Digital Distribution of Course Materials*

Steve RosenAttorney

Office of General CounselThe University of Texas System

srosen@utsystem.edu

* And other things you’ve always wanted to know about intellectual property law but were afraid to ask. . .

Overview: What Are We Talking About Today? (1/2)

• Primarily: How course materials may be properly transmitted in a digital context.

• Secondarily: “Fair Use”. A little law goes a long way (punctuated with references to Seinfeld and Barbie Dolls (really)). . . .

Overview: An Outline Of Today’s Discussion (2/2)

• The Evolution of Course Material Distribution.

• The Black Box That Is Fair Use (Law Stuff).

• Where We Go From Here.

What You Need To Know In One Slide• All: Read the informative ARL

brochure “Know Your Copyrights”, available at http://www.knowyourcopyrights.org/resourcesfac/kycrbrochure.shtml

Use Links.• All: Digital media is powerful and

should be used to enhance the educational experience.

The Distribution Of Academic Course Material (1/2)

• Discussion is a form of educational information.– Ounce of prevention . . .

• No one has been sued yet. . .• Fair use’s flexibility gives us a false sense of

security– AAP has threatened UC San Diego, Cornell and 6

other universities, including A&M.

• We should develop acceptable practices without being threatened with a lawsuit.

The Distribution Of Academic Course Material (2/2)

• Digitizing and distributing copies occurs all over campus (the library, within CMS, on Websites), and on every campus within UT System.

Defining Digital Distribution (1/2)

• Institutional use of any digital means to supply students with copies of class-related materials– Readings– Images– Audio files– Audiovisual materials

Defining Digital Distribution (2/2)

• Accomplished through –– Electronic reserves.– Posting within course management

systems.– Posting to an institutional server.– Electronic coursepacks.

Reserves And Coursepacks (1/2)

• Traditional reserves.– Placement of books in special room. – Time-limited access to resources for

“supplemental” reading.

• Next came photocopies.– Chapter; article; small number of copies.– Considered fair use by many.

• Then came electronic reserves.

Reserves And Coursepacks (2/2)

• Coursepacks– Originally photocopied collections of

readings that “supplemented” the textbook• Articles

• Chapters

– In some cases, coursepacks included all readings for a class (no textbook used).

– Commercial coursepacks have been ruled by two courts to not be fair use.

Copyright And Fair Use: It’s The Law. . .• The benefits of copyright ownership: The

exclusive right to:copy;modify;distribute;publicly display; andpublicly perform.

• Grants a monopoly in order to encourage the development of new ideas.

Fair Use – 4 Factors (1/5)

• Exception to copyright monopoly: Protects copying for use in “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” 17 USC § 107.

• Purpose also is to encourage the development of new ideas.

Fair Use – 4 Factors (2/5)

• Factor No. 1: Purpose and Character of the Use. Two facets: Whether the defendant’s work is commercial or non-commercial in nature.

Whether the work is transformative. * “Dungeon Dolls” = transformative.* Seinfeld Aptitude Test = not

transformative.

Fair Use – 4 Factors (3/5)

• Factor No. 2: Nature of the copyrighted work.

The more creative a work, the greater the protection.

Cataloguing, indexing are not protected as vigorously.

Fair Use – 4 Factors (4/5)

• Factor No. 3: Amount and Substantiality of the Portion Used.

Sliding Scale.

Fair Use – 4 Factors (5/5)

• Factor No. 4: Potential Effect on the Market.

Whether alleged infringer’s work usurps demand for plaintiff’s work.

Transformative work less likely to have an adverse impact.

What Do The Courts Tell Us? (1/2)

• Texaco (1994): Copying articles from a journal for routing may not be fair use.

• Kinkos (1991) and MDS (1996): Commercial copy centers may need to secure permission to distribute coursepacks.

• Perfect 10 (2007): Google’s thumbnails of larger photos are fair use.

What Do The Courts Tell Us? (2/2)

• Different judicial philosophies.

Potential (MDS) vs. actual (Perfect 10) market harm.

Market theory vs. constitutional theory (Georgia Harper).

Summary of the legal standard

• Fair use is unavoidably vague.• Historically distinct practices

have merged.– Library reserves– Coursepacks

• Status of nonprofit coursepacks uncertain.

Observations I

• E-reserves policiesfollow coursepack policies.

• Same range of policy choices are reflected in electronic reserve policies.

Observations II

• Guidelines To Assist In The Creation Of Coursepacks: Limit coursepack materials to

– single chapters, single articles from a journal issue, several charts/graphs/illustrations and other similarly small parts of a work. Include any copyright notice on the originals and appropriate attribution. Obtain permissions for materials used repeatedly.

Observations III

• Decision to rely on fair use is individual and decentralized.

• Academic control requires centralization.

• CCC subscription license (next slide).

• CCC/Bb collaboration.

• Campus copyright offices.

Working Toward A Comprehensive Solution• Copyright Clearance Center’s “Annual

Copyright License for Academic Institutions” Covers most, but not all materials faculty members might want to use. More helpful when coverage expands.

• UT Task Force on Digital Distribution of Course Materials

Questions. . .

Thank You!

• Steve Rosen– Attorney, UT System – Copyright, Trademark

and Intellectual Property Matters– srosen@utsystem.edu

• Georgia Harper– Outside Counsel to UT System for Copyright

Matters– UT Libraries Scholarly Communications Advisor– gharper@austin.utexas.edu– http://copyright.lib.utexas.edu/