Did you know that most educators and librarians under-use fair use … and pay the price?
Do you know how to legally use works in a digital environment?
Is your institution taking full advantage of the various protections allowed it under copyright law?
Do you understand all of your license agreements?
Gretchen McCord is the not the only librarian/lawyer out there, but few — if any — others have her breadth and depth of experience. Not only has Gretchen worked closely with educational institutions and libraries of all types and sizes, but she brings to that work an extensive background of representing a range of clients in copyright, trademark, licensing, contract, and related matters. She has worked with creators and copyright owners of all sizes, from individual authors and artists to major corporations; and she has worked with users of protected works, from schools and libraries to entrepreneurs and local businesses to international companies. Her unusual experience uniquely positions her to assist your school, college, university, or library in understanding and taking full advantage of the rights afforded your institution by the law while also minimizing risk. Gretchen can help your institution to, among other things:
- Understand your rights and limitations using copyright-protected materials in digital environments such as course management systems, e-reserves, and online/distance learning
- Protect the institution’s copyrights
- Legally incorporate digital resources into the curriculum and classroom
- Better understand fair use and its application for your particular institution
- Provide a copyright audit that will
- assess how compliant your institution is with copyright law
- evaluate how well your institution’s policies and practices do and don’t support the institution’s mission and meet its daily needs
- identify areas of risk in current practices and policies
- identify areas in which your institution can benefit by taking greater advantage of its legal rights
- Assist with legal and policy issues in establishing and growing an institutional repository
- Ensure that you’re protecting your institution’s rights — including fair use — when negotiating licenses and other agreements with vendors, publishers, and others
- Establish policies and procedures addressing a variety of legal issues with mass digitization projects
- Advise faculty and others on publishing without giving away their and the institution’s rights
Common Myths About Copyright You Should Know About
The fair use analysis is very fact specific and must be made on a case-by-case basis. The analysis must take into account the following four factors, only one of which considers whether the use is for educational purposes:
- Purpose and character of the use, including whether use is for non-profit educational purposes or commercial purposes, and whether the work is transformative in purpose or character. A transformative use is one that uses the work for a different purpose than, or in a way that is different in character from, the way in which the work was originally used.
- Nature of the work used, which asks whether the work is more factual in nature (favoring fair use) or more creative (disfavoring fair use). If the work is unpublished, this factor will most likely disfavor fair use.
- Amount and substantiality of the portion being used, which considers both how much of and what particular portion of the work you need to use to achieve your purpose.
- Effect of the use on the potential market for the work, which asks to what extent your use is likely to harm the market for the work, regardless of whether you actually made money and regardless of whether the owner actually lost money.
Learn more from Bare Bones of Fair Use. The ultimate decision of whether to use a work is a risk-assessment decision, based on a combination of legal, pragmatic, and cultural (your institution’s culture) considerations.
No law or regulation specifically governs this situation. Regardless of what type or level of class the website serves, you must depend on the doctrine of fair use, and fair use must be analyzed on a case-by-case basis, taking into account the four fair use factors dictated by the Copyright Act. For more on fair use, see Bare Bones of Fair Use. The ultimate decision of whether to use a work is a risk-assessment decision, based on a combination of legal, pragmatic, and cultural (your institution’s culture) considerations.
If you copy from a work but make changes to what you’ve copied, you have still copied! In addition to the copyright owner’s right to reproduce the work, you may also be infringing her right to create derivatives (works based on the original).
Likewise, copying only a small portion of a work does not move the copying out from under the realm of infringement. The amount you copy plays a role in the fair use analysis, but it is not determinative.
Although plagiarism often occurs together with copyright infringement, it is an issue of ethical behavior, not a legal issue. Citing something you quote is the “right” thing to do, and it can indicate that you are trying to “play by the rules,” but copyright law does not require citing a quoted work, and citing a work does not in and of itself have legal implications.
When a work is created by an employee (as opposed to an independent contractor) acting in his or her line of employment, the employer is deemed to be the author and therefore the copyright owner. Academia has traditionally made an exception for faculty members, but this is only by institutional policy, not law, so it varies by institution; and this practice is changing, particularly in the context of distance education.
This is generally true, but with some limitations. Unless institutional policy says otherwise, the institution owns the rights under the work-made-for-hire doctrine in works created by employees (but not an independent contractors, such as adjunct instructors) acting in their role as employee. However, the institution may not claim ownership of works created by the employee when doing so is not part of the employment, even if the subject matter of the work relates to the person’s area of employment.
Assuming the institution owns the rights in a work, it is “free to benefit” from the work; however, if the work contains infringing content, the institution could be held liable for the infringement.
If you make a copy of a work, you potentially infringe the copyright in the work, regardless of the format or medium. However, the Copyright Act does allow digitizing print or audiovisual works in certain limited circumstances. Section 108(b) and (c) allow a library or archives to make copies for archival purposes with significant limitations. The TEACH Act allows making digital copies of either digital or analog works for purposes of use in distance education, but again, only under very limited circumstances. Section 121 allows making digital copies if the sole purpose is for use by the blind or otherwise disabled and other conditions are also met.