Re: What if the students don't buy the book? Copyright question

[Brandon Butler <brandon@xxxxxxx>]

Hi Cynthia,

Just a few more things to consider as you reckon with the use of images in
faculty PPT slides:


   - When evaluating fair use advice you find online, consider the source.
   The Copyright Clearance Center's business model is to monetize the use of
   copyrighted works in cases beyond the traditional market of selling copies.
   That means every time a university decides that a use is not fair, that's
   more money in CCC's pocket. There are some very nice and conscientious
   people working at CCC, but the CCC is bankrolling 50% of the lawsuit
   against Georgia State University over e-reserves and their CEO sits on the
   Enforcement Task Force of the Int'l Association of STM Publishers, which is
   engaged in a campaign to intimidate US libraries to replace existing
   cross-border interlibrary loan programs with paid alternatives. So they're
   not a neutral player in the world of fair use and licensing advice; they
   are very much engaged in discouraging fair use on campus. I'm sure the list
   of examples of guidelines from parties who get paid when fair use shrinks
   could go on and on. Bottom line: frightening fair use advice from people
   who stand to gain from your fear, uncertainty, and doubt should be read
   carefully and skeptically.
   - Fair use is a case-by-case determination based on four statutory
   factors (along with whatever else a judge wants to consider). While the
   market harm factor loomed large in fair use jurisprudence for a while, it's
   not the end of the analysis, and its influence has waned in the last two
   decades or so. Another factor, and one that judges have come to see as the
   key to unlocking many fair use determinations, is the purpose of the use,
   and specifically whether the purpose is "transformative," i.e., whether the
   user takes protected work and presents it as part of a new work or in a new
   context that produces new insights, new aesthetics, or serves new purposes
   different from the original. If the use is transformative, courts will
   typically pass over the market harm factor, because by definition such a
   new use is not a "mere substitute" or unfair competitor with the original.
   For your faculty use, I'd ask whether she is using the textbook image for
   the same reason it's in the textbook, or if she's taking the image to make
   her own, novel analytical point. If it's a flow-chart, a graph, or a visual
   aid made specifically to illustrate a concept and she's just putting it in
   her slide to serve the same purpose, that's not going to be a strong case
   for transformativeness. On the other hand, if she's taking images from the
   text and using them to make her own, independent points, the argument could
   be stronger. It's really going to depend on context.
   - That said, even transformativeness isn't everything. Your original
   argument, that most students are buying the textbook, when combined with
   the other factors, can make for a strong overall argument. The
*purpose*is non-profit and educational, and even looks like one of the
examples in
   the preamble to 107, and so arguably is at the core of fair use; the *nature
   of the work* is published non-fiction, which favors fair use; taking one
   image from a lengthy textbook is a small *amount* and is highly unlikely
   to be the "heart" of the work (though query whether the rightsholder of the
   image, rather than the book, might have a stronger claim); and, as you
   said, teachers and students in classes where the text has been assigned can
   fairly say that the "*market*" for the textbook is alive and well and
   not being undermined by the teacher's use, so that favors fairness, too. I
   think it's also relevant that Section 110(1) allows use of the slides in
   class, and that distributing slides as handouts is a normal adjunct to
   in-class us.
   - On the other hand, it gives me pause that students might see the PPT
   files as a substitute for the text. Ideally, the prof should not be
   distributing presos so rich with textbook material that they are an
   adequate substitute for the text. (Which is not to say that the prof can't
   distribute PPTs of *his own material* that renders the text superfluous;
   the question is whether he's giving away so much of the text that students
   are getting the heart of the text for free, not whether he's legitimately
   competing with the book via his own material). Indeed, I'm usually pretty
   optimistic about transformativeness in the educational context, but
   textbook material is a huge exception. Students ARE the target market, and
   education is the core purpose, for textbook material, so harvesting that
   material and distributing it without a license is a lot less likely to be
   fair than using material not designed for classroom use.

I hope that helps,
B

Brandon Butler | Director of Public Policy Initiatives | Association of
Research Libraries | brandon@xxxxxxx | @ARLpolicy | w: 202.296.2296 x156 |
m: 202.684.6030 | 21 Dupont Circle, DC