and informed decision over whether their intended use of intellectual property is fair use.

2. Read and Negotiate the Licenses

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"In a digital world, more of the materials we share and more of the technologies we use to share those materials require licenses. Ubiquitously, we click "Accept" or "I agree" on those licenses without thought. Yet they do restrict and determine how we can and cannot use electronic materials."
Kevin Smith, Duke University

Smith notes that the growing "thicket of licenses" that allow us access to content can create difficulties later on. Notably, a corporate license can restrict use of electronic content to a far greater degree than the fair use clause in copyright law. Smith cites the example of a database licensed to the academic library. The database contains images from news sources, which students may want to incorporate in their presentations or their papers. The license for the database (which was not developed with higher education specifically in mind) restricts replication of the images to "editorial uses." In a case like this, Smith notes, the academic library has to be very clear on how it interprets editorial uses: "Is it acceptable to place an image in a PowerPoint and show it to your class? Probably. But can you post it to the class blog? Probably not."

Smith and McDonald offer this advice for faculty and staff signing digital licenses:

  • Take the time to read the license, carefully. "Know what you're getting into," McDonald advises. "Make sure you do approve of the restrictions. If you don't approve -- if these restrictions won't work for you -- say 'no.' The more academic institutions say 'no,' the more corporate entities will listen."
  • Negotiate the licenses.

Smith notes that some licenses will not be possible to negotiate; it's unlikely, for instance, that you will be able to negotiate with Apple for modifications to the 30-page contract for iTunes. But in many licenses for more specialized educational uses of electronic materials, it is often possible to negotiate the restrictions before signing. "You never get what you don't ask for," Smith remarks.

3. Educate Your Campus

Smith and McDonald note that a series of popular but false assumptions about fair use persist among many faculty, staff, and students, including:

  • If something is technically possible, it must be legal
  • If my motives are pure and the use is for the good of students, that use must be legal

"So many people assume that if they right-click an image and save it to the desktop, that action must be legal," McDonald notes, "because the people who built the Internet surely built in the necessary restrictions. That's like assuming that just because I can drive my car at one hundred miles per hour, it must be acceptable to do so." Smith adds, "As for motives, pure motives do not immunize you from liability. They may possibly help cut down on damages, but they won't prevent a lawsuit."

It's critical that you act to counter these assumptions and educate your campus about your institution's policy on fair use. "Don't assume your faculty and staff will intuit the policy and gather it up by osmosis," McDonald remarks.

Here is a suggested approach:

  • Messaging: First, communicate the message that your faculty both use copyrighted material and create copyrighted material -- this allows you to reframe discussions of fair use as relevant to everyone's property; "not only does the technology make it easy for you to infringe other people's copyrights," McDonald notes, "it makes it easier for others to infringe your copyright."
  • Focus on availability: Smith notes that it is rare to get high attendance at a "learn about copyright" workshop, but that when a particular faculty or staff member has a question related to fair use, that question will be urgent; make your availability as a resource known, and respond to questions speedily.
  • Look for opportunities to teach about intellectual property in classrooms: for example, talk to graduate students as they approach their dissertation or the publication of their first article, or undergraduates studying film or photography as they produce work. All of these cases speak to members of your campus community at the time when intellectual copyright is most visibly at stake for them. "Students get it and have sharp questions," McDonald comments. "They are endlessly curious. And it's likely that a few faculty members will come to the class, too, and word will spread."
  • Walk through examples from their discipline. If you are speaking with photography students, discuss the landmark case that established whether photographs are copyrightable. If you are speaking with junior faculty, pull out an actual publishing contract and walk them through what its stipulations mean for them.
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"As long as you have clearly articulated guidelines to refer to, class-by-class or case-by-case copyright education with a hands-on, practical approach can see significant gains."
Steven McDonald, RISD

Finally, identify those occasions when you are likely to see high attendance from faculty, and make the most of them. For example, the introduction of a new learning technology or course management system is a good time to educate large numbers of faculty about copyright.

COPYRIGHT AND FAIR USE: COMPLIANCE GUIDELINES FOR FACULTY

Reduce your legal liability by better understanding how to interpret and apply copyright law to teaching, research, and scholarship. Join Steven McDonald, Kevin Smith, and Academic Impressions online in February 2013 for this two-part webcast series; our expert instructors will walk you through many sample scenarios.

In light of recent events, this article expands, revises, and updates some material from a September, 2011 article on copyright issues.