The World Wide Web has made it easy for anyone to be a publisher. Although it is relatively simple to publish or republish text, images and music on our own websites, it is not necessarily legal. Copyright law of the United States (1790) is based on the Statute of Anne which granted authors and inventors a fourteen year term of exclusive ownership with an option to renew for an additional fourteen years. Before the Statute of Anne, English law amounted to censorship of content and control of distribution by printers. Copyright law has come a long way since the Statue of Anne, and experienced many revisions, of which the Copyright Act of 1976 has been the most comprehensive. Writers and other creators of original works enjoy a set of exclusive rights that are granted by the Act, Title 17 of the U.S. Code, and only the creators can relinquish the rights to reproduction, adaptation, distribution, public performance, and public display.
The Act was accompanied by the Report of the House Committee on the Judiciary
(H.R. No. 94-1476), which included the Agreement
on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions.
These and many other fair use guidelines are available on the George
Mason Copyright Office website to provide
assistance in determining fair use. Quantitative guidelines are popular and
well-used because many people "lack the experience needed for good judgment"
(Orlans, 56). None of these guidelines has the force of law, but they can help
us to decide whether our uses of materials found on the Internet are likely
to be defensible as fair.
In Dean Taciuch's article, "Give
It Away Before Someone Takes It (and Tries to Sell It Back to You)," such
guidelines are given an unnecessarily strict reading. Guidelines are not laws
and are not University policies, but they are tools for assessing whether or
not your use is fair. The fair use statute, §107 of Title 17, suggests
circumstances under which certain uses of copyrighted works could be defended
as fair uses, provided that four factors are considered before a determination
is made.
The famous four factors are purpose, nature, amount,
and effect.
Educational purpose (as in multiple copies of an article for classroom
use) is more favorable than a commercial purpose. The factual nature of
the material being used (versus fiction) also weighs in favor of fair use.
A small amount,
versus the entire book, novel, play, or journal is also considered fair, as
long as the "small amount" is not judged as too substantial a portion
(the guts) in relation to the whole. And finally, if there is no adverse effect on
the market for the whole, then the educational use of an insubstantial portion
of factual material can be defended as a fair use.
The Copyright Act of 1976 was written in the advent of the invention and wide-spread
use of the photocopy machine. In 1978, the Agreement on
Guidelines was endorsed
and adopted as written by many educational institutions nationwide, including
George Mason. The University of Wisconsin, Madison, revised the guidelines
to better suit the needs of higher education, as did the American Library Association.
As a result of a law suit in the early 1980s brought by the American Association
of Publishers against New York University, NYU also adopted the Agreement
on Guidelines as policy.
In the 1990s, at the conclusion of almost three years of meetings, the Conference
on Fair Use (CONFU, 1997) presented guidelines for Distance Learning, Interlibrary
Loan, Digital Images, Multi-Media and E-Reserves, most of which were never
widely endorsed. Nevertheless, many universities apply them in lieu of making
individual fair use assessments. The CONFU guidelines are suggestions for staying
within fair use based on the 1976 statute.
At the time of the 1976 Copyright Act, high-quality digital reproduction of
video and audio was not yet widely practiced. To accommodate new technologies
such as web publishing, legislation was passed in 1998, the Digital Millennium
Copyright Act, known as DMCA. Although there was hope that it would provide
for fair use of digital materials, instead it spells out stipulations by which
Internet service providers (ISPs) are bound in order that they be eligible
for reduced liabilities for the actions of their patrons. The Sonny Bono Term
Extension Act, also passed in 1998, amends § 102 adding twenty years of
copyright protection, which means that no works will automatically fall into
the Public Domain until 2019. It does not affect works already in the Public
Domain, that is, any work published in 1922 or before. This does not mean that
every creation published between 1923 and the present is protected by copyright,
but the major corporate producers, like the Disney Company, made all scheduled
copyright renewals prior to 1978 and enforce them regularly. The Technology,
Education, And Copyright Harmonization Act (TEACH, 2002) amended § 110
(2) providing fair use of certain works in electronic access, but only for
educational use in a Distance Education environment.
Items used for Distance Learning under the provisions of the TEACH Act must
be integral to the course. Since course reserves are traditionally supplemental
readings, Electronic reserves (E-Reserves) are specifically excluded from TEACH,
regardless of their traditional one copy per student history. TEACH specifies
that for a Distance Learning course, comparable amounts of copyrighted works
may be put up electronically. Students can make a single, personal print copy
(print-out) from a web page, but not a digital copy (download). Some digital
downloading is prevented by the software, but not always. Students are not
required to destroy their print copies at semester's end. TEACH says
that ISPs should install "measures
that reasonably prevent – (aa) retention . . .[and] (bb) unauthorized
further dissemination." The institution is not required to guarantee
that it cannot be "cracked."
The fair use guidelines are just that, guidelines. They are aids for the interpretation
of the statute. There is nothing in the guidelines, no matter which ones you
read, to prevent your including a passage from a novel, a film clip, (or a
still), or a photo from an art exhibit for use in your online review or for
educational purposes. These uses fall under "criticism, comment, news
reporting, scholarship…"
Dean asks, "whose rights are being protected by copyright?" It
is the publisher's right to make a profit on the distribution and sale
of works whose authors have contracted with them for marketing and distribution
of their works. Even though the author of the article for the scholarly journal
is not paid, it is a commercial venture for the publishers, since they sell
subscriptions to libraries to ensure broad access. GMU Libraries license many
Electronic Journals using Library funds, (none of which comes from a student
technology fee). These licensed electronic databases make it even easier to
access thousands of journal titles, at the click of a mouse.
Publishers want the copyright protection to limit competition with other websites
that might otherwise display your work, too. When authors or scholars want
to be widely read, they sell their work to a publisher, whose rules must be
followed. Scholars who contribute to academic journals almost always forfeit
their exclusive rights in exchange for the distribution of the article by a
prestigious publisher.
Publishers have a very narrow view of fair use, especially of their own titles.
Naturally they restrict their authors' uses of others' copyrighted
works, reflecting their low tolerance for any risk of an infringement suit.
Many publishers require their scholars to obtain permission for any use of
another's work, no matter how likely it is to be a fair use. The authors
who wish to make comment and criticism are seemingly held hostage by the publishers
who hold the purse strings. For this reason, some academics are by-passing
the conventional publisher in favor of online venues.
However, most authors are not technicians, publishers, marketing agents or
publicists. Therefore, publishers will probably enjoy many more years of commercial
gain for their part in promoting talented writers and gifted scholars. We are
all rights holders, and we all have choices about how, when, and with whom
to share these exclusive rights. Distribution facilitators should be compensated
for their experience and expertise. Authors have the option to donate freely
for educational purposes.
The fair use guidelines found on Mason web sites are for educational fair use
which does not include any commercial publication. However, if a student wants
to publish a thesis, only the inclusion of dozens of copyright protected photographs,
poems, or other complete works would pose a problem because the number would
probably be considered beyond a "fair use for criticism, comment, or
scholarship…" etc. This is not to say that she could not reduce
the number of photographs or request permission to use the photographs.
Fair use is almost always possible as a defense for educational use. The statute
is purposefully vague – its flexibility is valuable. At Mason, we interpret
rather liberally, much more so than some of my colleagues across the country
who will not copy a professor's own work without the permission from
the publisher (book or journal) -- something we do quite regularly here.
The DMCA did NOT alter the fair use statute. Fair use will only be lost if
we stop applying its principles to defend our educational uses. As Siva Vaidhyanathan
says in Copyrights and Copywrongs " …a leaky copyright system works
best…[it] allows people to comment on copyrighted works, make copies
for teaching and research, and record their favorite programs for later viewing…But
when constructed recklessly, copyright can once again be an instrument of censorship,
just as it was before the Statute of Anne" (184).
Sources
Copyright Act of 1976 <http://www.copyright.gov/title17/>
Agreement on Guidelines, <http://www.copyright.gov/circs/circ21.pdf>
Harold Orlans, “Scholarly Fair Use: Chaotic and Shrinking” Change (Nov/Dec, 1999): 56.
CONFU and guidelines,<http://www.utsystem.edu/ogc/intellectualproperty/confu2.htm>
DMCA, <http://www.copyright.gov/title17/92appv.html>
Term Extension Act, <http://www.copyright.gov/title17/92chap3.html#304>
TEACH Act, <http://www.lib.ncsu.edu/scc/legislative/teachkit/teach.pdf>
Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, (New York: New York University Press, 2001)
