Trending in Copyright Setting the Standard in Fair Use:

Best Practice Codes and

the Georgia State Decision

Kathryn Miller Goldman Goldman & Minton, P.C.Baltimorewww.charmcitylegal.com

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C.A. § 107

Limitations on exclusive rights: Fair use

Codes of Best Practices in Fair Use

Center for Social MediaSchool of CommunicationAmerican University

Documentary Filmmakers’ Statement of Best Practices in Fair Use (November 2005)

Code of Best Practices in Fair Use for Online Video (June 2008) Code of Best Practices in Fair Use for OpenCourseWare

(October 2009) Code of Best Practices in Fair Use for Media Literacy Education

(June 2010) Fair Use for Scholarly Research in Communication (June 2010) Code of Best Practices in Fair Use for Poetry (January 2011) Code of Best Practices in Fair Use for Academic and Research

Libraries (January 2012)

Codes of Best Practices facilitated by the Center for Social Media

Society for Cinema and Media Studies Statement of Fair Use Best Practices for Media Studies’ Publishing (April 2007)

Best Practices in Fair Use of Dance Related Materials (2009)

Codes of Best Practices facilitated by other organizations

Cambridge University Press, et al. v. Becker, et al. , --- F.Supp.2d ----, 2012 WL 1835696,N.D.Ga.,2012.

The Claim: Copyright infringement based on:

e-reserves (library managed course readings that are made available to particular classes); and

individual course learning management pages administered by faculty members

Cambridge University Press, et al. v. Becker, et al.

The Plaintiffs: Cambridge University Press Oxford University Press Sage Publications an early filing in the case confirmed that the

lawsuit was in fact being funded 50% by the Copyright Clearance Center (CCC) and 50% by the Association of American Publishers (AAP)

Cambridge University Press, et al. v. Becker, et al.

The Excerpts 125 excerpts listed in the complaint Reduced to 99 before trial Further reduced to 75 at trial

Cambridge University Press, et al. v. Becker, et al.

The Defendants: President of the University Provost Provost for Information Systems Dean of Libraries The Entire Board of Regents NOT the 23 professors who posted the works

Cambridge University Press, et al. v. Becker, et al.

The Original Claims: Direct infringement Contributory infringement Vicarious infringement Injunctive relief sought – not damages

Cambridge University Press, et al. v. Becker, et al.

The Decision Only five instances found to be infringing If statistics from the reserves platform showed

that no students had actually accessed the excerpt – no infringement

Use is permissible if the professor copies no more than 10 percent of the pages in the book

If excerpts available at a reasonable price and in a digital format, the court could find in favor of the publishers

Cambridge University Press, et al. v. Becker, et al.

Fair Use is becoming more predictable Codes of Best Practices are an innovation

form of access to justice Georgia State decision upholding the

checklist reinforces the usability of the fair use defense

Conclusion

• Butler, Brandon C. "ISSUE BRIEF: GSU Fair Use Decision Recap and Implications." Association of Research Libraries, 15 May 2012. <http://www.arl.org/bm~doc/gsu_issuebrief_15may12.pdf>.

• Cambridge University Press, et al. v. Becker, et al. , --- F.Supp.2d ----, 2012 WL 1835696,N.D.Ga.,2012.

• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

• Heins, Marjorie, and Tricia Beckles. "WIll Fair Use Survive? Free Expression in the Age of Copyright Control." The Free Expression Policy Project. Brennan Center for Justice at NYU School of Law, 05 Nov. 2005.

• Sag, Matthew. "Predicting Fair Use: An Empirical Study of Copyright's Fair Use Doctrine." DePaul University College of Law, 2011. <http://www.law.depaul.edu/>.

• Smith, Kevin, and Siva Vaidhyanathan. "The Georgia State Copyright Case: Issues and Implications." EDUCAUSE Homepage. EDUCAUSE, 8 Sept. 2011. <http://www.educause.edu/library/resources/georgia-state-copyright-case-issues-and-implications>.

• Young, Jeffrey R. "Pushing Back Against Legal Threats by Putting Fair Use Forward." The Chronicle of Higher Education, 29 May 2011. <http://chronicle.com/article/Pushing-Back-Against-Legal/127690/>.

References