Tag Archives: fair dealing

Five Videos from ARL Libraries Celebrate Fair Use and Fair Dealing

*This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Cross-posted from ARL News*

In honor of Fair Use/Fair Dealing Week 2016, five ARL member libraries have created videos celebrating the important doctrines of fair use and fair dealing—essential limitations and exceptions to copyright that allow the use of copyrighted materials without permission from the copyright holder under certain circumstances. Fair use and fair dealing are flexible doctrines, allowing copyright to adapt to new technologies and facilitate balance in copyright law.

The University of Tennessee, Knoxville, Libraries highlights in a two-minute video its collection of Great Smoky Mountains postcards and digitization of this collection under fair use. Holly Mercer, associate dean for research and scholarly communication, notes that the University of Tennessee relied on the Code of Best Practices in Fair Use for Academic and Research Libraries to evaluate the fair use case to digitize and make the postcards available online. She clearly explains the transformative nature of making this special collection available digitally.

Ann Thornton, university librarian and vice provost of Columbia University, explains in a four-minute video how fair use has contributed to allowing “quality” access to scholarly materials. She discusses court cases from the past year that provide clear direction in allowing the robust application of fair use, including Authors Guild v. Google and Lenz v. Universal Music. Thornton also talks about the importance of open access and why it must act in tandem with fair use.

Texas A&M University Libraries has created a two-minute video explaining what fair use is and how, rather than creating strict rules about fair use, the university libraries has empowered faculty to determine what is fair use in the context of their own classrooms. The libraries thinks of fair use like a muscle—“if you don’t use it, you lose it.”

University of Massachusetts (UMass) Amherst Libraries highlights in a one-minute video its W. E. B. Du Bois collection as an example of one of its special collections that it has digitized and made available online relying on fair use. This collection is used in more than 30 courses at UMass alone. The Du Bois collection is just one of 100 other collections that are available via the libraries’ digital repository.

Gerald Beasley, vice-provost and chief librarian at the University of Alberta, emphasizes in a four-minute video the balance of rights in copyright. University of Alberta’s impact on Alberta’s economy is estimated at $12.3 billion and Beasley points out that access to copyrighted material is essential to scholarship because of the need to build upon works that came before. He also notes that a “liberal interpretation and application of fair use and fair dealing should be encouraged, especially for universities.”

Happy Fair Use/Fair Dealing Week!

Today, we’re kicking off Fair Use/Fair Dealing Week 2016!

While we believe every week is fair use and fair dealing week, February 22-26 is a time to celebrate the important doctrines that provide essential balance in copyright law.  ARL has a number of resources that will be released this week, so stay tuned!  Last year, a number of great resources were created and shared including an infographic, podcasts, a comic book, blog posts and more.  A summary of some of the highlights from Fair Use/Fair Dealing Week 2015 is available here.

Check out all the resources and events (which will updated as the week progresses) herel.  Don’t forget to follow ARLpolicy and FairUseWeek on Twitter.

Canadian Author’s Collective, Access Copyright, Dealt Major Blow; Future Uncertain

*This is a guest blog post by Bobby Glushko, Head of the Scholarly Communications and Copyright Office for the University of Toronto Libraries*

On May 22, 2015, the Copyright Board of Canada certified a surprisingly low tariff for copying undertaken by the full time professional staff of provincial governments, such as legislators, aides, and other provincial employees. The tariff, 11.56¢ per employee, per year, for the 2005- 2009 period and 49.71¢ per employee, per year, for the 2010-2014 period, is vastly lower than the $15 tariff initially proposed by Access Copyright. In its decision, the Board supported several interesting copyright theories which may have long term significance for libraries in Canada.

It has long been the custom that Canadian institutions would hold licenses with one or many of the various rightsholder collectives to cover their uses of copyrighted content. These licenses were generally paid on a per employee basis, and were set by either negotiation or through the operation of the Copyright Board of Canada, an administrative body established by Parliament to, among other things, issue tariffs for the use of copyrighted content. One of the major collectives issuing these licenses is Access Copyright, a collective representing authors, publishers, and visual artists. Over the past decade, the costs of the Access Copyright license, a license which allows for institutions to copy significant portions of published works in their licensing repertoire, and the price of the tariff have risen dramatically, from a low of $3 per employee to as high as a proposed $45 per employee. With such uncertainty in the market, and a substantial realignment of the law, Canadian universities and colleges have been forced to re-examine the value of the Access Copyright license, and many of them have chosen to forgo purchasing a license or accepting the tariff, choosing instead to handle rights clearances in house, often in their libraries, and to license content on a transactional basis where necessary.

These changes have not gone unchallenged, however.   In April 2013, Access Copyright sued York University, claiming that by operating without an Access Copyright license or working under a tariff, York was “authorizing and encouraging copying that is not supported by the law.” In their claim, Access Copyright argued that due to the presence of copyright infringement at York, the University needed to be subject to the Board’s tariff, and could not operate outside a license arrangement. A similar suit was brought by Copibec, the comparable author’s collective from Quebec, against Université Laval as well.

While the litigations are still ongoing, this recent action by the Board calls into question their viability and even the continued existence of Access Copyright. Projected revenues from the proposed tariff were around twenty-five million dollars over the covered period; the issued tariff provides for approximately three hundred seventy thousand dollars over the same period, an amount that will likely not even cover the cost of Access Copyright’s action before the Board to obtain the tarriff. As devastating as the financial loss is, the loss on substantive legal arguments appears to be even worse. While the Board’s rationale is not binding on the courts, judges have tended to give deference to the Board as a finder of fact. In this current tariff proceeding, the Board ruled against Access Copyright on several legal arguments, two of which are expanded upon below.

First, the Board rejected the argument that Access Copyright had the capacity to license all published works from which it was not explicitly excluded from licensing, even in the absence of a formal arrangement with a rightsholder. While this may seem obvious in a non-extended licensing jurisdiction, that is, a jurisdiction where all types of published works are subject to a non-voluntary licensing regime, it was in fact a longstanding claim by Access Copyright that they had the capacity to do this. By rejecting this argument, the Board dealt a huge blow to any litigation involving Access Copyright’s repertoire, and essentially posed an existential threat to the organization.

Second, and equally as important, the Board flatly rejected Access Copyright’s interpretation of the scope of fair dealing in Canada. Since the Supreme Court of Canada’s series of rulings on copyright law in 2012, which have been termed the Copyright Pentalogy, the scope of fair dealing has been subject to a fairly fierce debate. Nearly all Canadian universities have adopted fair dealing guidelines which state that the copying of 10% or one chapter of a book, or one article from a journal issue, would generally tend to be fair for the purposes of education, teaching, or private study, given the assumption that the other fair dealing factors do tend towards fairness in the context of higher education. In this action before the Board, Access Copyright advanced a theory of the scope of fair dealing that was far more limited; a theory which the Board wholeheartedly rejected in favour of a scope of fair dealing closely aligned with the commonly adopted university guidelines. The implications of this for the ongoing litigation are tremendous, as a rejection of the fair dealing guidelines adopted across Canada is an essential element of Access Copyright’s legal strategy.

Given the current climate, where most Universities and Colleges are choosing to operate outside of a tariff or a license with Access Copyright, the Board’s decision comes as yet another huge setback in what has been a series of losses for the collective. Perhaps this decision, rather than being the next chapter for Access Copyright, may be an indication that its long story is coming to an end.

If you’re interested in these issues, come join us at the Copyright in Canada Conference on October 2nd 2015 in Toronto, Ontario.

Highlights from Fair Use Week 2015

From February 23-28, 64 organizations and institutions participated in Fair Use Week 2015, an annual celebration of the important (and flexible) doctrines of fair use and fair dealing. Participants included universities, libraries, library associations and a number of organizations such as the Electronic Frontier Foundation, Creative Commons, New Media Rights, Public Knowledge and the R Street Institute. These participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use Week provided a time to promote and discuss the opportunities presented, celebrate successful stories and explain these doctrines.

Each day, new blog posts and resource materials were produced. Daily recaps are available for each day of Fair Use Week and additional resources are available on the website. Over the course of the week, more than 90 blog posts, 13 videos, 2 podcasts, a comic book, an infographic, and several other great resources were released. Below are some highlights from the week:

Resources:

ARL released the Fair Use Fundamentals Infographic, explaining what fair use is, why it is important, and who uses fair use. It also provides several examples of cases where courts have upheld fair use. ARL also produced Fair Use: 12 Myths and Realities.

Jonathan Band highlighted just how often fair use is employed on a daily basis through a sample day in the life of a legislative assistant.

Kyle Courtney of Harvard University released a comic book entitled, “The Origin of U.S. Fair Use.”

Public Knowledge hosted a Reddit AMA with cartoonist Nina Paley discussing how art is made and the role of fair use.

Videos:

Professor William Fisher (Harvard Law School) released two lectures from his Copyright X course: Lecture 9.1, Fair Use: The History of Fair Use and Lecture 9.2, Fair Use: Fair Use Today. These are excellent lectures explaining the doctrine.

Several videos were produced during the week. Fred von Lohmann explains how fair use enables technologies used every day. The Media Education Lab posted a fair use music video.

The Association of College and Research Libraries hosted a webinar featuring Kevin Smith of Duke University, “Does Fair Use Really Work?” The archive of the webinar is available here.

American University Washington College of Law’s Program on Information Justice and Intellectual Property hosted an event, “Presenting the Statement of Best Practices in Fair Use of Collections Containing Orphan Works.” The archived video of the event is available here.

Duke University, hit by inclement weather, delayed its event Fair Use of Art & Beyond, but the video of the event (including slides) is now available here.

In Canada, Bobby Glushko (University of Toronto) produced several videos, including one on the “Copyright Pentalogy,” providing an overview on five Canadian Supreme Court cases that clarified copyright law. Christine Jewell (University of Waterloo) has a great explanation on what fair dealing is.

Podcasts:

Two podcasts were released during the week. TechDirt devoted an entire episode to the topic, “Fair Use Protects Culture from Copyright, Not the Other Way Around.” Radio Free Culture released a special episode, “Wishing You A Happy Fair Use Week with Ellen Duranceau.”

Blog Posts:

The Authors Alliance posted three times during the week, including Pamela Samuelson’s “Why is Fair Use Good For Authors?” Samuelson explains the many ways that authors rely on fair use, noting, “Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.”

The Electronic Frontier Foundation stated, “Congress’s Copyright Review Should Strengthen Fair Use—Or At Least Do No Harm,” explaining that Congress could 1) clarify that statutory damages do not apply where a user relies on a fair use defense in good faith, and 2) fix Section 1201 of the Copyright Act to ensure that technological protection measures, or digital locks, cannot be used to take away fair use.

Creative Commons celebrated Fair Use Week with an explanation of how the creative commons license interacts with fair use.

The Organization for Transformative Works highlighted 10 Fair Use Misconceptions.

Mike Masnick of TechDirt issued this “Reminder: Fair Use is a Right—And Not ‘An Exception’ or ‘A Defense.’

Harvard released blog posts each day of the week with expert guest bloggers Kenny Crews (consultant), Kevin Smith (Duke University), Laura Quilter (UMass Amherst), Niva Elkin-Koren (University of Haifa, Israel), and Dr. Matthew Rimmer (ANU College, Australia).

Georgia State University has a short piece explaining the four fair use factors. The Ohio State University explains Fair Use in Digital Storytelling. University of Texas Austin explains Fair Use and the Jazz Appreciation MOOCs.

Numerous universities across Canada joined in by celebrating Fair Dealing Week 2015. The University of Toronto coordinated these efforts and collected blog posts for the week here.

The week wasn’t exclusively celebrated in the U.S. or Canada, either! The University of Haifa in Israel also took part, with a series of blog posts (NB: most of these posts are in Hebrew).

Roundup from Day 3 of Fair Use Week

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines. Cross-posted from Fair Use Week.

Check out all of the great posts from Day 1 of Fair Use Week 2015!  Don’t see yours?  Contact us to get yours added!

Videos:

Blog posts:

Roundup from Day 2 of Fair Use Week (blog posts, videos and a podcast)

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines. Cross-posted from Fair Use Week

Check out all of the great posts from Day 1 of Fair Use Week 2015!  Don’t see yours?  Contact us to get yours added!

Check out these videos posted yesterday:

And this podcast:

And the blog posts from yesterday:

More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws.

The Fair Use/Fair Dealing Handbook collects every known fair use or fair dealing statute in the world. Prepared by Jonathan Band and Jonathan Gerafi.