Who should be the copyright educator for an educational institution?

I am taking a course in copyright education from the ALA, and I thought I'd share my response to a discussion question (paraphrased) here and tailored for my situation:

It's decided that a lawyer is not the right person to conduct copyright education for faculty and staff at the college. What kind of person is the right person for this role?

A lawyer may not be the best person to do this kind of educational work at a school for the following reasons:
1. Unnecessary expense; legal advice should only be necessary for a school in high risk and other unusual situations.
2. Lawyers tend to the risk-averse side of the issue, in my experience, and may be less inclined to a balanced view.
3. The advice of lawyers is not necessarily better than a person well-versed in the issue, because their job is to advise, not give concrete answers, and that advice can be correct or not. Only a judge tell...

 In educational settings, peers are often the best people to do the day-to-day work of this sort, because it builds on a trust that hopefully already exists in relationships between colleagues. This position is always a bit delicate and has the unpleasant role of sometimes bearing bad news, so a good working relationship is essential to keeping people from "going rogue" and avoiding dealing with the topic at all. Since a good basic (and continuing) education in the subject of copyright is all that may be needed for someone in this role, anyone with the interest and inclination could fulfill it, though someone like a librarian or media specialist who is involved in the issue on a daily basis, may work out better. IMO formal training is not always necessary if the person is diligent with their self-study, but a basic course is recommended.

Copyright issue of the day 13A

The DATA:
(There is) a short story I want to use for a class. I'm a subscriber, and the print issue is available in the library. The digital version is behind a paywall on the New Yorker's site.

NAU's databases would allow me to permalink from a database, allowing for legal use. YC's databases are less robust, for I looked in multiple databases trying to find a way to permalink the story. Since this is a YC course, we don't have access to the database.

I intend to use the story for a single course, it will be behind the Blackboard password, and is used to help students develop reading skills. I selected the story because it deals with contemporary issues in a familiar world. However, it's a creative work, which goes against copyright.

What is the best way to get this story to students without violating copyright?

My RESPONSE:
At first glance, there are factors for and against: I assume you want to use the entire story (against) and it's creative fiction (against); any readily available licensing mechanism also weighs (against). You can legally obtain it (for) and you will distribute it only to your students (for) in a password protected area(for) for a limited time (for), and make the writing difficult to copy by leaving it in graphical form (for).
Overall I think it weighs against because of the first 3 points.
The move toward a better fair use argument would require you to transform the use of the work by creating assessments and assignments directly tied to it, integrating into your curriculum so that it is related very much to your outcomes, and showing that the work is far and away the best example of the things you are trying help your students learn.

It would be a good case to ask permission and hope they say "sure".

Fair Use Case Study #445

In response to a faculty request that 6 chapters of a cooking DVDs:

Instructor
If we streamed all of the videos you've requested, it would be a goodly portion of the DVD that in my opinion, weighing other factors, would be more than a fair use. I'm open to discussion on this, especially if you are asking students to make these recipes as part of your curriculum.
I would like to stream the falafel, fries, and one of the burger segments. It is a special case that the basic recipes segment falls into, because that seems to be the 'heart of the matter' in the entire DVD. It's like giving away the punchline, or showing the ending of a movie or the last chapter of a book, and that is a big factor in fair use evaluation.

If you have another viewpoint I'm neglecting please let me know. I appreciate your working with me on this.

Burning questions

I have some burning questions for Mr. Butler next week when the fair use course starts:

• What about music as an (always) dramatic/creative work?
• How does one interpret the TEACH Act, as a whole or parsed out?
• What are the impacts of current bills like CISPA, ACTA, and how does legislation jibe with adhoc agreements like the 'thing' with 3 strikes.
• What is going on with the O'Dwyer case and what is the current thinking on linking?
• To what extent can fair use analysis be mechanized?

GSU Webinar Notes

Unpublished works affecting fair use shifted in the 90's - Bbutler (?)
Acuff-Rose Case was hugE

Michael Madison describes Best Practice rationale

First 70 pages of GSU ruling are setting the FU analysis

factor 3 and 4 are the impact points in GSU: win one and edu wins all when 1 & 2 are satisfied.

GSU Not a precident in a strict legal sense. 10% rule applies best for strictly academic texts.

Jonathan Band streaming argument READ fsrn
 _____

 JB: "The four factors are not an exhaustive list, there are others that can be considered"

uses were NOT transformative; transformation is not a big factor because it is simply edu use

De minimus non curat lex = the little things don't matter

3 of 4 factors are almost always a win

Hope of plaintiffs was to add more burden to inst's making FU determinations


Questions:
GSU will have to use the 10% rule in their policy?

GSU Ruling Notes

"My initial reaction is, honestly, what a crushing defeat for the publishers," said Brandon C. Butler, the director of public-policy initiatives for the Association of Research Libraries. Given how few claims the publishers won, "there's a 95 percent success rate for the GSU fair-use policy." The ruling suggests that Georgia State is "getting it almost entirely right" with its current copyright policy, he said. (Cron Article)
So should we look at the the GSU policy and take the good parts?

Factor 4:
Ms. Sims said that the judge took the educational purpose of each use seriously and did not focus just on market considerations. "That was one of the contentions here—that if you can pay for it, you should be," she said. "And that's clearly not what the court is saying." (Cron Article)
This is good, because firms can just create a market for everything and loop around fair use altogether if this were the main factor being considered.

On Sunday, James Grimmelmann, a professor of law at New York Law School, posted a detailed analysis on his blog, The Laboratorium. "The operational bottom line for universities is that it's likely to be fair use to assign less than 10 percent of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn't make significant revenues through licensing," Mr. Grimmelmann wrote.

On the third factor, the amount copied, the court repudiated the Classroom Guidelines, calling them “not compatible with the language and intent of § 107.” It noted that the numerical limits in the Guidelines are so stringent that not one of the excerpts at issue in the case would fit within them. It was particularly uninterested in the Guidelines’ position that copying not “be repeated with respect to the same item by the same teacher from term to term,” which the court described as “an impractical, unnecessary limitation.”  (Laboritorium post)
This is such encouraging news. The no-repeat concept is poor in spirit and bone, and seems to have as it's intent to make coming up with a new replacement for lessons and material so problematic for teachers as to wear them down from trying.

Guiding Without Lines

©jaych1974

The prevailing wind of copyright judgements are eroding the old guidelines, exposing the open territory of fair use, upon which we must stand. The 10% rules, flow charts and true/false yes/no maps provided by the well-intentioned voices of copyright knowledge are less useful as we navigate toward a the honest assessment of the law itself, because these lines are drawn in sand, not rock.

     Nonetheless, I believe educators can usefully employ guides, lists of considerations and examples of practice - just not ones that provide yes or no answers. My apologies, but there are few if any absolutes when it comes to fair use, and anyone short of a judge who says so will have an equal amount of worthy detractors ready to offer another opinion. It is entirely reasonable to use a checklist to assist in making a fair use analysis, though it is not reasonable for guidelines to lead me to a dead end.

    This is not to say that institutions cannot have rules that forbid certain practices that would expose them to unnecessary risk, mainly in the area of excessive amounts of copying. Common sense clearly seems to bar the way for copying entire works or anywhere close to it. We cannot make a systematic, institutional practice of anything like this, and we can still consider such uses on a case to case basis, and an individual can still decide that their transformative use is so necessary to the educational outcome that the entire work is appropriate. At the same time, the institution, and really the employees who may be called upon to assist such a use, have a right to refuse to assist in those uses which they feel may put themselves at undue risk. This should be their right, since those individuals may be found to have a contributory or vicarious liability through their actions. This could put people in a difficult spot, but if institutions make solid policy, have and a clear intent to follow copyright law and place responsibility in the hands of faculty - documented and supported by copyright education - all staff should be able to cooperate within a space that allows for innovation and mitigated risk.
     It isn't easy to draw lines, and in this area of the law it's practically impossible. This allowable degree of uncertainty, however, should not lead institutions to shut doors and place roadblocks. There is every reason to foster study and expertise in this area, and create the best guideposts we can to help educators make their best judgement. It is within our capability as stewards of fair use to carve out the territory within which we can all support making excellent learning experiences for students.