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USE OF COPYRIGHTED MATERIALSIntro
| Liability | First
Steps | Rules of Thumb Four-Factor
Test | Permission We would all appreciate a clear,
crisp answer to that one, but far from clear and crisp, fair use is better described
as a shadowy territory whose boundaries are disputed, more so now that it includes
cyberspace than ever before. In a way, it's like a no-man's land. Enter at your
own risk. Why is it like this and does it have
to be this way? Is there no alternative to the vagueness of the "four factor
fair use analysis," to fear of lawsuits and frustration with uncertainty?
Maybe it is reasonable to simply throw up our hands and say, "What's the
use?" After all, many legal scholars, politicians, copyright owners and users
and their lawyers agree that fair use is so hard to
understand that it fails to provide effective guidance for the use of others'
works today. But the fact is, we really must understand and rely on it. So
wouldn't Guidelines help? Many people who think so recently gathered in Washington
to negotiate Guidelines for Educational Uses of Digital Works in a two-year-long
Conference on Fair Use ("CONFU"). For many,
the Guidelines that emerged satisfied the need for clarity; but for some, considerable
objections remained. Some CONFU participants and their constituents complained
that the Guidelines were too narrow; others that they were too broad; or unfounded
in the law; or too premature; or too long; or unclear; and so on. In the minds
of many, the Guidelines asked the right questions, but for some, they provided
the wrong answers. We have reviewed all the Guidelines
and have decided to take a different approach to protecting our component institutions
and our faculty, staff and students from the dangers of the no-man's land while
supporting our exercise of fair use rights. We call our approach "Rules of
Thumb" for the Fair Use of Copyrighted Materials. Like the Guidelines from
which they are in some cases derived, the Rules of Thumb are tailored to different
uses of others' works. But unlike the Guidelines, they are short, concise, and
easy to read. And they are part of a larger strategy
to meet our needs for permission when fair use is not enough; to reduce our need
for permission in the future by licensing comprehensive access to works; and to
take a more active role in the management of the copyrighted works created on
our campuses for the benefit of our university community. Copying,
modifying, displaying, performing or distributing another's work beyond the suggestions
of the Rules of Thumb may still be a fair use, so we'll use the four-factor fair
use test to determine that. If you are part of U.T. System, you may confer
with the Office of General Counsel or follow our
published procedures for making fair use determinations. If the use seems
risky or is clearly not a fair use, we'll try to make getting
permission as easy as possible.
Please
keep in mind that the information presented here is only general information.
True legal advice must be provided in the course of an attorney-client relationship
specifically with reference to all the facts of a particular situation. Such is
not the case here, so this information must not be relied on as a substitute for
obtaining legal advice from a licensed attorney.
Individual
liability for infringementBefore
you throw up your hands and say, "What's the use," consider your own
liability for copyright infringement. Individuals are liable for their own actions.
Copyright owners have sued and probably will continue to sue individuals. They
will probably sue the University too, but that may not insulate the individual
who took the allegedly infringing action from the full force of a lawsuit.
The
penalties for infringement
are very harsh: the court can award up to $150,000 for each separate act of
willful infringement. Willful infringement means that you knew you were infringing
and you did it anyway. Ignorance of the law, though, is no excuse. If you don't
know that you are infringing, you still will be liable for damages - only the
amount of the award will be affected. Then there are attorneys'
fees... There is one special
provision of the law that allows a court to refuse to award any damages at all
if it so chooses, even if the copying at issue was not a fair use. It is called
the good faith
fair use defense [17 USC 504(c)(2)]. It only applies if the
person who copied material reasonably believed that
what he or she did was a fair use - as would likely be the case if you followed
this Policy! If you qualify for this defense, it makes you a very poor prospect
for a lawsuit. On the other hand, if you disregard sound advice about fair use,
a court would be free to award the highest level of damages available. This makes
someone who ignores policies a handsome target for a lawsuit.
There
is another problem if you ignore our advice about fair use: The Texas Constitution
and statutes may limit our ability to defend individual employees and students,
but to the extent we can, U.T. System will defend you against a charge that your
use of another's works is an infringement so long as
you follow this Policy and abide by the terms of any licenses that affect your
rights to use others' works. If your activities violate these conditions, you
will be personally responsible for your own defense. In other words, if you do
not follow this Policy and any licenses that affect your rights to use others'
works, U.T. System will not defend you. You will be on your own. Using
Off-Campus CopyshopsYou might think that giving
your copying to a commercial (for-profit) copyshop would relieve you of liability
for infringement, but it may not: It would depend on - whether
your copying was fair use, and
- whether the copyshop
pays royalties.
Consider coursepacks: If
you would answer no to both questions above, using our Rules
of Thumb for coursepacks or the fair use test
to decide whether your copying would be fair use, then you could be liable for
infringement along with the copyshop! We advise against taking this risk. It would
be best to use copyshops that obtain permission and pay fees (i) for any part
of a coursepack that exceeds the U.T. System Rules of Thumb (on-campus shops)
or (ii) for every part of a coursepack, even if some of it would be fair use under
the Rules of Thumb (off-campus shops that comply with the law as it has been applied
to commercial copyshops).
Answer
these three questions to decide whether you need permission to use a copyrighted
work. 1. Is the work protected?Copyright
does not protect, this Policy does not apply to, and anyone may freely
use*: The
presence or absence of a copyright notice no longer carries the significance it
once did because the law no longer requires a notice. Older works published without
a notice may be in the public
domain, but for works created after March 1, 1989, absence of a notice means
virtually nothing. The rules for determining
whether a protected work is in the public domain are set out in chart form by
Lolly Gasaway. These rules
are complex and somewhat hard to describe, partly because they have changed many,
many times during the 20th century. The general rules (excluding anonymous works
and works for hire) can be sumarized as follows: - Any
work published on or before December 31, 1922 is now in the public
domain.
- Works published between
January 1, 1923 and December 31, 1978, inclusive, are protected for a term of
95 years from the date of publication, with the proper notice.
But,
if the work was published between 1923 and December 31, 1963, when there used
to be a (non-automatic) "renewal term," the copyright owner may not
have renewed the work. If he or she did not renew, the original term of protection
(28 years) would now be expired and these works will be in the public domain. - After
1978, the way we measure the term of protection changes. It is no longer related
to a date of publication, but rather runs for 70 years from the date the author
dies (called, "life of the author" plus 70 years). Further, publication
is irrelevant. Works are protected whether they are published or not.
- Finally,
those works that were created before December 31, 1978, but never published, are
now protected for the longer of life of the author plus 70 years or until December
31, 2002.
Remember that some works
are never protected at all! See the information at the beginning of this
section for those works. 2. If
the work is protected, do you wish to exercise one of the owner's
exclusive rights?
- Make a copy (reproduce)
- Use
a work as the basis for a new work (create a derivative work)
- Electronically
distribute or publish copies (distribute a work)
- Publicly
perform music, prose, poetry, a drama, or play a video or audio tape or a CD-ROM,
etc. (publicly perform a work)
- Publicly display
an image on a computer screen or otherwise (publicly display a work)
3.
Is your use exempt or excused from liability for infringement?If
an exemption does not excuse infringement and eliminate the need to ask permission
or pay fees to exercise the owner's rights, you need permission.
*
Even if all or part of a work is not protected by copyright law, it may be protected
by other laws. For example, you may need to consider rights of privacy and publicity,
ask permission to use a trade or service mark, or get a license to practice a
patented process or system, but discussion of these rights and interests is beyond
the scope of this Policy statement.
UT System has established Rules of
Thumb for the following uses of copyrighted works: Try
to stay within the Rules of Thumb. Interpret them conservatively. If you
need to make a more extensive use of another's work than suggested by the appropriate
Rule of Thumb, or if there isn't an appropriate Rule of Thumb, use the four
factor fair use test to determine whether the use is fair or requires permission.
Other ExemptionsOur libraries are authorized
to exercise special rights in addition to fair use. These rights are described
in Section 108 of the
copyright law and include:
Performances
and Displays in Face-to-Face Teaching and Distance EducationEducational
institutions and governmental agencies are also authorized by a separate copyright
statute to publicly display and perform others' works in the course of face-to-face
teaching activities, and to a lesser degree, in digital distance education. These
rights are described in Sections
110 (1) and (2), respectively, of the Copyright Act. More information about
the recent expansion of Section 110(2)'s rights for digital distance education
may be found in The TEACH Act.
RULES OF THUMB
FOR COURSEPACKSThe Classroom
Guidelines that were negotiated in 1976 can provide helpful guidance and we
recommend that you read them. 1.
Limit coursepack materials to single
chapters single articles from a journal
issue several charts, graphs or illustrations
other similarly small parts of a work.
2. Include
any copyright notice on the original appropriate
citations and attributions to the source. 3.
Obtain permission for materials that will be used
repeatedly by the same instructor for the same class.
RULES OF THUMB
FOR DISPLAYING AND PERFORMING OTHERS' WORKS IN DISTANCE LEARNINGThese
Rules of Thumb are different from the others. For the most part, Rules of Thumb
address making and distributing copies. Distance Learning raises these concerns
too, but "public performance" is the focus of these Rules of Thumb.
Section 110 of the copyright
law authorizes educational performances and displays of entire works (like poems,
plays, musical works and movies), but it significantly distinguishes between what
can be performed in the classroom and what can be transmitted. This results in
a "gap" in legal authority to perform certain works for distance learners.
The CONFU Educational Fair Use Guidelines for Distance
Learning apply fair use to fill this gap.
But
the Distance Learning Guidelines only tackle fair use
to perform and display others' works in two contexts: - Live
interactive distance learning classes
- Delayed
transmission of faculty instruction.
They
do not cover fair use of (performance of) others' works in online course materials.
CONFU participants felt that these uses were so new that it was hard to even describe
them, let alone describe fair use in this context. Nevertheless, the Guidelines
can provide helpful guidance and we recommend that you read them. Check
Sections 110(1) and (2)
before proceeding since they authorize considerable performance activity without
any need to refer to these Rules of Thumb or the Guidelines. Also check any licenses
acquired with materials purchased specifically for distance learning; they should
include all the rights you will need to utilize them for that purpose, with no
need to refer to these Rules of Thumb or the Guidelines. If they don't, and you
need to rely on these Rules of Thumb in any distance learning context, remember:
small parts, limited times and limited
access are the keys to fair use.
1.
Incorporate performances of others' works sparingly
-
only if a faculty member or the institution
possesses a legal copy of the work (i.e., by purchase, license, fair use, interlibrary
loan, etc.). 2. Include
any copyright notice on the original
appropriate citations and attributions
to the source 4.
Obtain permission for materials that will be used
repeatedly by the same instructor for the same class.
RULES OF THUMB
FOR DIGITIZING AND USING IMAGES FOR EDUCATIONAL PURPOSESThe
CONFU Educational Fair Use Guidelines for Digital Images
suggest that fair use requires our libraries to request permission to use images
at the same time they are digitized. Our Rules of Thumb take a different approach,
but in other respects, the Guidelines can provide helpful
guidance and we recommend that you read them. For more information about digitizing
images and other non-text media, see Advanced Topics in
Copyright Law. The third section addresses issues that typically arise in
the College of Fine Arts. 1.
Is the image you wish to digitize readily available online or for sale or license
at a fair price? If YES: Point to,
purchase or license the image. Do not digitize it unless you are in the process
of negotiating a license. If you have a "contract pending," digitize
and use the image in accordance with these Rules of Thumb until the license is
finalized and you have received the licensed digital image. If
NO: Digitize and use the image in accordance with the following limitations:
Limit access to all images except small, low resolution
"thumbnails" to students enrolled in the class and administrative staff
as needed. Terminate access at the end of the class
term.Faculty members also may
use images at peer conferences. Students
may download, transmit and print out images for personal study and for use in
the preparation of academic course assignments and other requirements for degrees,
may publicly display images in works prepared for course assignments etc., and
may keep works containing images in their portfolios. 2.
Periodically review digital availability. If a previously unavailable image becomes
available online or for sale or license at a fair price, point to or acquire it.
RULES OF THUMB FOR
DIGITIZING AND USING OTHERS' WORKS IN MULTIMEDIA MATERIALS FOR EDUCATIONAL PURPOSESThe
CONFU Fair Use Guidelines for Educational Multimedia
suggest that fair use requires adherence to specific numerical portion limits,
that copies of the multimedia work that includes the works of others should be
strictly controlled, and that fair use "expires" after 2 years. Our
Rules of Thumb acknowledge that these are important considerations, but the Guidelines
numbers do not describe the outer limits of fair use. Despite their tightly controlled
approach, the Guidelines can provide helpful guidance
and we recommend that you read them. Please keep
in mind that the rights described here are rights to create
unique works, but not to make multiple copies and give them out (distribute
them). 1.
Students, faculty and staff may incorporate
others' works into a multimedia work display
and perform a multimedia work in
connection with or creation of class
assignments curriculum materials remote
instruction examinationsstudent
portfoliosprofessional symposia. 2.
Be conservative. Use only small amounts of other's works.3.
Don't make any unnecessary copies of the multimedia work.
RULES OF THUMB
FOR MUSICThe Guidelines
for Educational Uses of Music negotiated in 1976 can provide helpful guidance
and we recommend that you read them. 1.
Limit copying as follows: sheet music,
entire works: only for performances and only in emergenciessheet
music, performable units (movements, sections, arias, etc.): only if out of printstudent
performances: record only for teacher or institutional evaluation or student's
portfoliosound recordings: one copy
for classroom or reserve room use 2.
Include any copyright notice on the
original appropriate citations and
attributions to the source. 3.
Replace emergency copies with purchased originals if available.
RULES OF THUMB
FOR RESEARCH COPIESLimit research
copies to single chapters single
articles from a journal issue several
charts, graphs, illustrations other
similarly small parts of a work.
RULES OF THUMB
FOR DIGITIZING AND USING OTHERS' WORKS IN ELECTRONIC RESERVESThe
Fair Use Guidelines for Electronic Reserve Systems
describe general limitations on the scope of materials that should be included,
citation and notice requirements and access, use, storage and reuse of reserve
materials. These Rules of Thumb are an abbreviated summary of the Guidelines
terms which provide helpful guidance that we recommend you review. You
may also wish to review the Fair
Use in the Development of E-Reserve Systems published by a group of library
organizations.
1. Limit
reserve materials to single articles
or chapters; several charts, graphs or illustrations; or other small parts of
a work a small part of the materials
required for the course -
copies of
materials that a faculty member or the library already possesses legally
(i.e., by purchase, license, fair use, interlibrary loan, etc.). 2.
Include any copyright notice on the
original appropriate citations and
attributions to the source 4.
Obtain permission for materials that will be used
repeatedly by the same instructor for the same class.
Using the Four
Factor Fair Use TestThe Rules of Thumb do not
describe the outer limits of fair use; they describe a "safe harbor"
within the bounds of fair use. So, a use that exceeds the suggestions of the Rules
of Thumb may still be fair. Most people think
that the fair use test is difficult. Actually, it's not so much difficult as it
is uncertain - susceptible to multiple interpretations. Two people can review
the same facts about a proposed use and come to different conclusions about its
fairness. That's because one must make many judgments in the course of weighing
and balancing the facts. Attorneys read the "judgments
of judges" to learn how to make judgments ourselves, but judges see things
differently (one from another) too. Because "reasonable minds can disagree"
about fair use, perhaps it is unrealistic to try to predict what a judge would
think about a proposed use. But that's just what this test is about. Here's
how it works:With a particular use in mind,
- Read each question and the comments about it
- Answer
each question about your use
- See how the balance
tips with each answer
- Make a judgment about
the final balance: overall does the balance tip in favor of fair use or in favor
of getting permission?
The
four fair use factors: What is the
character of the use? What is the
nature of the work to be used? How
much of the work will you use? What
effect would this use have on the market for the original or for permissions if
the use were widespread?
FACTOR 1: What is the
character of the use?
- Nonprofit
- Educational
- Personal
|
- Criticism
- Commentary
- Newsreporting
- Parody
- Otherwise
"transformative" use
| | Uses
on the left tend to tip the balance in favor of fair use. The use on the right
tends to tip the balance in favor of the copyright owner - in favor of seeking
permission. The uses in the middle, if they apply, are very beneficial: they add
weight to the tipping force of uses on the left; they subtract weight from the
tipping force of a use on the right. Imagine
that you could assign a numerical weight to each use. A nonprofit educational
use other than the middle uses, for example, making a copy of a journal
article for a university class, might weigh 5 in favor of fair use. But a nonprofit
educational use that is also criticism, for example, the inclusion by a faculty
member of a quote from another's work in a scholarly critique, would weigh even
more in favor of fair use: about 6 or 7. That's because the uses in the middle
are "core" fair uses; the ones most dearly protected. Even
if they are for-profit, the core fair uses weigh in favor of fair use: that's
why they subtract from the weight against fair use of a commercial use. A commercial
duplication of an article from a journal might weigh 5 against fair use. But a
commercial commentary or quotation would barely tip the scale, if at all. This
is not to suggest that fair use can be precisely quantitatively analyzed. Numbers
are just a tool to illustrate how the facts interact and affect each other. Actually,
numbers wouldn't make the analysis any easier: copyright owners and users would
have just as much trouble agreeing on weights as we have agreeing on any other
judgment about fair use.
FACTOR 2: What is the
nature of the work to be used?
|
- A mixture of fact and imaginative
| |
Again, uses on the left tip the balance
in favor of fair use. Uses on the right tip the balance in favor of seeking permission.
But here, uses in the middle tend to have little effect on the balance. Which
way is your balance tipping after assessing the first two factors?
FACTOR 3: How much of
the work will you use? This
factor has its own peculiarities. The general rule holds true (uses on the left
tip the balance in favor of fair use; uses on the right tip the balance in favor
of asking for permission), but if the first factor weighed in favor of fair use,
you can use more of a work than if it weighed in favor of seeking permission.
A nonprofit use of a whole work will weigh somewhat against fair use. A commercial
use of a whole work would weigh significantly against fair use. For
example, a nonprofit educational institution may copy an entire article from a
journal for students in a class as a fair use; but a commercial copyshop would
need permission for the same copying. Similarly, commercial publishers have stringent
limitations on the length of quotations, while a student writing a paper for a
class assignment could reasonably expect to include lengthier quotes. Which
way does your balance tip after assessing the first three factors? The answer
to this question will be important in the analysis of the fourth factor!
FACTOR 4: If this kind
of use were widespread, what effect would it have on the market for the original
or for permissions?
- After evaluation
of the first three factors, the proposed use is tipping towards fair use
|
- Original is out of print or otherwise unavailable
- No
ready market for permission
- Copyright owner
is unidentifiable
| - Competes
with (takes away sales from) the original
- Avoids
payment for permission (royalties) in an established permissions market
| This factor is a chameleon. Under
some circumstances, it weighs more than all the others put together. Under other
circumstances, it weighs nothing! It depends on what happened with the first three
factors. Here's why: This
factor asks, "If the use were widespread, would the copyright owner be losing
money?" Well, actually, it asks, "If the use were widespread, and
the use were not fair, would the copyright owner be losing money?"
After all, if the use were fair, the copyright owner would not be entitled to
any money at all, so he couldn't "lose" what he never would have had
to begin with. When you include in your assumptions
the very conclusion that you are trying to reach (you assume a use
is not fair in the process of trying to figure out whether it is
fair), you violate a principle of logic - you engage in "circular reasoning." Courts
deal with this propensity of the fourth factor to encourage circular reasoning
by looking at the first three factors before evaluating the fourth. If the first
three factors indicate that the use is likely fair, courts will not permit the
fourth factor to convert an otherwise fair use to an infringing one. On the other
hand, if the first three factors indicate that the use is likely not fair, courts
are willing to consider lost revenues under the fourth factor. In this case they
do not have to assume the conclusion in order to reach it. They reach the conclusion
based on good evidence that the use is not fair. This means that if a use is tipping
the balance in favor of fair use after the first three factors, the fourth factor
should not affect the results, even if there is a market for permissions, even
if the owner would lose money because of the use. On
the other hand, if a use is tipping the balance in favor of asking for permission
one need not "assume" it's not fair, the first 3 factors show that it's
not. Add to that an active permissions market and the fourth factor will decisively
tip the balance. Forget fair use. Get permission. The
facts in the middle illustrate circumstances that also supports fair use, as they
indicate a lack of harm to the owner's economic incentive. Does
the balance for your use tip in favor of fair use or in favor of getting permission
after consideration of all four factors?
* A
Note About Time Limits - Although the statutory fair use analysis does not address
time limits, many of our Rules of Thumb and all the Guidelines contain time limits
on fair use. Many people do not understand this and wonder why a use that is fair
today would cease to be fair at the end of a semester. This is hard to explain
because it does not seem to have a basis in statutory requirements or case law.
But there the limits are: in the Classroom Guidelines (1976);
the CONFU Proposed Distance Learning Guidelines, Multimedia
Guidelines and Image Guidelines (all 1996); and
even in the Electronic Reserve Guidelines (1996, non-CONFU).
I have discussed this with other attorneys within the university community and
have not heard a satisfactory legal explanation. Nevertheless, I have concluded
that there may be two reasons we seem to agree to time limits anyway:
1) publishers clearly believe fair use has time
limits; 2) courts seem increasingly willing
to let the fourth factor of the fair use analysis trump all the other factors
so that where there is a market for permissions, "fair use is negated."
This was the position articulated by the majority in the recent MDS
decision. Under this strictly
economic analysis, in those circumstances where a ready market for permissions
exists, such as permission for coursepacks, fair use shrinks - perhaps in time
as well as in other dimensions. But the opposite is true, too. Where the permissions
market is dysfunctional, fair use expands, both in the amount one may use and
in time. For more information about this, see Advanced
Topics in Copyright Law, the third section
addressing issues in a College of Fine Arts.
If you are associated with the University of Texas System
as faculty, staff or student and have questions about the application of the Rules
of Thumb or the four factor fair use test, please let
me know.
Need more information? The Copyright
Crash Course contains detailed materials on fair use and many other copyright
issues. | |