[SIGCIS-Members] Copyright advice sought

Kimon Keramidas kimon.keramidas at nyu.edu
Sat Jul 14 20:38:42 PDT 2018

I’m sorry, I was probably a little hasty to say it is not a right. The way the law reads is that it is fair use "is not an infringement of copyright,” so it is kind of just say that you aren’t violating a right, but I guess that is a kind of right. However it is not as clearly defined and determined as copyright. That is why this line is in the copyright law:

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include"

Those factors are subjective to an extent and are up to a judge and the patterns of judicial precedent. In a lot of fields (some forms of theatrical copyright for direction instance) there has never been a judicial precedent because most cases have gone to settlement so what fair use or derivative use is often can remain without recorded precedent for some time.

The fact that we need codes of best practice are in a way a reaffirmation that fair use is more subjective and less categorical than copyright. To show how categorical copyright is, Circular 17 provides this as the legal boundaries of copyright

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

That is pretty specific (even in listing the types of work which has real effects on cases) and has to do with fixing a work in a tangible medium, which means you can’t just think it you have to write it down (hard drives count as tangible media).

All of the information we’ve shared about fair use is spot on, and for the most part academics are very safely situated in the space of fair use, with the codes of best practice from a variety of places being very helpful. I don't want to sound like a negative ninny or anything with all of this, it is just helpful to know how copyright and fair use work because when you do know it more intimately it also shows how safe we are as academics in declaring fair use.

FYI, I know and think about this topic a lot because my dissertation was on the role of intellectual property rights in the shifting of the political economy of American theatrical production. I read Circular 17 a lot and wrote about copyright and derivative works in relation to a lot of different types of theatrical production.

Loving the conversation by the way!


Kimon Keramidas, Ph.D.
Clinical Associate Professor
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> On Jul 14, 2018, at 10:24 PM, Michelle C Forelle <mcforelle at gmail.com> wrote:
> Hi all, 
> Thought I could contribute some useful info, with some help from my colleague and fair use expert Patricia Aufderheide. Given the amount of misinformation large media corporations and software associations have purveyed over the years, it's no wonder there's a lot of confusion about fair use. Some things to keep in mind:
> 1) Fair use is a right, as the Supreme Court has recognized affirmatively, and its technical designation as a defense doesn't make it any less of a right. Your right to self-defense is a right, although it is a defense. 
> 2) Fair use isn't complicated to interpret, in most common cases. In fact, you probably used fair use today without thinking about. Every time we quote another scholar in our work, that's fair use. Every time search engines temporarily copy documents to scan them for relevance, that's fair use. 
> 3) The Codes of Best Practices in Fair Use, which are available at csmsimpact.org/fair-use <http://csmsimpact.org/fair-use>, are extremely valuable for providing user-friendly logic for fair use in specific disciplines. They exist for communications research (might be the most pertinent for the original question), documentary film, media literacy, visual arts (as noted in this thread), journalism, film studies teaching, open courseware, nonfiction writing, museums and archives facing orphan works problems, and film studies research. Forthcoming is a best practices code on software. 
> 4) To echo SamR's comments, of course judges can find that a use is not fair, just as they can find that a use is obscene, or defamatory, or treasonous. That doesn't make the First Amendment any less real as a result. This is why Codes of best Practices are so helpful--they show what is generally accepted in a field already, and therefore unlikely to be found outside the acceptable in court, and therefore unlikely to draw any legal action from a copyright holder. Risk is a known feature of expression and of life in general. So the question is not whether you are risk-free (unless you don't want to express yourself at all), but what the risk is. Having consensus codes of practice is a way of vastly lowering risk. Documentary filmmakers found that it lowered risk so dramatically that insurers changed policy 180 degrees from "no" to "yes" on insuring against fair use claims, once they knew the expectations of the field, through the filmmakers' code. 
> All of this and more is covered in a very handy book by Aufderheide & Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright, 2d ed. (University of Chicago, 2018), which I highly recommend for anyone with questions about the details of how this works in practice.
> On Sat, Jul 14, 2018 at 3:51 PM Rebelsky, Samuel <REBELSKY at grinnell.edu <mailto:REBELSKY at grinnell.edu>> wrote:
> I am not a lawyer, but I'm pretty sure that fair use *is* explicitly stated as such in law, at least in US law, which is what we seem to be discussing.  Let's see … Section 107 of Title 17 (the section of US Law that specifies copyright) says
> 107. Limitations on exclusive rights: Fair use
> Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
> (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
> (2) the nature of the copyrighted work;
> (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
> (4) the effect of the use upon the potential market for or value of the copyrighted work.
> The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.copyright.gov_title17_92chap1.html-23107&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=gLmFIE41kMWux-imJ1ctjhAEbTmwP42UpKc7op3eBu4&e= <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.copyright.gov_title17_92chap1.html-23107&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=gLmFIE41kMWux-imJ1ctjhAEbTmwP42UpKc7op3eBu4&e=>
> However, as you say, whether or not something counts as fair use is not specified clearly.   So, while the government cannot take away an individual's fair-use rights without changing the law, a court case can determine that a particular use is not fair use.
> I would suggest that what counts as a 'creative work' and therefore eligible for copyright is also not stated clearly.  Certainly, there have been questions of whether compilations of information, like phone books, or mostly factual things, like maps, are subject to copyright protection.  And, in the end, no one has the "right" to copyright, except as stated in the law.  If Congress changes copyright law, those rights change.
> Regards,
> -- SamR
> Samuel A. Rebelsky, Professor of Computer Science
> Grinnell College, 1116 8th Avenue, Grinnell, Iowa 50112
> Office: 641-269-4410 ; Fax: 641-269-4285 ; Cell: 641-990-2947
> rebelsky at grinnell.edu <mailto:rebelsky at grinnell.edu> ; https://urldefense.proofpoint.com/v2/url?u=https-3A__www.cs.grinnell.edu_-7Erebelsky_&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=MAME_6D4O2rG6y2jczqLumU20qLLXVyUrlxb5Bi_z_A&e= <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.cs.grinnell.edu_-7Erebelsky_&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=MAME_6D4O2rG6y2jczqLumU20qLLXVyUrlxb5Bi_z_A&e=>
> The opinions expressed herein are my own, and should not be attributed to Grinnell College, Grinnell's Department of CS, SIGCSE, SIGCAS, any other organizations with which I am affiliated, my family, or even most sentient beings.
> > On Jul 13, 2018, at 8:49 AM, Kimon Keramidas <kimon.keramidas at nyu.edu <mailto:kimon.keramidas at nyu.edu>> wrote:
> > 
> > Just a point of clarification, fair use is not a right like copyright is as it is not explicitly stated as such in law. Rather it is an exception to copyright that has been provided by judicial precedent and has been roughly outlined in copyright law but is purposefully not clearly bound. This difference is just important to know as you move forward with concerns such as this and are dealing with legal situations and specific terminology. 
> > 
> > It’s kind of like driving. No one has the right to drive. The government provides the opportunity to get a driver’s license and it can be taken away. Fair use tenets can be violated as such if they are determined to be overstepped by a judge and one can then be in violation of copyright. Copyright however is automatically given to the creator upon recording of an expression in a material form and is a right that cannot be taken away.
> > 
> > Cheers
> > Kimon
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> -- 
> Doctoral candidate
> USC Annenberg School of Communication 
> @mcforelle on the tweet machine
> (407) 864-2225

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