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Copyright, Fair Use, and Blackboard

CUNY Copyright Guidance and the COVID Emergency

 

The CUNY Copyright Committee has updated its recommendations about copyright in " In unusual circumstances, or when works are otherwise unavailable." It MAY be  be considered fair use to copy lengthier portions of a work. 

Please see their guidance at 

Open Educational Resources and Zero-Cost Learning: Fair Use and COVID-19

Their suggestions have been developed by the CUNY Scholarly Communications Librarian in collaboration with CUNY Legal.

Fair Use in the Context of COVID-19

taken from  https://guides.cuny.edu/cunyfairuse

We are in a time of crisis. As colleges move to remote teaching and research in the wake of the COVID-19 pandemic, library copyright specialists have released a Statement on Fair Use & Emergency Remote Teaching & Research. This page provides key points from that statement and an ASERL webinar.

When moving to a remote teaching environment, remember that it's always easiest to link! The library provides access to many electronic resources and a number of vendors are providing free access to paywalled resources in response to the pandemic. For additional guidance about these resources and how to link to them, please see the section on CUNY library resources.

If a licensed version of a work is not available, faculty may conduct a fair use analysis to determine the suitability of making a copy. Making copies of new materials for students (by downloading and uploading files, or by scanning from physical documents) can present some copyright issues, but they're not different from those involved in deciding whether to share something online with your students when you are meeting in-person. It's better not to make copies of entire works - but most instructors don't do that! Copying portions of works to share with students will often be fair use, and at times (especially in unusual circumstances, or with works that aren't otherwise commercially available) it may even be fair use to make lengthier copies. How much is needed for the pedagogical purpose? Let this be your guide. Just be sure to limit access to enrolled students for the period of the course.

Where an instructor doesn't feel comfortable relying on fair use, a subject specialist at their campus library may be able to suggest alternative content that is already online through library subscriptions, or publicly online content.

 

Adapted from “Rapidly shifting your course from in-person to online” by Nancy Sims, University of Minnesota Libraries, and licensed under a Creative Commons Attribution-NonCommercial License.

The Purpose of Copyright

The purpose of copyright is to offer authors financial incentive to create and share their work.  Initially, the term of exclusivity was no more than twenty-eight years.  By 1998, the term had been extended to seventy years plus the life of the author.

History of Copyright in the United States

The Constitutional Provision Respecting Copyright

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

United States Constitution, Article I, Section 8. [Constitutional Committee on Detail] 1787


In 1947 United States Copyright Law became Title 17 of the U.S. Code.

The purpose of copyright is to offer authors financial incentive to create and share their work.  Initially, the term of exclusivity was no more than twenty-eight years.  By 1998, the term had been extended to seventy years plus the life of the author.

For more recent legal decisions related to fair use, see these summaries of recent cases.

Determine if material to be used falls within Fair Use.

To determine this, you must consider these four factors:     

  • the purpose of the use of the copyrighted work,    
  • the nature of the copyrighted work,    
  • the amount of the copyrighted work to be used, and    
  • the effect of reproduction on the sale of the copyrighted work.

Use this fair use check-list developed by Columbia University Libraries when determining if your planned use of copyrighted material is permitted under fair use. Or check out the Section 108 Spinner.

 

Transformative Use

If your use of a copyrighted work is transformative then it's probably fair use.  Transformative means that something new has been created rather than just a copy, Scholarly critique and parody are common forms of "transformative use."

Stanford has a great page that explains this more fully.

The Fair Use Exemption

The Fair Use Exemption

From the onset, Congress sought to maintain a balance between the creators’ and the users’ rights.  One way this was accomplished, which would be of particular relevance to the academic community, was to apply the Fair Use Exemption (Fair Use was introduced in the case of Gyles v Wilcox, 1740, UK.  Here, the courts created a doctrine of “Fairness Abridgement” which eventually evolved into the modern concept of “fair use.”)

Why has the term length tipped the balance so far in the creators’ direction?  The ability to infinitely reproduce copyrighted material through digital means has caused loss of revenue for the rights holders which in turn has created an intimidating litigious landscape.  The content owners’ successful lobbying for increased protection has been their means of holding the line.  However, the only way for a true balance to exist is for both sides to be vigilant in exercising their rights. Fair use is an important tool in determining what copyrighted information can be used without permission.  Unfortunately, because it requires judgment, many people pay copyright fees rather than apply the exemption. 

Ultimately, that strategy will work against us--the content consumers: Fair Use is like a muscle that needs to be worked, and if we don’t use it our rights may disappear.  The Copyright Committee is available to help you navigate the factors in making a decision to exercise the Fair Use Exemption.  This effort will benefit you, your students and fellow academicians.   

Fortunately, there is a growing movement which is making educators less dependent on copyrighted works.  The movement has many names: creative commons, open access.  Using O.A. journals for research and publication will help them to flourish and to provide scholarship that is not restricted by copyright.

TEACH Act

The Technology, Education and Copyright Harmonization Act, otherwise known as the TEACH Act, was developed in response to the increasing use of technology to deliver and display recordings of performances or images as part of a distance education program. The law was enacted in 2002 and revises sections 110(2) and 112(f) of the U.S. Copyright Act.

Under the TEACH Act, instructors at accredited nonprofit educational institutions may transmit legally acquired content as described below to any enrolled students, much as they would share this same content with students in a physical classroom.  They may share:

·         a performance or the display of an image they have produced for the course;

·         a performance of a non-dramatic literary or musical work, such as poetry and short story readings, all music other than opera, musicals and music videos, where the copyright is owned by another;

·         reasonable and limited portions of any other performance including all audiovisual works, plays, opera, musicals and other dramatic musical works where the copyright is owned by another; or

·         a display of any image directly related to the subject matter of the course where the copyright is owned by another.

In order for its faculty to teach within the confines of the Act, the Institution is required to

·         have copyright policies in place;

·         share copyright compliance information with faculty, students, and staff;

·         limit access to the content to the duration of the course;

·         forbid the sharing of the content beyond the course; and

·         not interfere with technology put in place by copyright owners to prevent such retention or unauthorized further dissemination.

The TEACH Act does not supersede an educator’s right to evoke fair use in his or her teaching practices.  

(See Jane Davis’ Guide: http://websupport1.citytech.cuny.edu/websupport1/It/online/faculty/Permissions%20Guide.pdf)

Not sure what she means by this:

Additional Conditions: The performance or display must be: ● Made by, at the direction of, or under the supervision of the instructor;