Fair Use Awakens...

Published on Nov 18, 2015

This deck accompanies our panel proposal for SXSWEDU 2016; we hope to support attendees who wish to inspire and educate students by incorporating follow-on works, fanfiction, fanart and other creatively educational experiences that exist because fair use is a lawful use of copyright.

PRESENTATION OUTLINE

Fair Use Awakens...

What can we do with it?
Photo by Schub@

Copyright terms have grown...

The public domain
gets further away...

School rules are
out of date

Columbia University's publicly accessible Fair Use checklist hasn't been revised since 2008. It predates cases like Google Books, Cariou v Prince, the "Jersey Boys" case and so much more. https://copyright.columbia.edu/content/dam/copyright/Precedent%20Docs/fairu...
Villanova directs students and professors to a Copyright Management Center at Purdue that hasn't existed in years, and hasn't updated its Fair Use Check list in almost a decade.
The page at http://www.copyright.com/Services/copyrightoncampus/basics/fairuse_list.htm... that is supposedly education-focused is also from 2008.

When were your fair use policies updated? Are you relying on explanations from almost a decade ago?

Even when something is in the public domain,

someone may claim it isn't.
Photo by bcostin

How much guidance do guidelines provide?

Copyright Office Exemptions

Useful expansions under the dmca
Some believe it is fundamentally broken; corporations believe that the every-three-years renewal process makes it difficult for them to create multi-year forward-thinking business plans.
https://www.eff.org/issues/dmca-rulemaking
Photo by Eneas

what can Fair Use do?

When teachers & students are inspired
Photo by Sam Howzit

How can we...

Photo by tdm911

thi
nkc
re
at
ive
ly?

Photo by lecates

Fair Use is not:

  • Plagiarism
  • Unethical
  • Infringement
  • Uncreative
  • File sharing on publicly accessible sites
  • A rigid and unchanging checklist
  • Shrinking (at the moment)
  • An exception to copyright
Photo by Shiny Things

It's set out in U.S. law.

Fair use is a lawful use of copyright.
"On the Road" will be copyrighted in the US until 2053 unless copyright terms shrink. That's very unlikely.
Photo by James Clayton

It fills classrooms with resources.

Photo by fung.leo

It asks questions and gives tools to create answers.

Photo by Karen Roe

Fair Use
allows everyone an opportunity to engage with others' works in new and unex-
pected ways.

Photo by danmachold

Under the DMCA's "safe harbor" provisions, site policies & terms of use dictate how each online platform removes content - blog posts, videos and tweets - in response to copyright holder complaints.
However...

Photo by Anita363

Sites, ISPs and even schools have no (practical) way of knowing whether a particular use of a work is authorized by the rightsholder, or is used
legally, under fair use.

How to respond to a DMCA Takedown Notice:
http://heidi8.tumblr.com/post/111076144999/have-you-heard-about-the-tumblr-...

If a student gets a takedown notice on YouTube, Facebook or another site, the link above has instructions on how to "counter-notice" and hopefully have the content restored.
Photo by marfis75

Statutory Penalties

are impractically high, if you're reasonable but wrong.
Photo by Novemberdelta

Fraudsters & manipulators take advantage of the imbalance by sowing fear.
How do you reply to an unfair
C&D demand?

http://artlawjournal.com/tips-responding-getty-images-demand-letter/
Use law schools as resources; clinics and professors are often able to help when fair use is being attacked by an unfair claim from a copyright holder.
Photo by Jared Klett

Copyright encourages creativity and innovation,
when it preserves and promotes ample
breathing space
for unexpected and
innovative uses.

transform them into Best Practices

Reviews of out-of-date policies can

How can instructors successfully support students' educational goals and voices with follow-on works, to counteract silencing and censorship?

Photo by Kalexanderson

How do follow-on works inspire students' interests...

Remember that students (generally) own copyright in their own work, whether it's textual, artistic, code or audio-visual, whether it's done for school or personally - although group projects can get complicated. More explanation of how students can send DMCA takedowns if something they've created is used by a third party - even if the student's creation is pursuant to Fair Use - is here: http://www.isfanficlegal.com/post/116301992754/weve-been-getting-pings-and-...
Photo by la.furia

ARTS, TECH, AND SOCIAL JUSTICE?

... IN CLASSES, MUSEUMS, COMMUNITY PROGRAMS, sports,
https://www.rockefellerfoundation.org/about-us/news-media/hamilton-the-musi...
HAMILTON: The Musical and The Rockefeller Foundation Announce Partnership to Provide 20,000 NYC Public School Students with Tickets to Hamilton on Broadway
Photo by smbuckley23

HOW CAN SCHOOLS BUILD SAFE HARBORS OF FAIR USE & PRIVACY?

https://www.whitehouse.gov/blog/2015/10/19/openly-licensed-educational-reso... includes a discussion of how "openly licensed educational materials are being used to solve local education challenges around the world".
Photo by stonebird

fair use checklists & policies include?

WHAT SHOULD up-to-date 

What content does your school use? Why?

  • Is there's an openly licensed version of the content you want to use?
  • If so, how do you get your school/teachers/students to use it?
  • What internal policies prevent you from using that resource? What old contracts limit innovation and engagement?
  • Do legacy contracts limit innovation and engagement?
  • Do licenses limit your "fair use" rights?
Photo by Teppo

Text copyright 2015-2016 H. Tandy; image copyrights available in metatext. all trademarked and copyrighted characters included herein are used pursuant to fair use.

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Heidi Tandy

Haiku Deck Pro User