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

[Brandon Butler <brandon@xxxxxxx>]

As a footnote, I should say that not every "image" is copyrightable. If the
image is just a representation of data in a standard format (a spreadsheet,
a simple list of facts or statistics), that data may not be protected in
the first place. Such a purely factual image could not be copyrighted and
would be available for free use in any context.

Best,
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


On Fri, Jan 13, 2012 at 2:04 PM, Brandon Butler <brandon@xxxxxxx> wrote:

> 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