Copyright and Reserves The Emerging Nature of Transformative Copyright Jud Copeland Graduate Library Media Program University of Central Arkansas.

Copyright and Reserves The Emerging Nature of Transformative Copyright

Jud Copeland Jud Copeland Graduate Library Media Program Graduate Library Media Program

University of Central Arkansas University of Central Arkansas

Reserves and electronic reserves (e-reserves) provide a way for instructors to share content with students. This content often includes class notes along with copyrighted materials such as books, book chapters, journal articles and other works purchased by your institution's library. With e-reserves content is posted electronically and available to students online.

Traditional Paper Reserves

Materials placed on traditional reserve are available to students in paper form at the institution's library. Your librarian can place purchased materials on reserve without obtaining copyright permission. However, making multiple copies of these materials and placing those copies on reserve does require copyright permission.

In most cases, weigh the fair use factors as they apply to your particular situation. While the Copyright Act does not specifically address library reserves, standards do exist for paper-based reserves. These standards are based on the Copyright Act's fair use provision. When evaluating copyright requirements for library reserves

The American Library Association (ALA) has endorsed the following standards for sharing copyrighted material through paper-based reserves:

The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course, taking into account the nature of the course, its subject matter and level. See 17 U.S.C. § 107(1) and (3).

The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same materials. See 17 U.S.C. § 107(1) and (3).

The material should contain a notice of copyright. See 17 U.S.C. § 401.

The effect of photocopying the material should not be detrimental to the market for the work. (In general, the library should own at least one copy of the work.) See 17 U.S.C. § 107(4).

Electronic Reserves

Unless it is covered by fair use, public domain or another specific copyright exception, anything posted to an electronic environment requires copyright permission prior to posting. The "first use is free" standard invoked by many libraries is not part of the Copyright Act or any subsequent rulings or provisions.

There are no widely accepted standards for e-reserves, although the 1996 Conference on Fair Use (CONFU) endeavored to establish some. The Association of American Publishers' (AAP) Frequently Asked Questions on E-Reserves and Recommendations for Applying Fair Use in the Development of Electronic Reserves Systems—developed by several leading U.S. Library Associations—represent two of many different answers to the question of "how should academic institutions address e-reserves?"

In short, both groups recommend that academic institutions explore a range of e-reserve practices and select a combination that illustrates respect for the law and the institution's overall position on copyright rights. When evaluating practices, the institution should also consider its dual role as both a copyright holder and a user of others' copyrighted works. Whatever guidelines your institution chooses to adopt, Copyright Clearance Center's compliance solutions provide quick and easy copyright permission, ensuring the lawful use of content in e-reserves and other types of use.

Following is a summary of e-reserve policies followed by many academic institutions possessing comprehensive copyright practices.E-reserve materials should be limited to small portions—usually single articles or chapters, or less—of copyrighted works.E-reserves should not be used as a substitute for the purchase of books or subscriptions, or other materials required for educational purposes.In a situation where a coursepack would require copyright permission, e-reserves in the same context (instructor, course) would also require copyright permission.

If the material does not pass the fair use test in paper, it will not pass the fair use test in electronic format.When switching from paper use to electronic use permission must be obtained for the material in the new format.Copies of materials placed on e-reserve should be made from originals—either printed materials or authorized copies—owned by the institution or instructor.E-reserves should be accessible (by password or other control) only by the students in a single class, faculty and staff associated with the class, and the administrator or IT person responsible for maintaining e-reserves.

E-reserves for a particular class should be taken down or made inaccessible at the end of that term of the class.Materials on e-reserve should contain both the copyright notice from, and a complete citation to, the original material.Digital licenses between content providers and academic institutions must be carefully reviewed to determine the extent material may be used in an e-reserve context. Copyright © 2005, Copyright Clearance Center, Inc.

While many of us assume that copyright is designed to protect the rights of owners, it is also meant to protect the rights of users in order to promote creativity, innovation, and the spread of knowledge.

Many educators may not realize that our own reasoning and critical judgment are core components of fair use and copyright law does not really specify how to apply fair use, and that point gives the fair use doctrine a flexibility that works to our advantage.

What about fair use “guidelines?” We often rely on charts that describe how we can use 10% of this kind of work or use 30 seconds of another type, but the unfortunate result of these documents is that they actually restrict our use of copyrighted materials in ways that the law never intended. In fact, quite the opposite is true.

Fair Use Guidelines to Educational MultimediaFair Use Guidelines to Educational Multimedia

Motion Media 10% or 3 minutes

Text 10% or 1000 words

Poetry 250 words; no more than 3 poems by same author

Music, Lyrics, Video 10% or 30 seconds

Photos & Illustrations a single illustration or photograph; 10% or 15 images in a collection; no more than 5 items by a

single artist or photographer

Numerical Data Sets 10% of 2500 fields or cells

Print Copies of an article, story or essay that are 2,500 words or less or excerpts up to 1,000 words or 10%

of the total work.

Helps us know how much to use Always use the smallest amount of each:

Copyright Infringement is not worth itCopyright Infringement is not worth it– In the US individual students have received notice of legal action for

downloading music unless they pay substantial royalties to music copyright owners.

Case 1: In 2009, a former Boston University student was ordered by a jury to pay damages amounting $675,000, to be split between four major record labels, for illegally downloading and sharing 30 songs online as the result of a then-two year trial between Tenenbaum and the record labels.

Case 2: Richard O’Dwyer ran a website called TVShack until 2010 when he took the website down following a visit from police and US officials.

– The website provided links to other sites where pirate copies of films and TV programs could be downloaded.

– He was charged for breaching the USA copyright laws and faces jail time and large monetary fees

– The TVShack website generated "over $230,000 in advertising revenue" until the domain name was seized in June 2010

• BMG Entertainment8750 Wilshire Blvd.Beverly Hills, CA 90211

• Sony Music Licensing2100 Colorado Ave.Santa Monica, CA 90404

• Universal Music Enterprises100 Universal City Plaza, Building 1440, 13th FlUniversal, City 91608

• Virgin Records338 N. Foothill RoadBeverly Hills, CA 90210

Record Company Contacts (The Copyright Society of the USA, 2007)

• Columbia Pictures10202 West Washington Blvd.Culver City, CA 90232

• Dreamworks Pictures100 Universal City PlazaBuilding 477Universal City, CA 91606

• Swank Motion Pictures10795 Watson RoadSt. Louis, Missouri 63127-1012

• Touchstone Pictures/Disney500 S. Buena Vista St.Burbank, CA 91521

• Warner Bros. 400 Warner Blvd.Burbank, CA 91522

• Universal Pictures100 Universal City PlazaUniversal City, CA 91608

Film Clip Clearance Contacts (The Copyright Society of the USA, 2007)

• ABC News147 Columbia Ave.New York, NY 10023

• CBS News524 West 57th Street New York, NY 10019

• NBC News30 Rockefeller PlazaNew York, NY 10112

• NBC Studios330 Bob Hope DriveBurbank, CA 91523

• Nickelodeon1515 BroadwayNew York, NY 10036

• Walt Disney Television Animation500 S. Buena Vista St.Burbank, CA 91521

Television Clip Clearance Contacts (The Copyright Society of the USA, 2007)

Critics now argue that the guideline charts that educators use are unduly restrictive. How we apply our rights for fair use depends not on how much of a piece of copyrighted work that we use, but instead on the ways in which we use it.

The change in our thinking about copyright can be stated quite simply: For many educators, the fundamental notion is those guidelines are not the law. Indeed, the guidelines were constructed mainly through the work of the media companies themselves, and they do not accurately reflect all the rights that users have when transforming copyrighted materials.

Copyright law, as many of these previous guideline documents tend to suggest, is not static with certain limits on the kind or amount of material used. Instead, fair use requires judgment.

Now…think about copyright and fair use through a new lens: transformative use.

What is Transformative Use?

The key to applying fair use is in understanding the concept of “transformative” use, and critics argue that this is central to the fair use provision of United States Copyright Law of 1976. Educators are probably familiar with the “four factors” of fair use, which 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.

These are the factors that have guided the development of many of the copyright guidelines noted above. But, there is more to fair use than just determining whether the use of a work aligns with these four principles.

In particular, understanding the concept of transformative use is essential if we are to know when and how to apply fair use in our own work and, more importantly, if our students are to apply it to their own work. In order for us to use copyrighted materials, we need to apply a set of reasoned questions about how and why we are using the work.

In short, to use copyrighted materials under fair use provisions, the benefit to society needs to outweigh the costs to the copyright holder. If a copyrighted work is simply retransmitted, then it is a violation of copyright law. But, if the user “transforms” the material in some way, repurposing it in a new media composition, for instance, then fair use likely applies.

Based on this concept, there are two central questions to ask about transformative use:

1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

If we as educators can invite our students to think critically about their use of copyrighted materials in the process of creating their own digital compositions, and if we can help them understand what it means to build on the work of another in a transformative way, then we can open up thought-provoking discussions about how we compose in the 21st century.

Inviting Students to Compose Multimedia with

Fair Use and Transformative Copyright in Mind

Because media literacy education cannot thrive unless learners themselves have the opportunity to learn about how media functions at the most practical level, educators using concepts and techniques of media literacy should be free to enable learners to incorporate, modify, and re-present existing media objects in their own classroom work.

Both are a violation of the law as well as the norms of academic honesty. In fact, students’ use of copyrighted material should not be a

substitute for creative effort.

This principle encourages teachers and students to think about how they can repurpose existing

media for their own compositions. However, it is not an excuse for simply copying and pasting the

work of others, or taking it whole without changing it in any way from the original.

Students should be able to understand and demonstrate, in a manner appropriate to their developmental level, how their use of a copyrighted work repurposes or transforms (recontextualizes) the original.

The key to transformative use is thinking critically about how the original material is employed in the new work, and critics argue that addressing fundamental questions about how and why to use copyrighted work is where teachers can help their students most. This process of critical engagement is important in developing a strong classroom community, and in creating media-savvy students.

Given that students are creating products, this inevitably leads to questions about assessment. We need to measure more than the superficial qualities of form and to investigate more fully

the understanding of how and why students are repurposing and creating content in new ways.

Indeed, there is a form/content dynamic here. If all we assess is the form, then we are doing

students a disservice.

We cannot just assess the form of the work, we need to assess the content of the work. Do not

just count words, slides, or images used, but engage students in broader discussions about

the purpose, audience, and effectiveness of their work.

As we encourage students to create new media compositions, and use existing copyrighted

materials to do so, we need to approach their work with the critical lens that fair use allows.

Through discussions of fair use and the transformative nature of their own work, we ask

them to be critical and creative thinkers, engaging them in discussions with one another about the ways in which they remix the work of

others.

Also, we need to reiterate that fair use does not mean unlicensed distribution of copyrighted

materials

Teaching our students how to repurpose copyrighted materials in a transformative manner is the essence of applying fair use

guidelines, and it is an imperative skill when teaching them how to compose with new

media.

The concept of fair use has the power to transform our teaching in a digital age, and both

we and our students will be better readers, writers, and thinkers when we adopt a fair use

approach in our classrooms.

The concept of fair use has the power to transform our teaching in a digital age, and both

we and our students will be better readers, writers, and thinkers when we adopt a fair use

approach in our classrooms.

Adapted with permission from:

Troy HicksCCCC-IP K-12 RepresentativeAssistant Professor of EnglishDirector, Chippewa River Writing ProjectCentral Michigan University

Renee Hobbs, Founder of Temple University's Media Education Lab