2008 PSU Copyright Symposium

Copyright Law for University Faculty

David L. Silverman Stoel Rives LLP 900 SW 5th Ave Portland, OR 97202 dlsilverman@stoel.com

Introduction and Scope 
   

 

Central tenets of copyright law Nature of the rights of copyright owners Fair use defense Application of fair use defense to course packs Face-to-face exception for classroom use TEACH Act Rights of faculty authors vis-a-vis the university and publishers

History of Copyright 

Statute of Anne (8 Anne § 19, 1710) 

Monopoly to authors, 14 year term. ³[The Congress shall have the power] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.´ Term: life of the author plus 75 years. 

U.S. Constitution, Art. 1 § 8.8:  

Copyright Act of 1976 (17 U.S. Code) 

Copyrightable Subject Matter    

Protects ³original works of authorship, fixed in any tangible medium of expression.´ 17 USC § 102. Works of authorship can be literary, musical, dramatic, choreographed, visual arts, motion pictures, or architectural. Protects published or unpublished, registered or unregistered works. Notice not required for protection. Copyright protects expression, not ideas or facts. 

Originality requirement: Feist, 499 U.S. 340 (1991).

Nature of the Right 

The owner of a copyright has the exclusive rights in, and may prevent another from: 
    

Reproducing the work (copying); Preparing derivative works; Distributing copies of the work; Performing certain kinds of works publicly; Displaying certain kinds of works publicly; and Performing sound recordings by digital audio transmission. 17 USC § 106. 

Divisibility of the copyright bundle

Damages (Risk) 

Actual damages Statutory damages 
   

Lost sales and infringer¶s profits From $750 to $30,000 per work infringed; Attorney¶s fees possible; and Up to $150,000 per work if willful. No statutory damages if infringer (a) had reasonable belief that use was fair use, and (b) was employee of nonprofit educational institution acting within scope of employment. 17 USC § 504(c)(2). Actual damages remain available.  

Innocent infringer exception: 

Fair Use Defense 

Judicially created doctrine, codified in 1976 Act. 

³The fair use of a copyrighted work « 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 USC § 107.

Myths about Copyright and Fair Use   

As long as you don¶t make a profit, it¶s a fair use. As long as the copies are for teaching or research, it¶s a fair use. If the work was published before 1976 (or 1950 or some other date), it is in the public domain and you can¶t infringe. 

Determining if a work published after the 1920¶s is in public domain can be difficult.

Nature of the Fair Use Inquiry 

Bright line rules and standards 


Bright line: no person under 21 may consume alcohol Standard: drivers must exercise reasonable care Standards give more discretion to the court No two cases are the same But outcomes can be predicted by analogy 

Fair use factors are standards  

Inquiry is highly fact-specific 


Supreme Court Fair Use Cases   

Sony v. Universal Studios, 464 U.S. 417 (1984)  Copying works lawfully obtained for personal, non-commercial use is probably fair use. Harper & Row v. Nation Enterprises, 471 US 539 (1985) (Ford¶s book on Nixon)  300 words were ³heart´ of unpublished book. Campbell v. Acuff-Rose, 510 US 569 (1994)  For-profit use may be fair use, especially if it is ³transformative´.

976 Act Guidelines 

Guidelines for Classroom Copying 
   

Included as presumptive safe harbor in legislative record for 1976 Act Not definitive on what is or isn¶t fair use Brevity: complete article < 2500 words, or excerpt < 10% or 1000 words Spontaneity: upon inspiration of professor, without sufficient time to get permission Cumulative effect: one article or two excerpts from same author, or three articles from same periodical volume or compilation. 

Brevity, spontaneity, and cumulative effect

Marcus v. Rowley 

D borrowed most of P¶s pamphlet on cake decorating, gave her version out without charge for use in class in a San Diego public school. 

Applying four factor test, court held no fair use: 
  

Nonprofit educational use, but little transformation, no attribution or attempt to get permission; Nature of work (factual or creative) was neutral; Amount used was almost the entire pamphlet; No proven effect on market (P¶s pamphlet was sold only to her own students), but still not a fair use. 

 

The use also failed the Guidelines tests for spontaneity and brevity. Lack of attribution (plagiarism) was a factor here. 695 F2d 1171 (9th Cir 1983)

Amer. Geophysical v. Texaco  

Company library circulated scientific journals to researchers, encouraged photocopying. No fair use:  

 

Use was commercial despite ³research´ purposes, not transformative, and to avoid buying extra volumes of journals; Articles were mostly factual/scientific; Entire articles were copied; No actual market for reprints, but company could have bought extra volumes or paid for permissions. Circularity problem with effect on market test. 

60 F3d 913 (2d Cir 1994)

Basic Books v. Kinko¶s 

First true coursepack case. No fair use: 
  

Nature of use was commercial, and Kinko¶s could not ³stand in the shoes´ of professors and students; Nature of works was more factual than expressive; Amount taken was quantitatively small, but fact of professors¶ selection supported finding that selections were qualitatively important parts; Market was affected because coursepacks substituted for purchase of books. Also a possible market for licensing of copies. 

Guidelines: failed on brevity and spontaneity. 

758 F Supp 1522 (SDNY 1991)

Princeton U. Press v. MDS  

Coursepack publisher undercut market by skipping permissions process, asserting fair use. Lower court agreed but 6th Circuit reversed en banc. No blanket immunity for ³classroom use´ despite preamble of § 107 ± use must still be ³fair´ 
   

See dissenting opinions ± court split 8-5. 

99 F3d 1381 (6th Cir 1996).

Use was commercial for same reason as in Kinko¶s case: copy shop could not ³stand in shoes´ of faculty; Copied material was entitled to full protection; Use of 5% to 30% of copied works was substantial, and court found presumption of qualitative importance; Market existed for permissions because other copy shops were paying license fees (following Texaco and rejecting circularity argument).

Summary on Course Packs 

MDS case settled the law on production of coursepacks by commercial copy centers. 

If copy shop is used, must get permissions.   

No cases holding professors or universities liable for distributing copies to students. Does not mean carte blanche if you do it yourself, but academic publishers are reluctant to sue universities (customers) or professors (authors). Perverse incentive? If there is market harm, there is liability risk.

In Class Performance Exception 

17 USC § 110 exempts: 

³performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.´ 

Means no license is required to show films, play songs, or show slides in the classroom.

TEACH Act (17 USC § 110(2))  

Intended for distance education restricted to classroom-like sessions. May display or perform (but not distribute) certain copyrighted works in whole or part to enrolled students, meaning: 


University must ensure students can not retain copies after the ³session´ ends, and University must prevent sharing with others.  

Tricky for faculty to rely on TEACH Act to supplement in-class work; May not simply distribute copyrighted material by email or by posting on a web site.

Rights of Professors as Authors 

Work for hire doctrine  

Work for hire is a work ³prepared by an employee within the scope of his or her employment.´ 17 USC § 101. If work is for hire, employer owns the copyright and is the author for purposes of the law. 

May apply to materials such as syllabi, course outlines, study guides and the like. Scholarly writings for publication may not be works for hire under this traditional, judge-created exception. Rationale: universities do not supervise or direct. 

Academic exception to work for hire doctrine. 


Further Reading   

B. Zidar, ³Fair Use and the Code of the Schoolyard,´ 46 Emory L.J. 1363 (1997). R. Thornburg, ³Impact of Copyright Law on Distance Education Programs´ 27 S. Ill. U. L.J. 321 (2003). N. McCraw and A. Flower, ³Ownership of Intellectual Property in Academic Institutions,´ in A. Flower, ed., Intellectual Property Technology Transfer (BNA 2006), at 361-96.

2008 PSU Copyright Symposium
Copyright Law for University Faculty

David L. Silverman Stoel Rives LLP 900 SW 5th Ave Portland, OR 97202 dlsilverman@stoel.com

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