News & Blog Posts

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Fair Use/Fair Dealing Week 2021 Reminds Us That Fair Use Is a Right

Last week more than 50 universities, associations, and organizations celebrated the eighth annual Fair Use/Fair Dealing Week, a celebration of these critical copyright doctrines that foster scholarship and creativity. Fair use in the US and fair dealing in Canada allow the public to lawfully use copyrighted materials without asking for permission. Described by Justice Ruth Bader Ginsburg as a built-in accommodation to the First Amendment, fair use provides a balance of rights between creators and users that is critical to the constitutional purpose of copyright: to promote the progress of science and useful arts. We celebrated each day of Fair Use Week with virtual activities, new resources, and insights and expertise to empower libraries, teachers, educators, and the public about the right of fair use. Three new projects launched during Fair Use Week, which we are excited to showcase here.

While the number of scholarly communications positions within the ARL community have increased in the past decade, positions like these that advise on issues like open access and copyright are less than two percent of the professional workforce within ARL. This Fair Use Week, Columbia University Libraries and LYRASIS launched the Virtual Copyright Education Center (VCEC) pilot project with a free class, Copyright 101. This class will deepen the bench of experts in libraries who will advise students and faculty on how copyright and fair use can enable their scholarship.

The UC Irvine Intellectual Property, Arts, and Technology (IPAT) Clinic released a first-of-its-kind review of fair use jurisprudence from 2019 to 2021. Authors of the report remind us that “[j]ust about anyone who wants to do more than read, watch, or use a work relies on the doctrine of fair use in order to avoid liability for copyright infringement.” In reviewing the 72 court opinions, researchers noted that over half of the cases were about photographs, and that there were very few cases dealing with technology.

While fair use allowed creativity and scholarship to move online in 2020, even before COVID-19 educators and learners could rely on fair use for online education. Authors of the new Code of Best Practices in Fair Use for Open Educational Resources Meredith Jacob and Will Cross write, “Relying on fair use as a tool to enable access seemed urgently necessary in that moment of crisis. But those needs are no less urgent and fair use is no less essential for students who face perennial challenges based on inequity and inaccessibility.” Learn more about how your project, conference, or institution can engage with the Code of Best Practices.

Fair Use/Fair Dealing Week 2021 Day 5 Roundup

Last week was Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. The week is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from the final day—Day 5—of Fair Use/Fair Dealing Week 2021! Don’t see yours? Email kaylyn@arl.org to get it added! You can view previous roundups here.

Blog Posts/News

Creation Is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources,” Will Cross and Meredith Jacob, Copyright at Harvard Library blog

Fair Dealing Week 2021: Beyond Fair Dealing,” Lachlan MacLeod, Dalhousie University Libraries’ The Libvine blog

Fair Use Week 2021: A Case from South Florida,” Kristy Padron, Florida Atlantic University Libraries

Events

Applying Fair Use in the Classroom,” hosted by University of Arkansas University Libraries

Copyright for Internet Creators Town Hall,” hosted by Electronic Frontier Foundation

Fair Use Week Office Hours,” hosted by University of Houston Libraries

Resources

Copyright Toolkit,” University of Nebraska Kearney Calvin T. Ryan Library

Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?,” Ariel Katz, The Cambridge Handbook of Copyright Limitations and Exceptions

Fair Use/Fair Dealing Week 2021 Day 4 Roundup

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

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2021! Don’t see yours? Email kaylyn@arl.org to get it added! You can view previous roundups here.

Blog Posts/News

Fair Dealing Week 2021: Fair Dealing and Students,” Lachlan MacLeod, Dalhousie University Libraries’ The Libvine blog

Fair Use in the Real World,” Mariah Lewis and Laura Childs, Fordham Library News blog

Fair Use Week 2021,” Donna Stewart, Cleveland State University Michael Schwartz Library

Rebekah Modrak on Teaching Studio Art with Fair Use,” Center for Media and Social Impact Blog

Events

Fair Use Week Gameshow,” University of Illinois Library

Implementing the CARL Copyright OER for University Instructors and Staff on Campus,” webinar hosted by the Canadian Association of Research Libraries

Fair Use Jurisprudence 2019–2021

By Jack Lerner, Luke Hartman, and Jordin Wilcher

Cross-posted at https://ipat.law.uci.edu/fairuse2021

We are excited to celebrate Fair Use Week with a new report from the UC Irvine Intellectual Property, Arts, and Technology (IPAT) Clinic: Fair Use Jurisprudence 2019–2021: A Comprehensive Review. The report presents the results of an exhaustive study of recent fair use opinions issued by US federal courts in copyright infringement cases.

Copyright covers a huge range of expressive activity and is automatic. Just about anyone who wants to do more than read, watch, or use a work relies on the doctrine of fair use in order to avoid liability for copyright infringement. The US Supreme Court has referred to fair use as a sort of safety valve that provides breathing space allowing copyright to coexist with freedom of expression. And it is an evolving doctrine; disputes concerning fair use are constantly working their way through the American legal system, but the vast majority of cases don’t make the news despite their importance to creative expression and innovation.

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MET orchestra performing online during COVID-19 pandemic

The Digital Millennium Copyright Act Promotes Creativity

We started the week sharing the ways that we’re all fair users now, and as #fairuseweek nears its end, we now look to the future. ARL’s Action Plan prioritizes digital rights, which to us means working toward barrier-free access to information. Barriers to internet access can be physical or economic, such as lacking broadband at home when schools and libraries are closed. Bad public policy can be another barrier, and that’s why this year, we are focused on protecting the Digital Millennium Copyright Act (DMCA).

Last year, Senator Thom Tillis proposed changes to the DMCA that would threaten its balanced protections. He proposed collapsing the four current safe harbor categories of internet service providers (mere conduit, caching, hosting, linking) into one, and then imposing on old service providers a “notice-and-staydown” (in place of the current notice-and-takedown) regime. Libraries that provide internet access would be required to use filters to prevent users from uploading allegedly infringing content in order to ensure they remain within the safe harbor. These filters would be unable to distinguish between infringing use of copyrighted material and uses that are fair. As Electronic Frontier Foundation (EFF) associate director of policy and activism Katharine Trendacosta explains in a recent white paper, fair use decisions depend on context. Most applications of fair use do not end up in court. Those that do are determined based on the four factors codified in Section 107 of the Copyright Act; the evaluation is meant to be flexible and responsive to advances like new technology.

When the DMCA was enacted in 1998, the internet was nascent. How could Congress, or any of us, know how invaluable the internet would become? Yet according to legislative history, the Senate at the time imagined the DMCA “would make available via the Internet the movies, music, software, and literary works that are the fruit of American creative genius.” That vision is coming true; presently, creators can reach global audiences with little or no cost due to the open internet in what has been called a “digital renaissance,” an abundance of creative content with unprecedented opportunities to distribute and monetize.

Tillis’s proposed bill could potentially stifle this creativity. In drafting the DMCA, Congress protected fair use; according to a 1998 Senate report, “[t]he Committee [on the Judiciary] determined that no change to section 107 was required because section 107, as written, is technologically neutral, and therefore, the fair use doctrine is fully applicable in the digital world as in the analog world.” However, a notice-and-staydown regime applicable to all internet service providers, including libraries, inevitably would restrict fair use. The copyright clause of the Constitution grants Congress the power to promote the progress of science and useful arts. In a seminal case, Harper & Row, Publishers, Inc. v. Nation Enterprises, the Supreme Court reminded us that “the Framers intended copyright itself to be the engine of free expression.” But the proposed DMCA changes could lead to a reduction in the amount of content created and made available. In our fight to protect digital rights, ARL will continue to work with our collaborators in the Library Copyright Alliance to push back against this bill, and protect balanced copyright law.

Fair Use/Fair Dealing Week 2021 Day 3 Roundup

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

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2021! Don’t see yours? Email kaylyn@arl.org to get it added! You can view previous roundups here.

Blog Posts/News

A Sample of Fair Use,” Sandra Aya Enimil, Copyright at Harvard Library blog

ACRL Books Celebrating Fair Use/Fair Dealing Week,” Erin Nevius, ACRL Insider

Fair Dealing Week 2021,” Kirsten Thompson, Teaching in a Fishbowl blog

Fair Dealing Week 2021: Faculty and Fair Dealing,” Lachlan MacLeod, Dalhousie University Libraries’ The Libvine blog

Fair Use and Dr. Seuss,” Christine E. Weller, Penn Libraries

Open Educational Resources Makers Get a Code of Best Practices in Fair Use,” Center for Media and Social Impact Blog

Quiz: How Much Do You Know about the Fair Use Doctrine?,” University of Colorado Boulder University Libraries

The Heart of Copyright Policy: Fair Dealing, an Indian Perspective,” Akshat Agrawal, Fair Use/Fair Dealing Week website

Virtual Escape Room—Fair Dealing Week Edition,” University of New Brunswick Libraries

You Be the Fair Use Judge Today: Visual Arts,” Center for Media and Social Impact Blog

Events

Copyright 101,” a free live course presented by Columbia University Libraries and LYRASIS in their new pilot Virtual Copyright Education Center

Fair Use in the Time of COVID-19,” webinar hosted by UCLA library

Foundations of OER,” first of three Association of College and Research Libraries (ACRL) webcasts on open educational resources scheduled through mid-March

Next Steps for Fair Dealing Advocacy,” panel discussion with Brenda Austin-Smith, Eli MacLaren, and Mark McCutcheon, hosted by University of Alberta

The Basics of Copyright,” workshop providing an a overview of copyright legislation, fair use, and licensing, hosted by University of Arkansas University Libraries

Resources

Fair Use,” Bentley University Library Research Guides

Future Thinking: ASERL’s Resource Guide to Controlled Digital Lending for Research Libraries,” Association of Southeastern Research Libraries

A Sample of Fair Use

By Sandra Aya Enimil

Music sampling has been, and is, a critical fixture and feature of hip-hop. Hip-hop is an amalgamation of music, music mixing, dance, graphic art, and a specific clothing aesthetic. Lovers of hip-hop music and copyright have followed and studied the impact of copyright law on the genre, particularly how hip-hop musical artists (MCs) have engaged fair use.

Read the full blog: http://blogs.harvard.edu/copyrightosc/2021/02/24/fair-use-week-2021-day-three-with-guest-expert-sandra-aya-enimil/