From DigitalRhetoricCollaborative

Fair use ^[2] is an exception to copyright law that is completely determined through a case by case basis, though there are guidelines set up to determine whether use is/should be an exception. Under copyright law, any work of literature, art, or intellectual property is protected from outside replication. Fair use allows for the reproduction of these properties without express permission of the author as long as the intention behind the reproduction is beneficial for academic learning and not for personal profit or gain. There are some organizations, such as Creative Commons, that use the copyright laws but encourage reproduction of their work within certain guidelines.

Contents 1 Fair Use on the Internet 1.1 The Fair Use Project 1.2 A Copyright Manifesto 2 Court Cases 2.1 Kelly v. Arriba Soft Corporation 2.2 Lenz v. Universal Music Corporation 3 Legislation about Fair Use 3.1 US Copyright Law 3.2 Fair Use - Section 107 3.3 Technology, Education, and Copyright Harmonization Act (TEACH Act) 3.4 Digital Millennium Copyright Act 4 Hector Postigo 5 External Links 6 Notes

Fair Use on the Internet

The Fair Use Project

In 2006, the Fair Use Project was established by the Stanford Law School. The FUP provides full legal support to content creators throughout all digital platforms to protect copyrighted work. It is the only organization in the country to provide free legal representation to such artists. This program was founded as a collaboration with Stanford’s Center for Internet and Society, a public interest technology and law policy program at Stanford Law School.^[3] The Center for Internet and Society’s (CIS) primary purpose is to encourage digital writers to use technology and the law together to promote the values of democracy.

A Copyright Manifesto

The Digirhet writers of Michigan State University published A Copyright Manifesto as a set of guidelines for digital writers. These guidelines are established on three tenets of belief:

• Blame in terms of intellectual property law is based on outdated beliefs. With this in mind digital writers must become copyright activists, and striving for access to creative work to remain open, yet protected.
• All knowledge is cumulative, and current intellectual property laws hinder the natural expansion and growth of multimodal knowledge.
• Not only should credit be attributed, but digital writers/designers should be taking an active role in the intellectual property of their work during the creative process, not simply at completion.

The guidelines stated in A Copyright Manifesto is as follows:

1. Digital Writers must take an active role in their creations: by understanding copyright, Creative Commons, etc.
2. Sources must be attributed at all possible, and all repeated information must comply with the Fair Use Doctrine
3. Digital writers are responsible for making sure other digital writers are aware of media laws and copyright infringement
4. Writers must engage in digital legislation, whether it be through digital legislative communities or communicating with an elected official themselves.
5. Digital Writers/Designers should create and be involved in other digital creative communities as to create a relationship of support.
6. Digital Writers must exercise their own creativity constantly in order to minimize instances where they will be accused of violating copyright.
7. In compliance with the above statement, digital writers should never partake in active and willful stealing of information or content.^[4]

Court Cases

Kelly v. Arriba Soft Corporation

Kelly v. Arriba Soft Corporation occurred in 2002, involving a commercial photographer and a search engine company. Kelly, the plaintiff, sued Arriba Soft (defendant) for copyright infringement for using thumbnail sizes images produced by Kelly on their new search engine program. Though Kelly sold images to Arriba Soft, he did not utilize permission for thumbnails to be used on Arriba search engine platforms. The United States District Court of California ruled that thumbnails did infringe Kelly’s copyright, but fair use permitted Arriba to use thumbnails in the image index. The court upheld the right by search engines to display thumbnail copies of images in their index. The analysis of the case was released in July 2003. ^[5] Comparing the case to the four factors of Fair Use, the district court ruled that two weigh in favor of Arriba, one is neutral, and one weighs for Kelly (“Nature of the Copyrighted Work”).

Lenz v. Universal Music Corporation

Lenz v. Universal Music Corporation occurred in 2007, settling the argument as to whether or not copyright holders must consider fair use before removing content posted to the Internet. Stephanie Lentz (plaintiff), uploaded a video to YouTube of her children dancing to Prince’s song “Let’s Get Crazy.” Universal Music Corporation (defendant) sent a message to YouTube requesting that the video be taken off, claiming that it violated their copyright in compliance with the Digital Millenium Copyright Act (or DMCA). Lentz sued Universal Music for not considering fair use and misrepresenting information of the DMCA. During September 2007, both Prince and Universal released statements that Prince would be “reclaiming his art,” and that all user-generated content involving Prince would be removed from the Internet. Lentz argued that Universal was removing content in “bad faith” and not considering the fair use doctrine in their decision. The district court eventually ruled that copyright owners must consider fair use before issuing content removal in accordance with DMCA policies.^[6]

Legislation about Fair Use

Fair use is referred to as a doctrine, not a law. Being a doctrine means that rulings on this issue are made using other legislation pertaining to the topic of copyrighting.

The doctrine of fair use is not a law by itself, but it is incorporated into multiple other pieces of legislation pertaining to copyright. Below are some of the laws and acts that are used when making cases about fair use.

US Copyright Law

The United States passed the Copyright Act in 1976. This act prevents the unauthorized replication of a work. The copyright only covers the exact replication of a work; the ideas held within the work are not protected. Because of the copyright act, any author or creator is not required to have to register with the copyright office or put a seal on their work; it is automatically protected.

Protection under the copyright law applies to published and unpublished works. These works include any kind of intellectual property such as music, art, literature, etc.

Within the copyright act, there is a provision for the doctrine of fair use in Section 107.

Fair Use - Section 107

Section 107 of the copyright act gives the conditions under which a reproduction of a work is able to be used without gaining permission first. This exemption can be used by teachers and professionals alike to share information and knowledge with peers and students without using valuable time to get permission to share the information.

There are four factors that influence the decision as to whether or not a piece is being used fairly. The factors are:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

All of these factors must be taken into consideration when using another person's works. There is a lot of freedom within the parameters of fair use for property to be redistributed, but because of that freedom the lines guarding the copyright are also a little blurred.

The University System of Georgia provides a Fair Use Checklist for students in order to make sure that the academic work produced complies with fair use laws. This checklist ensures that all work meets the four pillars of fair use; if the work does not meet the acceptable standards then it is not eligible for submission. The Fair Use Checklist is based through the Copyright Advisory Office at Columbia University’s Fair Use Checklist

Technology, Education, and Copyright Harmonization Act (TEACH Act)

The Technology, Education, and Copyright Harmonization Act (TEACH Act) is an Act of the United States Congress passed on November 2, 2002 that allows accredited nonprofit educational institutions in United States to use a reasonable amount of copyrighted materials in a face-to-face classroom setting without the need to obtain permission of the copyright holders. The TEACH Act amended sections 110(2) and 112(f) of the U.S. Copyright Act to provide more guidance on how to determine if the usage of certain copyrighted materials is justified, including in unconventional teaching settings such as online distance learning. Though the TEACH Act does not supercede the Fair Use doctrine, it shares a similar concept with the latter in that it seeks to establish an equilibrium between protecting the rights of copyright holders and warranting the legal freedom of educators.

The TEACH Act permits educators to use nondramatic works such as poetry, short stories, all kinds of music except opera, still images and reasonable portions of other works for teaching purposes as long as they give due credit to the creators of the works. ^[7] However, electronic resources, digital textbooks and unlawfully acquired materials are not included in the permissible categories because of their potential to reduce the income of copyright owners, thereby limiting their resources to produce creative works in the future. ^[8]

According to the Copyright Clearance Center^[9], the TEACH Act includes other requirements for the use of copyrighted materials, such as:

• The use must be part of mediated instructional activities.
• The use must be limited to a specific number of students enrolled in a specific class.
• The use must either be for ‘live’ or asynchronous class sessions.
• The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.
• The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut & paste disabling, etc.

Thus the TEACH Act gives educators assurance of legal justification when using copyrighted materials, and in the meanwhile protects the intellectual property of creators to an extent.

Digital Millennium Copyright Act

The Digital Millennium Copyright Act ^[10] was passed in 1998 by President Bill Clinton as an amendment to the Copyright Act focusing on bringing copyright into the digital realm. It gave heavier penalties for copyright infringement on the internet along with criminalizing measures taken to obtain copyrighted work on the web without proper permission. The DMCA implements two different treaties created in 1996 by the World intellectual Property Organization (WIPO). The treaties included are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Hector Postigo

Dr. Postigo ^[11] is an Associate Professor at Temple University in Philadelphia, Pennsylvania. He teaches in the Department of Broadcasting, Telecommunications, and Mass Media. He has written two books that focus on the Digital Rights movement and the effect on copyright laws. His most recent book is called “The Digital Rights Movement:The Role of Technology in Subverting Digital Copyright”.

MIT Press comments on his book saying:

"The movement against restrictive digital copyright protection arose largely in response to the excesses of the Digital Millennium Copyright Act (DMCA) of 1998. In The Digital Rights Movement, Hector Postigo shows that what began as an assertion of consumer rights to digital content has become something broader: a movement concerned not just with consumers and gadgets but with cultural ownership. Increasingly stringent laws and technological measures are more than incoveniences; they lock up access to our “cultural commons." ^[12]

External Links

1. The Fair Use Project: Copyright and Fair Use
2. Columbia University Copyright Advisory Office: Fair Use Checklist
3. Bound By Law

Notes

1. ↑ http://digiteen12--2.flatclassroomproject.org/Copyright,+Fair+Use,+Legal_Social_Awareness
2. ↑ http://www.copyright.gov/fls/fl102.html
3. ↑ https://www.law.stanford.edu/organizations/programs-and-centers/center-for-internet-and-society
4. ↑ http://kairos.technorhetoric.net/12.3/topoi/digirhet/index.html
5. ↑ http://web.archive.org/web/20070928222214/http://netcopyrightlaw.com/pdf/kellyvarribasoftjudgement03182004.pdf
6. ↑ https://www.eff.org/files/filenode/lenz_v_universal/lenzorder082008.pdf
7. ↑ http://www.jstor.org/stable/40177252
8. ↑ http://eds.b.ebscohost.com/eds/pdfviewer/pdfviewer?sid=1b51df88-e903-4b56-820c-81b8bf2307af%40sessionmgr111&vid=2&hid=120
9. ↑ https://www.copyright.com/Services/copyrightoncampus/basics/teach.html
10. ↑ http://www.copyright.gov/legislation/dmca.pdf
11. ↑ http://www.hectorpostigo.com
12. ↑ https://mitpress.mit.edu/authors/hector-postigo