Today we commemorate Fair Use Week, a week-long celebration of the doctrines of fair use and fair dealing.
Creative Commons is proud of how its licenses respect fair use and other exceptions and limitations to copyright. CC licenses end where copyright ends, which means you don’t need to comply with a CC license if you don’t need permission under copyright. You will hear us repeat this fundamental design principle about our licenses often because it is important in practice, but even more so as policy. Anything that claims to grant “permission” to do things allowed under fair use is problematic because it promotes “permission culture” and increases FUD (fear, uncertainty and doubt) about fair use. This maxim goes for open licensing just as it does anything else, which is what makes the treatment of fair use in our licenses so important.
Even so, there remains some potential tension between open licensing and fair use. There are a few reasons for this. The first is that relying on fair use to include content in an otherwise openly-licensed work can make it difficult for people around the globe to reuse your work. While most countries have some form of fair-use-like rights, those rights are not harmonized internationally. That means it is possible that the portion of your work used under fair use would have to be carved out before it is reused in some jurisdictions. Proper marking of what content falls outside the scope of the license can help minimize this problem.
The other potential tension results from the gray area around where fair use begins and ends. Thanks in no small part to the work of Peter Jaszi and Patricia Aufderheide, the public has a much better idea of how fair use plays out in practice than it used to. But inevitably, some challenging fair use questions remain. When reusers are faced with those close cases, some opt to use CC-licensed work instead of relying on fair use of an all rights reserved work. By providing a licensed alternative, CC licenses provide a nice cushion for fair use in those situations. But in other contexts, reusers have to decide whether to rely on fair use when reusing a CC-licensed work. While it is common practice to give attribution when using something under fair use, complying with other CC license restrictions is often impossible when relying on fair use. This is exactly how it should be. As we know, using a work under fair use means the CC license is irrelevant and the license terms do not apply.
Creative Commons never discourages reusers from relying on fair use or other exceptions or limitations to copyright, even when that means not complying with a CC license. Respect for fair use was written into the code of our licenses from the start, and that has not changed. We recognize that fair use is a muscle, and it needs to be exercised. Now go workout.No Comments »
We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
Today’s topic is about supporting fair use, a legal doctrine in the United States and a few other countries that permits some uses of copyrighted works without the author’s permission for purposes such as parody, criticism, teaching, and news reporting. Fair use is an important check on the exclusive bundle of rights granted to authors under copyright law. Fair use is considered a “limitation and exception” to copyright.
One area of particular importance within limitations and exceptions to copyright is the practice of text and data mining. Text and data mining typically consists of computers analyzing huge amounts of text or data, and has the potential to unlock huge swaths of interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel scholarly discoveries and critical scientific breakthroughs. Because of this, text and data mining is increasingly important for scholarly research.
Recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from copyright. And as the European Commission conducts their review of EU copyright rules, some groups have called for the addition of a specific text and data mining exception. Copyright for Creativity’s manifesto, released Monday, urges the European Commission to add a new exception for text and data mining, in order to support new uses of technology and user needs.
Another view holds that text and data mining activities should be considered outside the purview of copyright altogether. The response from the Communia Association to the EU copyright consultation takes this approach, saying “if text and data mining would be authorized by a copyright exception, it would constitute a de facto recognition that text and data mining are not legitimate usages. We believe that mining texts and data for facts is an activity that is not and should not be protected by copyright and therefore introducing a legislative solution that takes the form of an exception should be avoided.” Similarly, there have been several actions advocating that “The right to read should be the right to mine.”
Whether text and data mining falls under a copyright exception or outside the scope of copyright, it is clearly an activity that should not be able to be controlled by the copyright owner. But unfortunately, that is exactly what some incumbent publishing gatekeepers are trying to do by setting up restrictive contractual agreements. One example we’ve seen of this practice is with the deployment of a set of “open access” licenses from the International Association of Scientific, Technical & Medical Publishers (STM), many of which attempt to restrict text and data mining of the licensed publications. In jurisdictions such as the United States, users do not need to ask permission (or be granted permission through a license) to conduct text and data mining because the activity either falls outside of the scope of copyright or is squarely covered by fair use.
Ensuring that licenses give copyright owners no more control over their content than they have under copyright law is a fundamental principle of CC licensing. That’s why the licenses explicitly state that they in no way restrict uses that are under a limitation or exception to copyright. This means that users do not have to comply with the license for uses of the material permitted by an applicable limitation or exception (such as fair use) or uses that are otherwise unrestricted by copyright law, such as text and data mining in many jurisdictions.
Today’s topic of fair use rights reminds us that “for copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.” To liberate the massive potential for innovation made possible by existing and future types of text and data mining, we need user-focused copyright policy that enables these new activities.
This Friday, School of Open and Creative Commons affiliates in Colombia are throwing a celebration of the Web We Want that will highlight open licensing, copyright reform, and free culture. The event takes place as part of the Creative Commons Film Festival in Bogotá. Its purpose is three-fold:
- 1) To launch a campaign to promote fair use in copyright reform that is pending Colombia. This campaign is named, Liberen la cultura or Let’s set culture free.
- 2) To support the Colombian biologist Diego Gómez, who is facing a criminal case against him for copyright infringement. This campaign is named #CompartirNoEsDelito or #sharingisnotacrime.
- 3) To promote live music, books, magazines and films under CC licenses.
As part of both campaigns, affiliates will hold a Licenciatón, a day of awareness, learning and practice for open licensing and its relationship to free culture. This activity incorporates portions of the School of Open course, ABC del derecho de autor para bibliotecarios de América Latina (ABC of Copyright for Librarians in Latin America). Promotional material about the course will also be shared.
Colombian volunteer Maria Juliana says,
We are pleased to announce that as part of the Creative Commons Film Festival, the program will include a Celebration of the Internet, a space that seeks to unite all of us who are interested in an open web where we can contribute and share content freely — a space to celebrate the Web We Want!
We will be celebrating with our friends “Radio Pachone” and our special guests will be: “La Real Academia del Sonido” and “Radio Mixticius”.
The celebration takes place thanks to “A Year of Action” campaign of Web We Want, this campaign convocated organizations around the world to generate actions to celebrate 25 years of the web; we are one of the organizations which benefited.
Date: Friday, September 26, 2014
Time: 4pm-11pm (Bogotá, Colombia time)
Location: The Raid (Calle 17 No. 2-51 La Candelaria, Bogotá.) Free entrance.
Learn more about the event and its partners at http://karisma.org.co/?p=4609.
About the School of Open
The School of Open is a global community of volunteers focused on providing free education opportunities on the meaning, application, and impact of “openness” in the digital age and its benefit to creative endeavors, education, and research. Volunteers develop and run courses, workshops, and real world training programs on topics such as Creative Commons licenses, open educational resources, and sharing creative works. The School of Open is coordinated by Creative Commons and P2PU.Comments Off
It has come to our attention that the Motion Picture Association of America, the Recording Industry Association of America, and top internet service providers are drafting curriculum to teach kids in California elementary schools that copying is wrong, or as Wired.com puts it, “Downloading is Mean!”
This message is way too simple. In this digital age, the most important thing we should be teaching kids is to be creative and take full advantage of all the web has to offer. Copyright, asking permission, open licensing, and all the other legal nuances, should be seen as secondary (and even complementary) to this purpose. We should be starting with the things kids can do versus what they can’t do.
In addition to the campaign’s overly simple and negative approach, other issues include the complete absence of fair use from the curriculum — exceptions and limitations to copyright that allow various uses of copyrighted materials for educational, journalistic and other purposes. Wired.com reports, “Its president, Marsali Hancock, says fair use is not a part of the teaching material because K-6 graders don’t have the ability to grasp it.”
Assuming the net generation and their younger counterparts are as dumb as assumed in the above statement, the curriculum still leaves out a crucial and growing part of the Internet landscape — the commons of free and open materials in the public domain and/or released under open licenses that actually encourage copying, redistribution, revision, and remix! In short, everything this simplified anti-piracy campaign is conveniently leaving out in its copyright curriculum for kids.
There is a more balanced approach to educating kids about copyright that includes the alternatives, and here are some organizations and experienced educators who have developed copyright curricula. The following list of resources are open educational resources (OER), licensed under a CC license that enables free and legal reuse, redistribution and remix. In short, stuff that is free and just fine and even great to copy!
Copyright curriculum for kids
Common Sense Media’s K-12 Digital Literacy & Citizenship Curriculum
Common Sense Media has developed a comprehensive K-12 Digital Literacy & Citizenship Curriculum for educators to use in their classrooms. Part of the curriculum focuses on Creative Credit & Copyright, which you can navigate easily via their Scope & Sequence tool. The resources are aligned to Common Core standards and licensed under CC BY-NC-SA.
New Media Rights Copyright FAQ Videos
New Media Rights has developed a series of short Copyright FAQ YouTube videos (because what better way to interact with youth but through YouTube?) answering common questions about copyright and the public domain. These videos are drafted by lawyers and read by students and are licensed under CC BY.
Electronic Frontier Foundation’s Teaching Copyright Curriculum
EFF developed this copyright curriculum for teachers to use in the classroom several years ago to counter campaigns like the one above, proving that topics like fair use can be taught! Teachingcopyright.org is available under CC BY.
Australia’s Smartcopying Guide for Schools and Interactive Resource for Kids
Australia has an official website for its schools regarding copyright for educators and students. However, this website, called Smartcopying, doesn’t just cover Australian copyright law — it also covers open educational resources and Creative Commons licenses. It’s quite the comprehensive resource with lesson plans, info sheets, videos, and more, and is licensed under CC BY-SA. This includes All Right to Copy, an interactive web activity “designed to teach students about copyright, and how it impacts them as both users and creators.” These resources are useful even if you’re not Australian, so check it out at http://www.smartcopying.edu.au/ and navigate using the horizontal menu to the topic of your choice.
National Library of New Zealand’s Free to Mix Guide for Educators
The National Library of New Zealand takes a different approach to copyright education; instead of focusing on what students can’t do, it focuses on what teachers and students can do with its Free to Mix guide. The guide was popular enough to spin off its own remix by CC New Zealand (pdf) with beautifully done graphics. Both versions are licensed under CC BY.
Shared Creations: Making Use of Creative Commons
Emily Puckett Rogers and Kristin Fontichiaro with the University of Michigan created this short and colorful lesson plan book for elementary school teachers that covers copyright, the public domain (even trademarks and patents!), and Creative Commons. This book is short and sweet with age-appropriate activities (that are even fun for adults). You can browse the book for free online or purchase a hard copy at the publisher’s website. The book is licensed CC BY-NC-SA.
School of Open’s Copyright 4 Educators
The School of Open, a community of volunteers around the world providing free education opportunities on the meaning and impact of openness in the digital age, offers an online course called Copyright 4 Educators. While this course (offered as adapted to both US and AUS law, but open to anyone) is primarily designed for educators and not kids, teachers can take what they’ve learned and then relay it to their students. The School of Open also offers more kid-friendly resources such as Get CC Savvy, Teach someone something with open content, and numerous lesson plans and activities integrated in CC for K-12 Educators. All School of Open courses on the P2PU platform are licensed under CC BY-SA; others hosted elsewhere may be licensed under CC BY.
This list is not exhaustive; if you know of other copyright education resources, please share them below! And if you would like to contribute to providing free copyright, OER, or CC education opportunities for kids (or adults), please join the School of Open community in its efforts! Visit http://schoolofopen.org/ to get started.2 Comments »
The Peer 2 Peer University, more commonly known now as P2PU by a growing community of self-learners, educators, journalists, and web developers, launches its third round of courses today, opening sign-ups for “courses dealing in subject areas ranging from Collaborative Lesson Planning to Manifestations of Human Trafficking.”
P2PU is simultaneously launching its School of Webcraft, which is a collaboration with the Mozilla Foundation and “is a powerful new way to learn open, standards based web development in a collaborative environment. School of Webcraft courses include Beginning Python Webservices and HTML5.”
In addition, Creative Commons Counsel Lila Bailey is co-facilitating the Copyright for Educators course this round, which will focus on United States law. The course is “for educators who want to learn about copyright, open content material and licensing” and “is taught around practical case studies faced by teachers when using copyright material in their day to day teaching and educational instruction.” For more information, see the course page.
Sign-ups for all other courses are available at http://p2pu.org/course/list. The deadline to sign up is September 8, and courses will run until October 27th. All courses are free to take and openly licensed under CC BY-SA. For more information, see the full announcement, but stay tuned for more courses!Comments Off
The Center for Social Media at AU has released a Code of Best Practices in Fair Use for OpenCourseWare. From the press release,
“OpenCourseWare, the Web-based publication of academic course content launched in 2002 by the Massachusetts Institute of Technology (MIT) has been lauded for making college-level courses available to anyone anywhere in the world for free. The movement has expanded to include offerings from some of the nation’s most selective universities including the University of Notre Dame and Yale University…
Now, educational organizations have a guide that simplifies the legalities of using copyrighted materials in open courseware—The Code of Best Practices in Fair Use for OpenCourseWare. The code was developed by experts in media and fair use at American University and a committee of practitioners of open courseware from Johns Hopkins Bloomberg School of Public Health, MIT, Tufts University, University of Michigan, University of Notre Dame, and Yale University…
The code aims to help OCW designers at U.S. educational organizations recognize situations to which fair use applies and situations that require they get permission from third-party rights holders.”
Last month, ccLearn published “Otherwise Open: Managing Incompatible Content in OER“. For those of you who never got around to reading the paper, it basically provides an overview of the problem posed by the incorporation of “all-rights-reserved” materials into otherwise open educational resources (OER). It also explores ways of dealing with this problem and the trade-offs involved in relying on jurisdictional copyright exceptions and limitations, such as fair use or fair dealing. As the paper is intended to spur further inquiry and research globally, “Otherwise Open” does not offer concrete solutions to the problem right now.
However, the average OER creator cannot afford to wait, especially if they value their work as part of a global learning commons. In order for OER to be global, the copyright of the OER must be viable across jurisdictions. OER that are available under a CC license are global, as CC licenses are effective worldwide. But the inclusion of third party content that is not under the same terms of the license changes the global nature of OER, potentially walling it off from use in other countries. Thus, ccLearn has developed some practical recommendations and alternatives for those OER creators who are concerned with the global reach and impact of their works.
“Open Educational Resources (OER) are defined by the use of a Creative Commons license and are generally created by those who would like to share their work globally. However, some creators find the need to consider the costs and benefits of incorporating third-party materials with incompatible licenses into their “otherwise open” OER. This document recommends ways of managing or avoiding the problems that will arise.”
This and all ccLearn Recommendations and productions are licensed CC BY.Comments Off
For those of you in the NY area in October, the New York City Bar has a thought provoking panel discussion coming up on fair use in the era of blogging, Twitter, and Facebook. The panel members hail from the U.S. District Court, the Associated Press, and Harvard’s Berkman Center for Internet and Society, to name a few. And in the spirit of this topic, I’m going to quote from the site now,
“This panel discussion will address the ways in which copyright law’s fair use doctrine has evolved (or may be tested) in an era in which the rise of news aggregation, social networking, and a variety of other websites increasingly allow internet users to combine and transform content from endless sources of media. How transformative are on-line montages and mash-ups? Is the aggregation of headlines or content from news providers infringement or fair use? Does posting copyrighted content on a user’s Facebook or Myspace page undermine the market for that content? When does a blogger’s summary of an article appropriate enough content to constitute copyright infringement? Panelists will offer a broad range of perspectives on these an other issues from the bench, bar, media industry, and legal academy.”
The discussion will be held on Wednesday, October 7 at 6pm, so be sure to register (for free) and drop by.Comments Off
Thanks to all of you who filled out the OER Copyright Survey! The survey is now closed, with many thoughtful responses. Again, we appreciate your responses, among which was an overarching request to have the survey translated. We definitely hope and intend to broaden the survey to more countries and in more languages in the future, and are open to ideas and support. Please contact us if you, an individual you know, or a project/organization you are in touch with is interested in participating in the next stages of research. Participation can be anything from simply responding to the survey in your own language or helping to translate, organize, or analyze the data.2 Comments »
Since then, the OITP at ALA (Office for Information Technology Policy of the American Library Association) has developed and published two new tools: the Fair Use Evaluator and the Exceptions for Instructors eTool. From the announcement,
“The Fair Use Evaluator is an online tool that can help users understand how to determine if the use of a protected work is a “fair use.” It helps users collect, organize, and document the information they may need to support a fair use claim, and provides a time-stamped PDF document for the users’ records.”
“The Exceptions for Instructors eTool guides users through the educational exceptions in U.S. copyright law, helping to explain and clarify rights and responsibilities for the performance and display of copyrighted content in traditional, distance and blended educational models.”
In addition to these two new tools, check out the existing Section 108 Spinner, which “help[s] you determine whether or not a particular reproduction is covered by [Section 108] exemption” that “allows libraries & archives, under certain circumstances, to make reproductions of copyrighted materials without the permission of the copyright holder.”
All three tools are licensed CC BY NC-SA.Comments Off