A. Copyright law is a complicated, somewhat circular and amorphous mixture of fact and law.
B. Copyright law applies to many more aspects of daily life as an academic than most recognize.
C. Understanding the basic provisions of the law can be helpful to faculty as they work through all of the myriad areas where it arises.
1. What are the basic provisions and requirements of copyright law?
2. Who owns faculty scholarly work?
3. How can faculty use other's work?
A. Copyright law is designed, most basically, to protect works from being copied by people who don't own the rights to them. The purpose of the law is to provide the protections necessary to direct investment toward production of abundant information.
1. Copyright law protects original works of authorship fixed in any tangible medium.
a) This standard is a fairly easy one to meet; it is much less stringent than that for getting a patent (see Appendix A, Distinctions Between Copyright, Patent and Trademark). As logically follows, copyright offers much less protection than patent.
b) Copyright owners don't have to record their copyright. Copyright can simply be asserted once the work is fixed in a tangible medium. While copyright can be registered (and, if a lawsuit is filed to enforce a copyright, must be registered at that time), such registration is not necessary to create the copyright protection.
Note: Thus the © symbol is not a requirement to make an item protected, nor is the lack of such a symbol any indication that the work is not copyrighted. However, including the © symbol is an easy way to send a clear reminder to readers that the work is protected and that the author values that protection.
2. Covered Works are anything fixed in a tangible medium.
a) This includes books, private letters, paintings, computer programs, motion pictures and other audiovisual work. It also includes anything else fixed, no matter how it is fixed. Thus it includes documents "written" on a computer disk, web pages, notes on scraps of paper, even your grocery list. Anything fixed qualifies for protection.
b) This of course makes any policy requiring "reporting" of the creation of copyright material, or intellectual property, an absurdity.
3. Copyright does not protect ideas, nor does it protect the labor that goes into creating a written work.
a) No matter how much work goes into compiling data, for example, the data itself is not protected. If a work shows some originality or creativity in the way it is put together, that creative presentation might itself be copyrighted, but the data is not.
Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). In this case the Supreme Court held that alphabetical listings in telephone directory white pages are not copyrightable. The Court allowed copyright protection for compilations or directories only for any original and creative elements of the arrangement or selection, and excluded protection of the underlying data. In doing so the Court rejected a number of decisions supporting a "sweat of the brow" doctrine. The Court concluded that the sweat-of-the-brow doctrine went too far in that it "extended copyright protection in a compilation beyond selection and arrangement--…to the facts themselves."
4. Copyright only lasts for a limited time.
a) Copyright now lasts for the life of author plus 70 additional years. For commercial products (commercial authors), it lasts 95 years from the date of publication.
b) Note, however, that the legal authority for any time limit on copyright comes from Article I, Section 8, Clause 8 of the U.S. Constitution, which promotes "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (emphasis added). This leaves the specific time to be set by Congress, which keeps expanding the time. It was most recently expanded by the Sony Bono Copyright Term Extension Act (CTEA) of 1998. Legal challenges to the most recent expansion were unsuccessful. See Eldred v. Ashcroft, 537 U.S. 186 (2003).
D. The Bundle of Rights: What exactly does a copyright holder "own"?
1. Copyright law gives creators the exclusive right and authority to a "bundle of rights." Thus the author owns not only the specific work, but the right to control its use. See Appendix B, 17 U.S.C. §106 (Exclusive rights in copyrighted works).
d) Public performance and display.
1. Ownership of a copyright is different from ownership of a tangible object. See Appendix B, 17 U.S.C. §202 (Ownership of copyright as distinct from ownership of material object).
2. Ownership of copyright has to do with the right to control future use of the work, separate and apart from the treatment of the physical item on which that work is fixed.
a) For example, if an author writes a book, s/he owns the copyright. S/he has rights over what happens to the content of the book. But if you buy that book in the bookstore, the author does not own your copy. S/he has no right over what you do with that particular copy of the book. You can resell it at a used bookstore, give it to a friend, etc. But the author does have control over how you use the content of the book, and thus can control your reproduction of the book, translation of it, marketing of it, etc.
3. Transferring a copy of a book does not affect copyright, and transferring copyright does not give a copyright holder property rights to any particular material object.
F. Transfer of Ownership of Copyright (See Appendix B, 17 U.S.C. §204, Execution of transfers of copyright ownership).
1. Copyright must be deliberately transferred.
2. Any transfer of ownership must be both in writing and signed.
a) A unilaterally imposed policy cannot legally take away your copyright ownership of your work.
b) However, if you sign an employment contract ceding copyright to your work, or sign a faculty handbook indicating acceptance of the policies within, such a signed document could be construed as a contract and might constitute a valid transfer of rights.
c) Courts generally interpret the signed writing requirement fairly liberally, allowing, for example, a signed check to suffice. See, e.g., Franklin Mint Corp., v. National Wildlife Art Exch., Inc., 195 USPQ 31 (E.D. Pa. 1977), aff'd, 575 F.2d 62, cert. denied, 439 U.S. 880 (1978). But an agreement that is signed just by the recipient of the copyright, but not by the assignor (the copyright holder) has been held not to be a valid transfer of ownership, even though the copyright holder had accepted payments under the agreement. See Berger v. Computer Info. Publishing, Inc., 1984 U.S. Dist. LEXIS 15291 (S.D.N.Y. 1984). See generally, Paul Goldstein, Copyright, 2 ed. §4.5 (2005).
III. Who Owns Faculty Work?
1. What constitutes your scholarly work?
a) Academic scholarly work covers a wide range, from books and articles to syllabi, class notes, and distance education classes. Ownership of these various components depends upon a number of factors, and may vary not only between categories but within them.
2. Ownership includes not only immediate but also future rights. Who controls future revisions of syllabi, online courses, textbooks, etc.? Are rights and uses at one's home institution different than those faculty take with them when they leave?
3. Who owns work done outside one's own institution? What control, if any, does your home institution have over faculty outside commitments and work? What obligations do you have in that regard?
a) See AAUP Legal Information Outline, Faculty Employment Outside Of The University: Conflicts Of Commitment (Donna Euben, March 2004).
4. Always be aware of what your letter of appointment (which is your employment contract) already provides, and what issues you want to define more particularly or contract around outside of your regular employment contract.
a) See Appendix B, 17 U.S.C. §101 (Definitions) and §201 (Ownership of Copyright).
b) Example: If a marketing director for an auto manufacturer writes an advertising brochure, the copyright to that document belongs to the company. The brochure was prepared by an "employee" in the "scope of employment." Thus, copyright is owned by the employer, and the employer has the right to revise, edit and translate the brochure, release it to the public, discard it, etc., whatever the employer chooses.
2. Generally, faculty scholarly work is not considered work-for-hire. "[I]t has been the prevailing academic practice to treat the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes." Statement on Copyright, AAUP Policy Documents & Reports 182 (9th ed. 2001).
a) Those instances where faculty work is considered work-for-hire are those where the administration provides the specific authorization or supervision for the preparation of the work. Id.
(1) Examples of work-for-hire where works are institution-directed, or assigned as an institutional responsibility, are a recruitment brochure written by an admissions director, an affirmative action report written by a department chair, a catalog for the university art museum's most recent exhibit written by an art professor (which would presumably be outside the art professor's normal scope of employment).
b) Despite this general practice and legal understanding, some colleges and universities still proclaim that even traditional academic works are 'works made for hire,' and that the institution is the initial owner of copyright. The base this claim on the use by the faculty member of college or university resources, such as office space, supplies, library facilities, ordinary access to computers and networks, and money.
(1) "The most common standard employed by universities for claiming ownership of faculty works is the 'use of university resources' or 'significant or substantial use of university resources'. … However, since there is no tradition of applying this standard, the process of defining it will be one of uncertainty for both parties…" Laura Lape, Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies, 37 VILL. L. Rev. 223 (1992).
c) This claim is in a legally vague area, however, and such agreements are not widely accepted.
d) AAUP policy holds that for faculty work to be work-for-hire, it requires use of extra-ordinary resources; use of traditional resources "such as office space, supplies, library facilities, ordinary access to computer and networks, and money," are not sufficient to make faculty work into work-for-hire. See, Statement on Copyright, AAUP Policy Documents & Reports 182 (9th ed. 2001).
(1) Note that the focus is on what is ordinarily provided, not on the amount of resources. Thus while the resources received by a physicist staffing a lab will be much higher than those given an English professor, that does not transform the physicist's work into work-for-hire.
3. Administration ownership of faculty scholarly works, lecture notes and teaching materials would profoundly contradict the practices of the academic community. Work for hire doesn't fit, legally or policy-wise, into the academic scholarship arena.
a) Academic freedom requires that faculty be free to produce work reflecting their own views and theories--not those of administration or trustees. If all work belonged to the university, then its content would also have to be controlled or at least accepted by the university, which would vitiate any freedom of thought or inquiry.
(1) "Institutions of higher education are conducted for the common good, and . . . [t]he common good depends upon the free search for truth and its free exposition." 1940 Statement of Principles on Academic Freedom and Tenure, AAUP Policy Documents & Reports 3 (9th ed. 2001).
(2) Courts have generally looked to employer control over the work as a deciding factor in determining work-for-hire ownership. While there is debate as to whether that control must be actual or simply be the right to exercise control, the focus on the employer's ability to direct the outcome remains.
b) In traditional academic works "the faculty member rather than the institution determines the subject matter, the intellectual approach and direction, and the conclusions." Thus it follows that the faculty member rather than the institution would have ownership. Statement on Copyright, AAUP Policy Documents & Reports 182-183 (9th ed. 2001).
(1) "Were the institution to own the copyright in such works, under a work-made-for-hire theory, it would have the power, [to control it] and indeed to censor and forbid dissemination of the work altogether. Such powers, so deeply inconsistent with fundamental principles of academic freedom, cannot rest with the institution." Id.
c) Not only is faculty control of its scholarly work required for academic freedom reasons, but in fact, administrations are usually happy to distance themselves from some of the scholarly work of the faculty.
(1) If the administration owned all the work of faculty, then it would be responsible for the content. Few administrations want to claim responsibility for every conclusion reached by faculty.
(2) If the institution owned the scholarly work of faculty, it would also be responsible for things like negotiating book contracts, publishing agreements, handling revisions and updates, etc. Few institutions have the desire or resources to take this on.
(3) Example: A professor at Brandeis wrote a book about the composer, Rebecca Clarke, and it was published by the University of Indiana Press. After publication, the owner of unpublished papers by Clarke contacted the press, claiming the book made unauthorized use of the papers. The press withdrew the book, but the owner of the papers also wrote to the professor's home institution, Brandeis University, asking questions about the "relationship" of the faculty member to the institution. The administration responded that the work was done by the faculty member as an "independent scholar," and that work of such scholars belongs to the scholar, and not to institution.
(4) Similarly, administrations struggle with ownership of faculty websites on university servers. Institutions don't really want to own everything on their servers, if they did, they would face liability for everything posted. They would thus have to closely monitor and control posting to every website, an impossible task. Thus most institutions walk the fine line between having some rules as to appropriate material for websites on the university server, but don't police the postings and don't claim ownership of faculty websites.
4. Little law exists in this area, and few court decisions deal directly with work-for-hire in higher education. However, there are a few prominent decisions in the federal courts finding that faculty authors own the copyright to their scholarly works.
a) Weinstein v. University of Illinois, 811 F.2d 1091, 1094 (7th Cir. 1987): This case involved multiple authors competing over control of an article. An assistant professor sued his college and the university regarding an article he co-wrote on "Teaching Problem Solving in a Post-Graduate Clinical Pharmacy Clerkship." (His co-authors had made changes he didn't agree with). The district court concluded that the article was the university's property because the university funded the clinical program which was the focus of the article. The court reasoned that because Weinstein was a clinical professor, he was required to conduct clinical programs and write about them as part of his appointment, and thus the article was a work-for-hire.
When the Dean told [the professor] to publish or perish, he was not simultaneously claiming for the University a copyright on the ground that the work had become a "requirement or duty.". . . . When Saul Bellow, a professor at the University of Chicago, writes a novel, he may keep the royalties.
b) Hays v. Sony Corp, 847 F2d 412 (7th Cir. 1988): This opinion, written by Chief Judge Posner (also a prolific professor at the University of Chicago law school) found that an exception for academic work from the work-for-hire doctrine could arguably still be read into the copyright act. "[T]he universal assumption and practice was that, in absence of an explicit agreement as to who had the right to copyright[,] such writing belonged to the teacher rather than to the college or university." The court also noted that although college faculty write as part of their employment responsibilities and use employer facilities and resources to do so, "[a] college or university does not supervise its faculty in the preparation of academic books or articles, and is poorly equipped to exploit their writings, whether through publication or otherwise."
5. Are Faculty "Employees," and is Their Work "Within the Scope of Employment"?
a) Employees: While the tradition in the academy is to view faculty as scholars affiliated with an academic institution, under the law there is little debate that professors employed on a salaried basis, with benefits, tax withholding and other symbols of employment, are employees. Those faculty working on a contingent basis, however, or on an adjunct or per course basis, might present a different picture.
(1) The distinction between work and personal development is a harder line to draw for faculty than other employees.
(a) Professors have the unusual responsibility, as part of their employment, to be creative and independent outside of class in their intellectual scholarly life. Thus the position of a professor requires an "employee" who researches and writes not to promote a particular viewpoint of the employer, but one who engages in an independent search for truth and knowledge. This model does not fit into the work-for-hire framework.
(2) As one commentator has noted, "insofar as custom plays a role in determining the intent of the parties to an employment contract, it defines, at least in part, what professors are hired to do. Thus, the longstanding assumption that professors own the copyrights to their works is evidence that the parties do not consider the creation of copyrightable works of authorship to be within the scope of employment." Laura Lape, Ownership of Copyrightable Works of University Professors: The Interplay Between the Copyright Act and University Copyright Policies, 37 VILL. L. Rev. 223 (1992).
(3) Another legal scholar has opined: "Because of the tradition of independence and judgment that are commonly associated with professional activities, the fact that the individual who prepared the work is a professional, such as an architect or university professor, will weigh heavily toward a finding that he, rather than his employer, is the author of ay works that he creates while in the other's employ." Paul Goldstein, Esq. Copyright, 2nd ed. §4.3.2 (Aspen Publishers 2005).
6. Specific Areas Within Scholarly Work.
a) Classrooms: Classrooms are also an area controlled primarily by faculty. Professors "are entitled to freedom in the classroom in discussing their subject," 1940 Statement, and materials prepared to facilitate classroom teaching should not generally be works-for-hire, but rather owned by the faculty member.
(1) "Academic freedom . . . . applies to both teaching and research . . . . Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning." 1940 Statement of Principles on Academic Freedom and Tenure, AAUP Policy Documents & Reports 3 (9th ed. 2001).
(2) AAUP policy provides that faculty must hold the copyright to "traditional academic works . . . [where] the faculty member . . . determines the subject matter, the intellectual approach and direction, and the conclusions . . . [T]traditional academic work that is copyrightable—such as lecture notes, courseware, books and articles—cannot normally be treated as work-for-hire." Statement on Copyright, AAUP Policy Documents & Reports 183 (9th ed. 2001).
(3) Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969): In a professor's suit to enjoin a publishing organization (known as "Class Notes") from selling notes of his lectures, Class Notes claimed in its defense that the professor did not own the copyright to his lectures, and thus could not bring the suit. The court concluded that it was "convinced that … the teacher, rather than the university, owns the common law copyright to his lectures." The court noted that "[no] custom known to us suggests that the university can prescribe [the professor's] way of expressing the ideas he puts before his students" and university ownership of faculty lectures would create such "undesirable consequences . . . as to compel a holding that it does not."
(4) To the extent that a classroom is controlled by the administration, however, the work-for-hire analysis would change. Thus departmentally designed courses were there is a prescribed syllabus or course content may not belong to the teacher. The extent that a course would be considered work-for-hire is tied directly to the amount of independence given the faculty member.
(a) In Hays v. Sony Corp, 847 F2d 412 (7th Cir. 1988), for example, even when the federal appellate court concluded that "[t]he universal assumption and practice was that, in absence of an explicit agreement as to who had the right to copyright[,] such writing belonged to the teacher rather than to the college or university," it noted that "we may set to one side cases where a school directs a teacher to prepare teaching materials and then directs its other teachers to use the materials too."
(5) Note, too, the conflict of commitment issues here. While classroom lectures are generally considered the property of the faculty, and faculty are presumed to have the right to take them when they leave the institution, the advent of distance education has led to questions of exactly when concurrent teaching, for example, would violate understandings of faculty time commitment.
(a) Arthur Miller, a well-know professor at Harvard Law School, became involved in a controversy with Harvard University after he provided videotaped lectures for the Concord University School of Law, an on-line law school, without Harvard's permission. The controversy clearly raised intellectual property concerns. As Miller posed the query, "How much of Arthur Miller does Harvard own?" It also raised the issue of how conflicts-of-commitment policies apply to online education or "electronic moonlighting." As one commentator noted: "[A]pplication of these general [conflicts of commitment] policies in the Internet era is not . . . straightforward. Why, for example, would the videotaping of a series of lectures for an online institution interfere with one's teaching and research responsibilities, if giving a series of off-campus lectures would not?" Jonathan R. Alger, "A. Miller's Tale: Free-Agent Faculty," Academe: Bulletin of the American Association of University Professors (May/June 2000). See AAUP Legal Information Outline, Faculty Employment Outside Of The University: Conflicts Of Commitment (Donna Euben, March 2004).
b) Syllabi: Some institutions argue that institutions exercise more control over the content of syllabi than they do over books or articles--the courses to be taught, topics that must be covered, and the overall offerings of the department. Institutions often require, for example, that certain provisions or disclaimers be included in syllabi, that syllabi be posted on the web, etc. Thus, some argue that faculty are hired to teach, that teaching and the by products thereof are thus within the scope of employment, and this additional control by the employer institution transform syllabi into work-for-hire.
(1) Once again, true ownership of syllabi will depend on control of the outcome. Generally faculty have control of most of the substance of their syllabi, and are presumed to have ownership of that syllabi.
(a) Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969) (professor has ownership of lectures)(discussed above). Such ownership would presumably have extended to the syllabus for that class under the Weisser reasoning.
(b) But see Vanderhurst v. Colorado Mountain College District, 16 F. Supp.2d 1297 (D.Colo. 1998). A professor and clinician in Veterinary Technology worked for Colorado Mountain College (CMC) on a series of annually renewable employment contracts for 22 years before being dismissed for misconduct. As part of a lawsuit regarding the dismissal, he claimed that CMC infringed his copyright to a "Veterinary Technology Outline" which was created "in the course of teaching at CMC." The court, noting that CMC's policies state that a faculty member's duties include "program and curriculum development [and] course preparations," concluded that the outline belonged to CMC as a work-for-hire. It reached this conclusion despite recognizing that "it is undisputed that Vanderhurst prepared the Outline on his own time with his own materials. However, there is no genuine dispute that Vanderhurst's creation of the Outline was connected directly with the work for which he was employed to do." Note however, that Vanderhurst was not a tenured or tenure track professor. Moreover, he eventually won his lawsuit against the university regarding his dismissal. The copyright issue was not raised or discussed in the appeal, but the appellate court upheld Vanderhurst's victory on the dismissal claim. Vanderhurst, 208 F.3d 908 (10th Cir. 2000).
c) Course descriptions: Course descriptions are another area where a faculty member's presentation of his or her scholarly approach to a subject might be subject to control, and thus ownership, by the university. More than syllabi and lectures, course descriptions prepared for the course catalog, for example, must follow certain strictures. Often institutions control the length, style and even content of such postings. Moreover, faculty are required to create descriptions of their courses in order for students to be able to enroll, arguably supporting the argument that such descriptions belong to the institution as works-for-hire. Again, however, even in such a situation, while the institution may own the description of a course created for that particular catalog, that does not mean it owns the course itself, or the course content.
a) Works by students as students are entitled to copyright protection, and belong to the students.
(1) Faculty need to get permission from students to copy and distribute their works just as they would any other copyrighted work. Some faculty address this issue by having students sign a waiver at the beginning of the class.
b) Works by students as employees are works-for-hire.
(1) To the extent students are being paid for work they do, their work is work-for-hire. This payment could take forms other than strict salary, like tuition reimbursement, etc. Again, however, the only work covered would be that directed by the employer and related to the employment. If a paid graduate assistant also does scholarly work during the time as a graduate student, that scholarly work would still belong to the student.
a) The copyright rules are vague, so don't just assume ownership for yourself.
b) Be aware of institutional polices, and be sure there is faculty participation in developing and revising such institutional policies.
c) Contract around the rules if they don't work for you.
(1) In any project that seems unusual, consider whether a separate contract might be useful. Work up front at setting ownership and expectations, especially on lucrative projects, joint works, grants, special university driven projects, etc., before you have used resources to create the next great on-line course. It is much harder to do it after the fact.
IV. How May Faculty Use the Works of Others?
1. Faculty are both creators and users of copyrightable material. As you use your colleagues' work, so too are they using yours. Would you be comfortable with your work being used in the way you are using the work of others?
2. Infringement of copyright is not to be taken lightly. Legal responsibility for copyright violations can be both direct and indirect. Thus, not only can you be responsible for direct copying you do, but you may be legally responsible even if you are only contributing to someone else's copying (infringement), as long as you act knowingly and make a material contribution to the infringement.
3. The copyright laws also contain significant penalties for copyright infringement, even if there are no real damages suffered by the "victim."
4. Attribution, while an important part of use and citation of others' work, and important for avoiding plagiarism concerns, is not a protection against copyright infringement claims.
5. Remember, use of any copyrighted material is a violation of copyright UNLESS it falls into one of the enumerated exceptions discussed below.
1. Fair use is a statutory exception to the general rule of copyright ownership. It affects or limits not who is considered the author and copyright holder, but rather the rights of that copyright holder. The doctrine provides that no matter who owns the copyright, certain uses are not considered a violation of that copyright.
a) The fair use exemption was initially judge created law; it evolved from case law. It was eventually codified in 17 U.S.C. §107, during the 1976 revision of the Copyright Act, and is now a statutory exception.
2. Notwithstanding its now-codified status, the fair use exemption is still vague and unclear, depending on the specific facts and circumstances.
3. Because of this lack of precision, fair use analysis can be extremely frustrating. As one court put it, the doctrine is "so flexible as virtually to defy definition." Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968).
4. Statutory Codification: See Appendix B, 17 U.S.C. §107 (Limitations on Exclusive Rights: Fair Use).
5. The fair use analysis is based on two basic concepts: the purpose of the use and the fairness of how that the work is used.
a) Purposes: The fair use doctrine says that copying for certain purposes will not be considered a violation of copyright because there are certain purposes where copying betters society.
(1) The statute sets out a non-exclusive list of purposes that are assumed to be of benefit to society and thus eligible for fair use protection. While this list does not include all possible fair use purposes, it can be viewed as setting out a premier set of uses that deserve preferred status in the application of fair use. See Robert A. Gorman, Copyright Law (Federal Judicial Center 1991).
(2) This "preferred" list includes uses crucial to faculty, such as criticism, comment, teaching, scholarship, and research, which form the basis for most of the classroom and research copying faculty do.
(a) This list, however, is clearly illustrative, not exhaustive. Note, for example, that the two Supreme Court cases addressing this issue, Harper & Row Publishers v. Nation Enterprises and Sony Corp. of America v. Universal Studios, Inc., do not seem to follow this list. Harper dealt with news reporting, one of the enumerated factors, but was found not to be fair use, and Sony dealt with private videotaping of television programs, a use clearly beyond the "preferred" list, yet was found to be fair use. (see further discussion of cases in IV.B.6 below.) It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials.
(3) The list of purposes includes use not only by citation or reference, but also by reproduction in copies, including multiple copies for classroom use. It is this particular provision that makes fair use the legal basis for much of classroom use of copyrighted materials.
b) Fairness Factors: The fair use analysis does not stop at the list of enumerated purposes, however. Courts also look at the way the materials are used for that purpose. The use must be fair. The statute sets out four factors for courts to consider in determining whether a use is fair use.
(1) The "purpose and character" of the use, which includes whether it is a commercial use or an educational and/or non-profit use.
(1) The idea is that if someone is profiting from use of a copyrighted material, the copyright holder should be benefiting from that use.
(a) This second factor is designed around the idea that there should be greater access to works of fact or information. The point of the copyright law is to increase public knowledge by encouraging creation of information, and thus factual, informative materials are more likely to be subject to fair use than purely entertainment based materials.
(b) This factor also can implicate the availability of the work. If the work is somehow unavailable (out of print, never reproduced, etc.) then this aspect of its nature would make it more likely to fall under fair use.
(c) Unpublished works would also receive special consideration under this factor. The rights of the author to control the distribution of the work and its presentation would weigh more heavily against a claim of fair use if the work had never been published, than if it had already been made available. See Harper & Row, 471 U.S. 539 (1985).
(1) Note however, that the drafters of the copyright law added the last sentence of the statute, "[t]he 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." The sentence makes clear that while the unpublished nature of a work is a consideration, it is not the only consideration nor a complete bar to a finding of fair use.
(3) How Much is Too Much? ("The amount and substantiality of the portion used in relation to the copyrighted work as a whole").
(a) The third factor is directed at whether the amount of work used is more than necessary to achieve the protected purpose. There is no magic amount of pages or particular number of words that makes copying fair use.
(b) Courts will look to whether the user took only what was necessary to effectuate the purpose of his or her use, or whether the copying exceeded that which was necessary to make the point.
(1) Example: In a case involving parody, a certain amount of use is necessary to evoke the work being parodied. But replaying a whole movie as part of creating a parody of that movie would be excessive copying. See, e.g., Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F. Supp. 351 (N.D. Ga. 1979)(court found that "Scarlet Fever," a musical based on Gone with the Wind, had so many similarities of character theme, dialogue, etc. that it was neither a parody nor a satire, but instead an unauthorized adaptation of the novel).
(c) Note, too, that work that was initially fair use under this factor may move outside of fair use protection with repeated use. Material distributed to one class with a limited number of students might be analyzed differently if that same material continues to be used class after class, or is distributed more widely through distance education or other means.
(d) This third factor also has a qualitative element, as well as quantitative. For example, in Harper & Row, the copied amount was a small portion of the total book, but because it was the heart of the work (and the most commercially important part (see 4 below)), the court considered its copying not to be fair use.
(a) Courts use this fourth factor to look at who is profiting from the work, both now and in the future.
(b) Courts consider not just actual harm, but potential harm. See, e.g., Harper & Row, 471 U.S. at 568 (To negate a fair use claim, a copyright holder must only show "that if the challenged use 'should become widespread' it would adversely affect the potential markets for the copyrighted work.").
The appellate court reversed the trial court's judgment, concluding as a matter of law that the home use of a VTR was not a fair use because it was not a "productive use." It found that most VTRs are sold "for the primary purpose of reproducing television programming" and that "[v]irtually all" such programming is copyrighted material. Moreover, the court noted that while it was not necessary for plaintiffs to prove any harm to the potential market for the copyrighted works, it did seem clear that the cumulative effect of mass reproduction could diminish the potential market for the copied works.
The Supreme Court, perhaps mindful of the enormous popularity of VTRs, disagreed with the appellate court and reversed it. The Court concluded that the primary use of the machine for most owners was "time-shifting," the practice of recording a program to view it at a later time and later erasing it. It then went on to conclude that the evidence showed a significant likelihood that a large number of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted, and that no likelihood existed that time-shifting would cause significant harm to the potential market for, or the value of, the TV programmers' copyrighted works. Accordingly, the Supreme Court determined that the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.
b) Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985): In this case involving the memoirs of former President Gerald Ford, Harper & Row publishers had a contract to publish the memoirs, and an agreement with Time Magazine to allow Time to publish certain portions of the manuscript ahead of time. Before Time's article came out, however, the Nation magazine obtained a copy of the manuscript and published an article on it. The Nation's article used excerpts from Ford's manuscript, including portions discussing Ford's pardon of former president Nixon.
Harper & Row sued the Nation, arguing copyright infringement, and the district court agreed. The appellate court, however, found the Nation's use of the material to be fair use. The court determined that the portion of the material that was historical facts, quotations and information from public documents could not be considered copyrightable, and noted that once that material was removed, there were only about 300 copyrightable words remaining. The court, heavily influenced by the "politically significant" nature of the subject matter, and noting that the purpose of the copyright act is not to "chill the activities of the press by forbidding a circumscribed use of copyrighted words," determined that the purpose of the article was newsreporting and therefore fair use.
The Supreme Court disagreed, finding that the "Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors." The Court noted particularly the unpublished nature of the work, and that the use, while fairly small, took the most marketable, "heart" of the work. It also concluded that an author should have control of the first release of a work and that "[u]nder ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use." Finally the Court noted that "[t]he obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation outweighs any short-term 'news value' to be gained from premature publication of the author's expression," and that "[t]he fact that the words the author has chosen to clothe his narrative may of themselves be 'newsworthy' is not an independent justification for unauthorized copying of the author's expression prior to publication."
(1) Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996): An academic publisher sued a copy shop that bound segments of scholarship into "course packs" for copyright infringement. The court found that the fair use doctrine did not obviate the need to obtain permission to reproduce the works. The court explained that the fair use doctrine "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." At the same time however, the court decided that the fair use doctrine allowance of multiple copies of classroom use does not provide "blanket immunity." The court reasoned that the factor regarding "the effect of the use upon the potential market for or value of the copyrighted work" was "the most important factor" in the fair use exemption, and ruled that the publishers established a "diminution in potential market value." The court also noted that the professors assigned as much as 30 percent of one copyrighted work, and found that amount not "insubstantial."
(a) Publishers continue to file cases against copyshops selling coursepacks. See Elsevier Science v. Custom Copies and Elsevier Science v. Westwood Copies, Inc.: These cases were brought by various presses against copyshops selling coursepacks to students at the University of Florida at Gainesville and at UCLA. In both cases the copyshops settled with the publishers for an undisclosed amount in 2003.
a) Consider whether, if others used your work as you are contemplating using theirs, would you lose money? Would you consider it a sufficiently limited and justifiable reference? Would you have wanted them to ask permission? Pay a fee? Would you have been willing to give permission if you had been asked?
b) Would you be upset? The Supreme Court has referred to this approach as the "equitable rule of reason;" "[Perhaps] no more precise guide can be stated than Joseph McDonald's clever paraphrase of the Golden Rule: 'Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.'" Harper & Row, 471 U.S. 539, 550 n. 3 (citing 3 Nimmer § 13.05[A], at 13-66, quoting McDonald, Non-infringing Uses, 9 Bull. Copyright Soc. 466, 467 (1962)).
c) Remember that acknowledging the source is important in research, but does not substitute for permission in using the work.
d) Keep in mind that the users' inconvenience is not a factor in the fair use analysis. Therefore, the fact that the piece is really needed for class tomorrow, or that the faculty member doesn't have the phone number of the author or the money to pay for use are not valid excuses.
(2) Consider whether the copyshop gets permissions for you, or whether you need to follow up yourself.
(3) Be brief and sparing in excerpts.
(a) If use of a work is truly spontaneous, you might be able to argue fair use, but if you have time to get permission, do so. Note too that even if the first use is spontaneous, you will still need to get permission for future uses, as the spontaneity argument will not be available with repeated use.
a) Many of the same considerations for fair use exist in the electronic classroom as exist in the traditional classroom. However, the electronic classroom amplifies all the risks of the traditional classroom.
(1) Every time you download a web page, you are copying someone's work. The web is essentially one big photocopier; every time you view a webpage, or forward an email, you are making copies of it. That consideration becomes increasingly important when you start moving beyond downloading for your own research and begin to distribute that webpage to students around the country or globally.
(2) Similarly, posting something on your own webpage can be a violation of the author's copyright, even if you got it from another webpage, and even if you attribute it.
(a) Example: A lawsuit was filed by an author against colleges and universities for allegedly allowing people to use their webservers to post copies of his self published book on income tax laws. While the institutions may be protected because they are only involved as owners of the servers, not controllers of the individual websites, (and the courts dismissed the case against the webserver operators), the faculty or other members of the university community who may have posted the book could be liable for copyright infringement. "Colleges Are Unconcerned by Online Author's $2.6 Billion Copyright Lawsuit," Chronicle of Higher Education (March 7, 2002); Mitchell v. AOL Time Warner Inc., et al., 2002 U.S. App. LEXIS 26313 (December 2, 2002).
b) The greatest risk of technology is that it means more people see what you are doing. You are "on the radar screen" much more when you post something on the web than when you discuss it in a traditional classroom.
c) Greater publication also means greater harm to the copyright holder. The more you cover the market by your use of the copyrighted work the more potential financial harm to the person whose copyright is violated.
d) Materials presented on the web have a much longer lifespan than hard copies in traditional classrooms. They tend to have a life of their own, staying up and accessible for years, increasing the risk of infringement and liability.
1. Section 110 is another statutory exemption to the bundle of rights belonging to the copyright holder. It sets out certain uses that will not be considered violations of copyright.
a) Originally passed in 1976, it was designed to deal with the then looming onset of televised education. Thus it covered face-to-face classroom performances of copyrighted works, including dramatic works, for teaching purposes in nonprofit educational institutions.
b) The statutory provision was made obsolete by the advent of web-based distance education, however, and the statute was in need of amendment for many years.
2. Congress finally passed the Technology, Education, and Copyright Harmonization (TEACH) Act in 2002. It amends Section 110 so that while the section continues to deal with the performance of nondramatic literary and musical works, it also addresses issues of asynchronous, web-based distance education.
3. Section 110 is different from Section 107 (fair use) because Section 110 doesn't require the use to be fair. There is no balancing of factors or analysis of motive. Rather, it sets out specific limited uses that are automatically protected. The flip side is that the teacher exemption is also more limited than fair use; it sets out very specific uses and very specific criteria, and is thus much narrower than fair use.
4. Statutory Language (See Appendix B, 17 U.S.C. §110, Limitations on Exclusive Rights: Exemption of Certain Performances and Displays).
(2) which are presented in a classroom or similar place devoted to instruction.
(3) a display of still images in amounts typical of face-to-face displays in classroom.
(a) thus there must be protections to ensure, "to the extent technologically feasible," that web postings, for example, are not accessible to those other than the enrolled students.
(5) The institution must adopt and maintain institutional policies on copyright and give notice that materials might be copyrighted, which means that the institution must not only have a copyright policy, but must provide copyright notices, and inform faculty, students and relevant staff about copyright law.
(a) any copy that is "not lawfully made and acquired,"
a) The statutory exemption, although broadly titled, is limited to very specific situations.
b) It is not a replacement for fair use.
c) It provides some more options than fair use, but faculty must be careful of all the caveats.
d) As more institutions adapt to this new law, look for institutional guidance to be forthcoming regarding institutional policies, notices and protections. Faculty should be involved in such discussions, and should pay close attention to both the policy development process and the resulting official policies of the institution.
e) This provision may eventually be very helpful to faculty. It presents an unusual scenario however, because while the protections it provides benefit faculty use of material in the classroom, the caveats it includes are primarily controlled by the administration. Thus a faculty member who relies on this provision may run into trouble of technological and policy protections are not in place as required, even thought the faculty member may have little control over the implementation of such protections. Thus faculty should be faculty should be careful about relying too heavily on its provisions before investigating what policies and protections are already in place.
Note, however, that this unusual circumstance provides a good opportunity for faculty to work with the administration toward a common goal of providing grater copyright protection for classroom use of materials while at the same time preventing institutional and faculty legal liability.
AAUP compiles articles (from Academe and elsewhere), commentary, institutional policy development, legislative information, and AAUP policies on the Intellectual Property section of its website.
The Yale Library has a website with an extensive list of copyright links and resources, from links to the law itself to tutorials discussing particular issues. http://www.library.yale.edu/~okerson/copyproj.html.
The American Library Association (ALA) and the Association of Research Libraries (ARL) recently released a statement on "Applying Fair Use in the Development of Electronic Reserves Systems." That statement, along with other sample institutional policies, is available at http://www.arl.org/access/eres/eresfinalstmt.shtml.
Stanford University Libraries also have an extensive Copyright and Fair Use website, including links, informational materials and tutorials: http://fairuse.stanford.edu/.
Georgia Harper in the University of Texas System Office of General Counsel is Manager of the Intellectual Property Section of the institution's website, and a renowned expert in copyright law. She has created a site with very useful resources, including a crash course in copyright and other faculty centered information: http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm.
The United States Copyright Office has a website with many resources, including links to the entire copyright law and regulations: http://www.copyright.gov/.
The Copyright Management Center managed by Professor Ken Crews of the Indiana University-Purdue University at Indianapolis Law School includes a number of valuable resources: http://www.copyright.iupui.edu/.
1. EG: A book on a new way of teaching: copyright will protect the book, and no one can copy the book or distribute without the author's consent. But that doesn't protect the method of teaching described in the book. Anyone can take that method and apply it, unless the method is patented.
2. Allows trademark owners to prevent others from passing off separate work as produced by a known entity.
1. Copyright protection only protects against copying of the design, image or words. Trademark can protect against use of confusingly similar marks, even if they were created independently, without copying.
2. But, copyright begins the minute the work is fixed, and can protect against copying without any need to prove use in commerce or confusion by consumers.
1. Copyright holders have the right to reproduction, translation, abridgment, revision (derivative works), public distribution, public performance and display. Back to text.
17 U.S.C. § 101 et. seq.
Ownership of copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy of phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
(b) WORKS MADE FOR HIRE. - In the case of a work made for hire, the employer or other person from whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all the rights comprised in the copyright.
(b) WORKS MADE FOR HIRE. - In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
In paragraph (2), the term "mediated instructional activities" with respect to the performance or display of a work by digital transmission under this section refers to activities that use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting. The term does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use.
(B) with respect to an institution providing elementary or secondary education, shall be as recognized by the applicable state certification or licensing procedures.
For purposes of paragraph (2), no governmental body or accredited nonprofit educational institution shall be liable for infringement by reason of the transient or temporary storage of material carried out through the automatic technical process of a digital transmission of the performance or display of that material as authorized under paragraph (2). No such material stored on the system or network controlled or operated by the transmitting body or institution under this paragraph shall be maintained on such system or network in a manner ordinarily accessible to anyone other than anticipated recipients. No such copy shall be maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary to facilitate the transmissions for which it was made.


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Expert Testimony in Maryland: Frye-Reed or Daubert?
Laws undoubtedly evolve over time. However, is there ever a point when a law evolves into an entirely new law? Many states use federal laws as guidance for creating new state laws. Michael Morgenstern, Daubert v. Frye – A State by State Comparison, The Expert Inst. (Apr. 3, 2017), https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison. However, if the state law evolves into the federal law, should the state simply adopt the federal law? This is the current dilemma in Maryland courts regarding the evidentiary rule for evaluating scientific expert testimony. The state is holding onto the name of its Frye-Reed test, but the test’s application is becoming more like the federal Daubert test. Sissoko v. State, 182 A.3d 874, 892 (Md. Ct. Spec. App. 2018).
Pursuant to Maryland Rule 5-702, the Frye-Reed test is Maryland’s standard for valuating scientific expert testimony. Md. R. 5-702; Reed v. State, 391 A.2d 364, 372 (Md. 1978). The test is a combination of federal and state case law. See id. In 1923, Frye established the general acceptance test for evaluating expert testimony. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The Frye test requires determining whether the expert’s opinion is generally accepted in the expert’s field. Id. at 1014. If so, the opinion is held reliable and admissible in court. Id. In 1978, Maryland adopted the Frye test when deciding Reed, thereby creating the Frye-Reed test. Reed, 391 A.2d at 372. At that time, the Frye-Reed test stated (1) the expert’s opinion must be generally accepted within that field and (2) be based on a technique that is deemed reliable. Id. Unlike Frye, however, Frye-Reed allows expert opinions to be based on new and controversial, but reliable, techniques. Id. at 368.
In 1975, the Federal Rules of Evidence (FRE) were enacted. FRE Legislative History Overview Resource Page, Fed. Evidence Review, http://federalevidence.com/node/638 (last visited Sept. 16, 2018). FRE 702 addressed evaluating expert testimony. Fed. R. Evid. 702. In 1993, the Supreme Court in Daubert held FRE 702 superseded the Frye test. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588–89 (1993). The Court reasoned the language of FRE 702 did not make general acceptance an absolute requirement when evaluating expert testimony. Id. Thus, the Supreme Court established the Daubert test, which requires the court to determine whether the underlying methodology of an expert’s opinion is scientifically valid. Id. at 592–93.
In Daubert, the Supreme Court identified four factors to consider when determining whether a methodology is scientifically valid: (1) whether the theory or technique can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance. Id. at 593–94. The Court emphasized that the Daubert test is “flexible” and focused on the methodologies used, rather than conclusions drawn from them. Id. at 594–95.
This Rule is not intended to overrule Reed v. State, 283 Md. 374 (1978) and other cases adopting the principles enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The required scientific foundation for the admission of novel scientific techniques or principles is left to development through case law. Compare Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
Since Rule 5-702 was established, Maryland courts have appeared to struggle with evaluating expert testimony. Does it apply to new and/or old scientific methodologies? Yes—it applies to new and old scientific methodologies. See Clemons v. State, 896 A.2d 1059, 1061 (Md. 2006); see also Montgomery Mutual Ins. Co. v. Chesson (Chesson I), 923 A.2d 939 (Md. 2007). Does passing the Frye-Reed test mean Maryland Rule 5-702 is automatically satisfied? No. See Exxon Mobil Corp. v. Ford, 71 A.3d 105, 138 (Md. 2013); see also Roy v. Dackman, 124 A.3d 169, 180–81 (Md. 2015). Is Maryland ready to adopt the Daubert test? As of 2017, the Court of Appeals of Maryland says no, but preceding and subsequent case law suggests otherwise. See Savage v. State, 166 A.3d 183, 195 (Md. 2017); see also Blackwell v. Wyeth, 971 A.2d 235, 260 (Md. 2009); see also Sissoko, 182 A.3d at 892.
In Blackwell, the Court strongly relies on the Daubert test. Blackwell, 971 A.2d at 254–58. The Blackwell court first considers the “analytical gap” assessment in Maryland. Id. at 254–56. The “analytical gap” assessment, a Daubert standard, precludes expert opinions with gaps between the expert’s conclusion and the methodologies used to draw that conclusion. Id. The Blackwell court also relies on Daubert’s gatekeeping metaphor. Id. at 256–58.
The Maryland Court of Appeals most recently expanded the scope of the Frye-Reed test towards the Daubert test in Savage. Savage, 166 A.3d at 198–202. In Savage, the Court held that the Frye-Reed test requires the “analytical gap” assessment and even applies to generally accepted methodologies. Id. at 195. Judge Adkins, joined by Chief Judge Barbera and Judge McDonald, wrote Savage’s concurring opinion. Id. at 204. The concurrence agrees with the court’s decision but rejects the continuation of Frye-Reed and urges Maryland to adopt the Daubert test. Id. The concurrence also notes that the drastic evolution of the Frye-Reed test has made its application unclear. Id. at 207–11. Additionally, the concurring opinion states that Maryland’s adoption of Daubert would allow Maryland to rely on other case law when faced with new challenges, because the majority of states have adopted Daubert. Savage, 166 A.3d at 211.
The sentiments expressed in the Savage concurrence are echoed in Sissoko. Sissoko, 182 A.3d at 892–95. The opinion repeatedly cites the Savage concurrence in its application of the Frye-Reed test. Id. Essentially, the Court explains that the recent evolution of the Frye-Reed test has caused it to overlap with the Daubert test. Id. The Court even notes that many components of the tests have “melded into one.” Id. at 898.
Maryland’s adoption of the Daubert test seems inevitable and near. At the time Maryland Rule 5-702 was enacted, the Frye-Reed test and the Daubert test were distinctly different. Reed, 391 A.2d at 372 (Md. 1978); Daubert, 509 U.S. at 588–89. Nearly twenty-five years and dozens of cases later, the two tests are nearly identical. See Sissoko, 182 A.3d at 892. Clearly, the Frye-Reed test has evolved because of the influence of the Daubert test. Savage, 166 A.3d at 197–98; Blackwell, 971 A.2d at 254–58. Savage’s concurrence and Sissoko’s opinion show a judicial desire to adopt the Daubert test in Maryland. Savage, 166 A.3d at 204; Sissoko, 182 A.3d at 892–95.
Additionally, Maryland is one of ten states that has retained some form of the Frye test. FRE Legislative History Overview Resource Page, Fed. Evidence Review, http://federalevidence.com/node/638 (last visited Sept. 16, 2018). As noted in the Savage concurrence, adopting the Daubert test would allow Maryland to rely on significantly more case law when faced with new challenges regarding expert testimony. Savage, 166 A.3d at 211.
It is completely understandable for states to want to follow their own precedent. It makes even more sense for states to be hesitant to abandon their law to adopt a new non-preemptive federal law. However, when a state law consistently relies on a federal law, to the extent that the laws have morphed into one, the state should adopt the federal law. Savage, 166 A.3d at 211–12. Thus, it is my prediction that Maryland will likely abandon its Frye-Reed test and adopt the Daubert test.
*Reginald Smallwood is a second-year student at the University of Baltimore School of Law, where he is a staff editor for the University of Baltimore Law Review and a Scholar for the Fannie Angelos Program for Academic Excellence. He is currently interning for the Hon. George L. Russell, III in the U.S. District Court for the District of Maryland. This past summer, Reginald was a summer associate at Gallagher, Evelius, & Jones. Next summer, Reginald will serve as a summer associate at Miles & Stockbridge.

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