2012:A Landmark Year in the U.S. Courts for

Copyright, Fair Use and Higher Education

What Does it All Mean for You in 2013?

The Importance of This Program on This Day

CUNY's 12th Annual IT Conference“Instructional/Information Technology in CUNY: Disruptions and Developments”

“I have plenty of colleagues who either ignore copyright laws or are reluctant to use various media out of fear of copyright laws.”Tim Forgione, Internet for Educatorshttp://timforgionecse624.wordpress.com/author/timforgione/

The Inspiration for the Format of This Program: A Virtual Presenter

CUNY's 12th Annual IT Conference“Instructional/Information Technology in CUNY: Disruptions and Developments”

CALL FOR PROPOSALS:“We see new prodigies of scale – MOOCs (Massive Open Online Courses), enterprise-wide plans and deployments, systems talking to systems. What are the gains and losses of scaling up thus? As new configurations emerge, do they only add to the mix or change it?”

• “MOOC Campus, for example, has no subject-specific professors. Some of the greatest lecturers in the world have their content available online—we don’t need to reinvent the wheel.” http://mooccampus.org/2013/05/08/a-school-with-no-teachers /

• “I’m all for using and repurposing existing resources whenever possible instead of wasting time and money reinventing the wheel.” Bob Ridge-Stearn, Head of e-Learning at Newman University in Birmingham. The Digital Day http://thedigitalday.wordpress.com/2013/02/17/oers-p1-images/

The most common lament I hear from participants when I deliver workshops and presentations on copyright and fair use law is that what they really want is a good night’s sleep.

I began teaching in distance education in its Stone Age. It was 1984. Students received VHS tapes, handouts, assignments, and exams through the mail. Due dates were postmarks. A lot has changed since then.

Three Cases (+ One +An Update)

1. Streaming Multi-media & the Rights to Public Performance

2. Making Printed Materials Available Online for Courses (Electronic Reserves)

3. (A Two Part Case)– Making Printed Material Available Online When

Author Cannot Be Located for Permission – Providing Online Access to Scanned Documents

Both In and Out of Public Domain

CASE #1

Streaming Multi-media and the Rights to Public Performance

Go to DVD

CASE #2

Making Printed Materials Available Online for Courses (Electronic Reserves)

Go to DVD

CASE #3

Making Printed Material Available Online When Author Cannot Be Located for Permission

Go to DVD

Providing Online Access to Scanned Documents Both In and Out of Public Domain

Late-breaking!

Case #4The Authors Guild et. al vs. Google Inc.

“Siding With Google, Judge Says Book Search Does Not Infringe Copyright”(New York Times, November 14, 2013)

• “’[Google Books Project] advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals.’”

• “’Google’s book search is transformative [and therefore fair use]….words in books are being used in a way they have not been used before.’”

• “’Even assuming Google’s principal motivation is profit, the fact is that Google Books serves several important educational purposes.’”

• “The project benefits librarians, researchers, students, teachers, scholars, data scientists and underserved populations [such as the disabled] or those in remote places without libraries.”

• “’In this day and age of online shopping, there can be no doubt that Google Books improves books sales.’”

• The authors in the suit have filed an appeal.

Update – Case #2 (Georgia State)• Oral arguments were heard at the Eleventh Circuit Court of Appeals on November 19, 2013. These are the observations of

Kevin Smith, Scholarly Communications Officer, Duke University on what was said in court.

• Third Factor: “The publishers want a definitive statement that 1000 words is the absolute maximum for fair use of their works, but the court was not buying it. On this issue they also gave Steve Schaetzel, representing GSU, a hard time about Judge Evans’ 10% or one chapter rule, asking if that “bright line” was a legal error (which would justify reversal or remand) because it removes the flexibility from fair use…. [However] It seems clear [that the judges] do not want to provide prospective instructions that would remove the flexibility from fair use.”

• Fourth Factor: “One of the judges, Judge Marcus, raised the question of whether Judge Evans had impermissibly “shifted the burden” on this factor by asking whether publishers offered digital licenses. The general rule is that defendants (GSU, in this case) have the burden of proving fair use, and lawyers and judges love to watch out for inappropriate burden shifting. Mr. Rich was quick to agree that this was an error made by Judge Evans, but of course it is no such thing. She simply ruled on this factor based on facts that were in the record before her. Specifically, the publishers argued that they were losing licensing income due to the claim of fair use, so she asked if they were offering licenses. When told that some of the plaintiffs (i.e. Cambridge University Press) were not, she properly concluded that this factor did not always favor the publishers.

• “Lisa Macklin, the Director of the Scholarly Communications Office at Emory University, who has a smart and sensible perspective on most issues, reminded us that the problem being fought over in this lawsuit would go away if the academy would more fully embrace open access. The core problem here is the donation of copyright in academic works to publishers who then exploit them to earn every possible penny of profit.”

• http://blogs.library.duke.edu/scholcomm/2013/11/20/a-discouraging-day-in-court-for-gsu/# sthash.ki4yjO94.dpuf

Thank You!

Kathleen Collins – kcollins@jjay.cuny.eduBeth Evans – bevans@brooklyn.cuny.edu