The Copyright Case We�ve Been Waiting for: Key Lessons & Policy Changes Monday, August 13, 2012 Presented by: Linda Enghagen Linda Enghagen is an attorney and Professor in the Isenberg School of Management at the University of Massachusetts at Amherst. Her scholarly contributions related to intellectual property are directed to the needs of faculty members including two books, Technology and Higher Education: Approaching the 21st Century and Fair Use Guidelines for Educators. MAGNA ONLINE SEMINARS Need tech help? Please visit: www.magnapubs.com/about/customer_service.html#Web_Seminars or call Customer Service at (800) 433-0499 ext. 2 � 2012 Magna Publications Inc. The information contained in this online seminar is for professional development purposes but does not substitute for legal advice. Specific legal advice should be discussed with a professional attorney. To make this program available to all your faculty and staff, contact Magna�s Customer Service department at 1-800-433-0499 ext. 2 and ask about our Campus Access License. Thank you for participating in today�s program. Additional information about Magna is available at www.magnapubs.com. Join us in the future for our other informative online seminars: � September 19, 2012: State Authorization: Strategies for Online Providers: Part 2 � September 26, 2012: Implementing New Technology to Extend Learning � October 25, 2012: Five Free Tools for Connecting & Engaging Online Learners Please visit www.magnapubs.com for a complete list of Magna Online Seminars. Magna Corporate Overview Magna has been a valued knowledge and information resource within the higher education community for more than 30 years. We publish five national newsletters: � The Teaching Professor � Academic Leader � Recruitment & Retention in Higher Education � Distance Education Report � Online Classroom In addition, we produce student leadership and faculty development conferences, numerous online seminars, and online courses. August 13, 2012 MAGNA PUBLICATIONS PRESENTS: Sponsored by: 2 Copyright � 2012 Linda K. Enghagen Our presenter: Linda K. Enghagen, J.D. Professor Isenberg School University of Massachusetts Copyright � 2012 Linda K. Enghagen 3 4 Requisite disclaimer The information contained herein along with any questions and answers are for educational purposes only. Neither is a substitute for legal advice and neither is to be construed as the rendering of a legal opinion. Copyright � 2012 Linda K. Enghagen A faculty member brings a ragged photocopy of a book chapter to the library to be scanned and loaded to the e-reserves for enrolled students. Is this a fair use? 5 What do you think? Copyright � 2012 Linda K. Enghagen apt A.Yes, it is only 1 chapter. B. No, it is a copy of a copy. C.It depends. 6 Polling Question #1: Is this a fair use? Copyright � 2012 Linda K. Enghagen You�ll be able to develop institutional policies consistent with the court�s ruling Copyright � 2012 Linda K. Enghagen 7 By the end of this online seminar: Copyright � 2012 Linda K. Enghagen 8 1.Bigger picture 2. What�s in a name? 3. Just the facts 4. Seven deadly sins 5. Lessons, implications & unknowns Bigger picture 9 1. Copyright � 2012 Linda K. Enghagen 10 U.S. Constitution Copyright � 2012 Linda K. Enghagen Congress shall have [the] power� To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries� Article I, Section 8, Clause 8 Ancient History Modern Era Copyright � 2012 Linda K. Enghagen 11 It�s about change 12 Whose toner, paper, time & dime? Copyright � 2012 Linda K. Enghagen What�s in a name? 13 2. Copyright � 2012 Linda K. Enghagen Plaintiffs: Cambridge University Press, Oxford University Press, Inc., Sage Publications Recruited & Underwritten by: Copyright Clearance Center, Assoc. of American Publishers Defendants: Carl V. Patton, i/h/c/a President; Ron Henry, i/h/c/a Provost; Charlene Hurt, i/h/c/a Dean of Libraries; J.L. Albert, i/h/c/a Provost for Info. Sys. & Tech.; Members of Board i/t/c/a Trustees 14 Plenty! Copyright � 2012 Linda K. Enghagen Sovereign Immunity � GR = can�t sue states in federal court � Exception = sue official �in his/her capacity as� + ask for injunction (not $) 15 So what � who cares? Copyright � 2012 Linda K. Enghagen Can Sue State Employee/Official Personally Committed Illegal Act � Marketing Information Masters, Inc. v. The Board of Trustees of the California State University System, a public entity; and Robert A. Rauch, an individual � Board of Trustees = case dismissed � Robert A. Rauch = allowed to proceed 16 So what � who cares? Copyright � 2012 Linda K. Enghagen With the assistance of an instructional designer, a faculty member scans and posts an entire book (still in print) to a course learning management system for students to use instead of requiring them to purchase it. Who will likely be sued in the resulting copyright infringement lawsuit? 17 What do you think? Copyright � 2012 Linda K. Enghagen A. The instructional designer, personally. B. The faculty member, personally. C.Institutional officials, in their official capacities. D.All of the above. 18 Polling question #2: Who will likely be sued? Copyright � 2012 Linda K. Enghagen 19 3. Just the facts Copyright � 2012 Linda K. Enghagen �� systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works�through a variety of online systems and outlets utilized�for the digital distribution of course reading material�without the requisite authorization and appropriate compensation to the copyright owners of such materials.� 20 According to the publishers Copyright � 2012 Linda K. Enghagen � ~600 courses as of 02/29/08 � >6,700 works posted electronically, most without permission � e-reserves system not password protected 21 According to the publishers Copyright � 2012 Linda K. Enghagen GSU � E-reserves secured � Revised copyright & fair use policy # CLAIMS � > 6,700 . 99 � 75 litigated � 74 analyzed � 1 repeated use Copyright � 2012 Linda K. Enghagen 22 By the time By the time it got to trial � Seven deadly sins 23 4. Copyright � 2012 Linda K. Enghagen 1. Posting to unsecure sites 2. Posting without permission and payment 3. Posting semester-to-semester 4. Posting pursuant to overly generous policies 24 Seven ways to violate fair use Copyright � 2012 Linda K. Enghagen 5. Failing to enforce overly generous policies 6. Creating free course packs instead of purchasing collections & anthologies 7. Encouraging & facilitating infringements 25 Seven ways Seven ways to violate fair use Copyright � 2012 Linda K. Enghagen Copy 26 Fair use framework Copyright � 2012 Linda K. Enghagen Valid Copyright? No Dismissed Yes Fair Use? 1. Purpose & character of use A. Teaching & scholarship by nonprofit educational institution B. Favors fair use & GSU in all instances 27 Fair use factors Copyright � 2012 Linda K. Enghagen 2. Nature of copyrighted work A. Nonfiction & educational B. Favors fair use & GSU in all instances 28 Fair use factors Copyright � 2012 Linda K. Enghagen 3. Portion used--amount & substantiality A. 9 or fewer chapters & not �heart of work� i. 10% of total pages ii. Pages = all pages (e.g. index, forward, title page, etc.) B. 10 or more chapters & not �heart of work� i. 1 chapter or its equivalent C. TBD case-by-case 29 Fair use factors Copyright � 2012 Linda K. Enghagen 4. Impact on market A. Market for entire book B. Permissions i. Readily available, reasonable price, convenient format? C. TBD case-by-case 30 Fair use factors Copyright � 2012 Linda K. Enghagen A faculty member wants to post 2 excerpts from a 15-chapter nonfiction book to e-reserves for enrolled students only. Neither is the �heart of the work.� Each excerpt is part of a chapter. One excerpt is 15 pages and the other is 11 pages. The book is 350 pages, and the average chapter is 33 pages. 31 What do you think? Copyright � 2012 Linda K. Enghagen A.Yes, because it takes excerpts from 2 chapters (not just 1). B. No, because the total pages posted (15+11=26) is less than the length of an average chapter (33 pages). C.I don�t know. 32 Poll #3: Does this violate fair use? Copyright � 2012 Linda K. Enghagen 33 Results of case-by-case analysis Copyright � 2012 Linda K. Enghagen 74 Alleged Infringements No valid copyright 16 De minimis (hits) 10 No digital permissions program 19 Excerpt w/i fair use 24 Fair use violation 5 Total 74 1. Posting to unsecure sites  Fixed by GSU 2. Posting without permission & payment  5 violations 3. Posting semester-to-semester  �impractical, unnecessary limitation� 34 How sinful was GSU? Copyright � 2012 Linda K. Enghagen 4. Overly generous policies  Rejected �Guidelines for Classroom Copying�  Yes � didn�t limit to 10% & 1 chapter rules 5. Failure to enforce  More or less � though not directly 35 How sinful was GSU? Copyright � 2012 Linda K. Enghagen 6. Free course packs instead of buying them  Didn�t directly address  Some instances: no required texts but excerpts within limits = fair use 7. Encouraging & facilitating infringements  GSU made good faith effort to comply 36 How sinful was GSU? Copyright � 2012 Linda K. Enghagen Fair use is finally resolved! We now know that all we need to do is stay within the 1 chapter or 10% limit! 37 What do you think? Copyright � 2012 Linda K. Enghagen A.Yes, we finally got a court ruling that is useful and easy to follow. B. No, this ruling applies only to nonfiction books (i.e. not to fiction, journals, film, etc.) C.I don�t know, I�m still confused. 38 Poll #4: Do we have clear guidelines? Copyright � 2012 Linda K. Enghagen 39 Lessons, implications & unknowns 5. Copyright � 2012 Linda K. Enghagen 1. Ruling limited to nonfiction books � Limits likely even smaller for creative works 2. Uses = substitutions � Not transformational � If transformation = different result? 40 As a matter of law Copyright � 2012 Linda K. Enghagen 3. Hits matter � Few hits = de minimis = no violation � eReserves tracked hits�uLearn didn�t 41 As a matter of law Copyright � 2012 Linda K. Enghagen 4. More digital permissions programs 5. More attention to authors� copyright paperwork 6. Publishers not required to disclose what�s popular and what�s not � Assume negative impact on market if permissions program available 42 As a practical matter Copyright � 2012 Linda K. Enghagen 7. More test cases to come? 8. Review and revise policies and checklists for compliance 43 Institutional Institutional due diligence Copyright � 2012 Linda K. Enghagen 9. Disseminate to faculty members, librarians, instructional designers, etc. � Offer training opportunities 10. Provide guidance for checking on the availability of permissions 44 Institutional due diligence Copyright � 2012 Linda K. Enghagen 1. Key Rulings at a Glance 2. GSU�s Updated Policy and Checklist 3. Institutional Due Diligence 4. Useful Web Sites 45 Supplemental materials Copyright � 2012 Linda K. Enghagen Linda K. Enghagen, J.D., Professor lke@isenberg.umass.edu http://www.copyrightcompliance .net 46 Thank Thank you for joining us! Copyright � 2012 Linda K. Enghagen 47 Our evaluation form is located here: https://www.surveymonkey.com/s/81312 Copyright � 2012 Linda K. Enghagen We�d like to know what you think!