Friday, March 26, 2021

Fair Use Gone Viral: Predicting the Future of Copyright

Kenneth Crews

Copyright expert Kenneth D. Crews (Gipson Hoffman & Pancione) gave an ALA webinar on March 26 entitled "Fair Use Gone Viral: Predicting the Future of Copyright." Crews is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, Fourth Edition, which is available from ALA, Amazon, and other booksellers. My notes are below.

Update (03/292021): Archive access to Crews' webinar is available through WebEx.  The recording includes the chat log from the session, using the chat bubble on the left.

Why Copyright?

  • Legal rights of control of original works
  • Subject to exceptions & limitations

Practical Effect of Copyright: 

  • Grants rights to authors
  • Allows some use of the copyrights of others

A copyright interlude (this is normal)

  • Broad scope of works
  • Automatic copyright protection
  • Long duration
  • Broad scope of rights
  • Risks and penalties for infringement
  • Subject to limitations and exceptions

Why normal? This below is what we've been going through, so why does that normal above exist?

  • Lives disrupted
  • Work destabilized
  • Travel suspended
  • Family bonds strained
  • Human rights despair
  • Learning in (during) turmoil
  • Constitutional standards at risk
  • International relations frayed

 Where do we go next?

Any yet...?

  • Copyright in Congress:
    • CASE Act of 2020 - "Small Claims Court" - Our courts are part of Article 3 in the Constitution, but this Small Claims Court is outside of the legal system and resides in the Library of Congress.
    • Criminal penalties for video streaming - Really about large scale platforms.
    • Pre-1972 sound recordings - the law here has grown.
    • Music licensing - New set of licensing
    • Government works and the public domain - a new exception for copyright protection for faculty at the U.S. military academies.
    • Exceptions for Blind and visually impaired - new laws on this. The reason why Congress acted when it did on this is because of WIPO developed a treaty that is addressing this issue. That placed political pressure on its member countries.

Even in a world that seems upside-down, Congress continues to create new laws. 

Copyright and Online Education

  • The use issue: What governed specific uses?
    • Section 107: Fair Use
    • Section 110(2): Distance Education [Transmission in education]
    • Permission
    • Licenses: Institutional and Creative Commons
  • The ownership issue:  Who owns the finished work?
    • Creator of original work as copyright owner
    • Transfer of rights (e.g., to publishers)
    • Employers and "Work Made for Hire"

 We have things to figure out! 

Fair Use as an exception permits the uses of someone else's content under specific circumstances.

What is Fair Use?

  • Section 107 of the Copyright Act
  • Based on four factors:
    • Purpose 
    • Nature
    • Amount
    • Effect

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006) - related to a book about the Grateful Dead. It contains little miniature images of posters from the 1970s. DK publishing argued Fair Use and the Courts agreed. The Court worked through the four factors, including the third factor. Yes, it is the entire poster, but in a small scale. Maybe the whole thing in certain circumstances is fair use. Other courts have also ruled that the whole work can be allowed in certain circumstances.

Fair Use in Libraries

  • Google Books - 20 million books
  • HathiTrust - full books for search & disability access
  • Georgia State University - Electronic reserves for education

Far Use in Education

  • Classroom Guidelines (1976)
    • Negotiated amount by interested parties
    • narrow word count limits
    • no "anthologies"
    • no repeat use

Fair Use is supposed to flexible, which makes guidelines problematic. Guidelines are not law.

Fair Use and Education

  • Teaching "including multiple copies for classroom use"
  • Still subject to the four factors

Tresona Multimedia, LLC v. Burbank (CA) High School Vocal Music Association. 953 F.3rd 638 (9th Cir. 2020)

  • Sued not the school, but the music association.
  • Purpose: Nonprofit education & transformative
  • Nature: Creative work
  • Amount: Short clips; heart o the work
  • Effect of market: Transformative uses poses little harm

From the decision - "enhancing the educational experience of high school students."

Dr. Suess Enterprises v. ComicMix LLC, 983 F.3rd 443 (9th Cir. 2020)

Recreated the Dr. Suess books using Star Trek images.

Oh, the places you'll boldly go! (images)

  • Not Fair Use
  • Not a parody. Not transformative
  • Creative work.
  • Amount used is "substantial" and heat of the work
  • Non-transformative use that competes for some of the same market.

From the decision - "we conclude that Boldly did not make fair use of Go!."

Marano v. Metropolitan Museum of Art, 472 F.Supp.3d 76 (SDNY 2020)

The museum said they used the photograph to show how the musical instrument was used by the musician. The photographer say the photo as focusing on Eddie van Halen.

  • nonprofit and transformative
  • Creative work
  • entire work, but emphasis is on the historical context and museum artifact
  • Transformative use us unlikely to harm the market for the original photographs

New directions for Fair Use?

  • Return to the four factors
    • See the other side
  • Watch for the warning signs
    • Displacing purpose of the original
    • Competing for established markets
  • Develop a policy
    • Frequent or common uses
    • Different institutions will have different policies
    • Having a policy is good.  It keeps you current with developments. Demonstrates to the courts that you have thought about this.
  • Stay informed; stay flexible

Do we even need a (new)  normal?

  • A normal that is a slow transition.
  • A normal that is changing.
  • Fair Use
  • Section 108
  • Section 110
  • Public domain - this is richly valuable
  • Licensing & Creative Commons
  • New: Pre-1972 Sound Recordings - has new exceptions for non-commercial uses. It is a "nutty law" but has good stuff.
  • New: Small Claims

Question: Do courts focus more on Factors 1 and 4? Yes. The most important factor is where your evidence ways most heavily, and that is generally the first or fourth factor.  Do you have your facts right? 

Question: Copyright and online story time? A bunch of publishers at the start of the pandemic encouraged story time and use of their works.  Realistically the publishers were giving a license or permission.  Publishers will, at some point, want to withdraw their permission.  Could you apply Fair Use? Yes. Limited audience. Mission of the library. Make it a transformative use! Act our the story. Use only a portion of the book and not the whole thing. Encouraging people to purchase the book is okay.

1 comment:

Unknown said...

Great job on summarizing the webinar, thanks