Social and Behavioral Sciences Commons^™

The Racial Politics Of Fair Use Fetishism, Anjali Vats

Articles

This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.

Code Of Best Practices In Fair Use For Open Educational Resources: A Guide For Authors, Adapters & Adopters Of Openly Licensed Teaching And Learning Materials, Meredith Jacob, Peter Jaszi, Prudence S. Adler, William Cross

Copyright, Fair Use, Scholarly Communication, etc.

This code of best practices includes descriptions, hard cases, principles, and considerations for fair uses of materials in open educational resources with respect to United States copyright law, and with some discussion of copyright outside the United States context.

Open Educational Resources and Fair Use

Educators, librarians, and institutions have invested in the creation of openly licensed, freely distributed open educational resources (OER) to advance a wide range of goals within the educational system. Open educational resources enable flexible and open pedagogy; increase access to authorship and facilitate representation of different student experiences; and increase equity by reducing the barriers …

The “Green Patent Paradox” And Fair Use: The Intellectual Property Solution To Fight Climate Change, Samuel Cayton

Seattle Journal of Technology, Environmental & Innovation Law

As the climate crisis consistently worsens, the United States’ response to the crisis has proven inconsistent. Even with the United States likely to recommit to the Paris Climate Agreement, political tensions will likely further delay a climate response. The polarized characterization of the Green New Deal, the inaction of scientifically misguided conservatives, and the incessant proposal for middle ground approaches lacking the urgency needed to change course all contribute to this delay. While swift action from the federal government is needed, looking to the private sector to transition to sustainability is equally important. Specifically, patent protection is a strong intellectual …

Copyright, Fair Use, And Creative Commons: An Active-Learning Exercise For Studio Art Students, Arthur J. Boston

Faculty & Staff Research and Creative Activity

This article describes an active-learning exercise intended to help teach copyright, fair use, and Creative Commons licenses. In the exercise students use a worksheet to draw original pictures, create derivative pictures on tracing paper, select Creative Commons licenses, and explore commercial usage, fair use, and copyright infringement. Librarian-instructors may find the completed worksheets to be useful aids to supplement copyright lectures; student perspectives will be integral because they are generating the examples used in discussion. Although a scholarly communication librarian developed this exercise to help introduce some basic copyright information to an undergraduate studio art and design class, the exercise …

Copyright And Libraries: Georgia State Copyright Lawsuit, Laura Burtle

University Library Faculty Publications

Overview of the litigation between academic publishers and Georgia State University and the University System of Georgia regarding the use of electronic reserves. The chapter covers the fair use findings of the district and appellate courts and provides background on the case.

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman

All Faculty Scholarship

This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a …

The Chilling Effect Of Copyright Permissions On Academic Research: The Case Of Communication Researchers, Patricia Aufderheide

Joint PIJIP/TLS Research Paper Series

Communications researchers in the U.S., who routinely analyze copyrighted material, both qualitatively and quantitatively, face challenges from strict copyright. The doctrine of fair use permits some unpermissioned use of copyrighted works. Survey research shows that researchers routinely need access to copyrighted material; that they are often unsure or confused, even unknowing, about fair use; and that this lack of knowledge and/or familiarity leads to both failure to execute and failure to initiate, or “imagination foregone.” Creating a best practices code has improved knowledge but more institutional change is needed for knowledge to inform action.

Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner

University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches

Copyright begins at “birth”

You can also register.

The holder of copyright controls the ability of others to distribute: reproductions, derivatives, translations, performance

Length of term = until you die + 70 years

Licensing and contracts

Permissions

Publisher contracts

Creative Commons licenses

Gold Open Access/APCs

Predatory journals

"Can I use this {image / quote / video clip / ...} in my {lecture / course materials / dissertation / ...}” ?

Public domain (= no copyright)

Educational use = Not Infringement

Plagiarism vs. infringement

Fair Use (1): Re-using copyrighted materials in your own work--legally

Fair use (2): The 4 Factors

Who …

Copyright Assessment In The Trenches: Workflow, Tools, Metadata, And More, Megan De Armond, Victoria Pilato, Greg Cram, Rina Elster Pantalony

Library Faculty Publications

Assessing copyright varies from institution to institution along with the specific workflow and end-user notices. This article looks at tools used in art libraries in a range of contexts along with pragmatic perspectives on copyright evaluation from a museum art library, a public research library, a university copyright advisory office, and a public university. Pain points for determining copyright presented by various formats, ownership issues, and digitization are addressed through cases encountered by the authors. Helpful tools and workflow strategies for moving forward, including widely available charts and resources, as well as software for copyright determination, are shared. Finally, the …

Fair Use, Laura Quilter

New England Copyright Boot Camp

No abstract provided.

The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag

Faculty Articles

Now that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright's most …

Rethinking Copyright And Personhood, Christopher S. Yoo

All Faculty Scholarship

One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First, in …

Transformed, I'M Sure: A (Polite) Introduction To Fair Use In Dh, Jill Cirasella

Publications and Research

This presentation looks at how the words "including" and "such as" in the fair use section of United States copyright law (i.e., Section 107 of Title 17 of the United States Code) allow for unforeseen fair uses, including transformative works made by digital humanists.

Illustrating A Technical Manual: Copyright And Fair Use In A Real World Professional Context, Karyn Hinkle

Library Faculty and Staff Publications

This lesson was developed for students preparing to enter professional practice who were assigned to write and/or illustrate a technical howto manual on a topic of their choice (how to put on ski boots, draw blood, use a fitness tracking app, etc.). The teaching librarian conducts a class session on finding and creating images to illustrate the manuals and teaches differences between using copyrighted and non-copyrighted images. The students work on finding images in the public domain, creating their own images, and incorporating copyrighted images via Creative Commons licenses and the principle of fair use. Librarians can teach this lesson …

Copyright: Walking The Tightrope, Bethany Kenyon, Elizabeth Dyer

Library Services Faculty Posters

Librarians often struggle with copyright questions from patrons. After winning a copyright consultation with copyright specialist Barbara Ingrassia during the 2015 North Atlantic Health Sciences Libraries (NAHSL) Scholarship Raffle, UNE librarians decided it was high time to conquer our fears and create a tool to help with the balancing act that is Fair Use. This poster describes the development and promotion of a Fair Use Checklist.

District Court: Cambridge Univ. Pr. Et Al. V. Becker Et Al.: Ruling On Remand (2016), Orinda Evans

Georgia State University Copyright Lawsuit

No abstract provided.

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre A. Keller, Anjali Vats

Articles

This article engages the recent Georgia State litigation regarding uses copyrighted content by teachers and seeks to place it within the larger context of the current state of affairs in education and in copyright policy making. In a recent article, Professor Peter Jaszi argued that educators need to begin to articulate the ways in which their uses are transformative in order to increase their chances of winning copyright infringement suits on the basis of fair use. While Jaszi’s point that educators need to better articulate their rights to use copyrighted content is well-taken, we argue that the appropriate audience educators …

Codes Of Best Practice For Fair Use, Denise George

Selections from the University Library Blog

No abstract provided.

Fair Use: The Four Factors, Kathryn Michaelis

Selections from the University Library Blog

No abstract provided.

Authors Alliance: A Force To Promote Authorship For Public Good, Michael Wolfe, Adrian K. Ho

Adrian K. Ho

No abstract.

Authors Alliance: A Force To Promote Authorship For Public Good, Michael Wolfe, Adrian K. Ho

Library Faculty and Staff Publications

No abstract provided.

11th Circuit Court Of Appeals: Cambridge Univ. Press V. Patton, Opinion (2014), 11th Circuit Court Of Appeals

Georgia State University Copyright Lawsuit

No abstract provided.

Brief Of Digital Humanities And Law Scholars As Amici Curiae In Support Of Defendant-Appellees And Affirmance, (The Authors Guild, Inc., Et Al., V. Google, Inc., Et Al.), Matthew L. Jockers, Matthew Sag, Jason Schultz

Copyright, Fair Use, Scholarly Communication, etc.

Amici are over 150 professors and scholars who teach, write, and research in computer science, the digital humanities, linguistics or law, and two associations that represent Digital Humanities scholars generally.2 Amici have an interest in this case because of its potential impact on their ability to discover and understand, through automated means, the data in and relationships among textual works. Legal Scholar Amici also have an interest in the sound development of intellectual property law. Resolution of the legal issue of copying for non-expressive uses has far-reaching implications for the scope of copyright protection, a subject germane to Amici’s professional …

Copyright’S Private Ordering And The 'Next Great Copyright Act', Jennifer E. Rothman

All Faculty Scholarship

Private ordering plays a significant role in the application of intellectual property laws, especially in the context of copyright law. In this Article, I highlight some of the dominant modes of private ordering and consider what formal copyright law should do, if anything, to engage with private ordering in the copyright space. I conclude that there is not one single approach that copyright law should take with regard to private ordering, but instead several different approaches. In some instances, the best option is for the law to get out of the way and simply continue to provide room for various …

Unauthorized Televised Debate Footage In Political Campaign Advertising: Fair Use And The Dmca, Susan Park

Management Faculty Publications and Presentations

No abstract provided.

Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman

All Faculty Scholarship

In this essay prepared for the University of Pennsylvania’s conference on Intellectual Property and the Common Law, I build upon my work on custom and intellectual property. I focus here on one important facet of the subject — how longstanding common law principles should inform our understanding of custom. The common law provides a number of lessons on how to appropriately limit the consideration of custom in intellectual property law and elsewhere. The essay begins by considering the traditional role of custom in the common law. Part II then examines several of the ways that courts have incorporated custom into …

District Court: Final Order (2012), Orinda Evans

Georgia State University Copyright Lawsuit

No abstract provided.

District Court: Cambridge Univ. Press V. Becker - Ruling (2012), Orinda Evans

Georgia State University Copyright Lawsuit

Ruling from the District Court

Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012)

1i - How Fair Use Can Help Solve The Orphan Works Problem, Jennifer Urban

New England Copyright Boot Camp

Used in Foundational Copyright (Dec. 1 Boston; Dec. 15 Amherst)

Many works that libraries, archives, and historical societies would like to digitize are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Due to copyright risk if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize and make these works available, greatly limiting access to important cultural and historical information.

While a legislative fix may soon be proposed, this Article argues that legislation is not necessary to enable some uses of orphan …