Copyright, Fair Use, and Mandala

10/31/17

Overview

• In the U.S., content including books, journal articles, photos, audio and video are can be (and for most things published in the last 50 yours or so, are) protected by copyright restrictions.
• This document attempts to orient you about:
  • The nature of copyright
  • The right of "fair use" designed for non-profit research, teaching, and scholarship
  • Materials in the "public domain"
  • How to use Mandala in light of copyright law
• It does not provide legal advice (please see disclaimer below)

Copyright: Subject Matter, Rights, and Limitations

• Copyright regulates certain uses of works of creative expression, including literary works, audio-visual works, images, and sound recordings.

• The law gives a copyright-holder the exclusive right to do or to authorize the following activities:

  • Reproduction

  • Distribution

  • Public performance and display

  • Adaptation into derivative works (including translations, sequels, annotated editions, adaptations from one form to another)

• These exclusive rights last for "limited times"—after a work's copyright term expires, it enters the public domain, and anyone is free to use the work in any way they like
• During the term of copyright, a work may be used without permission if the use is covered by one of the several limitations and exceptions to copyright, the most important of which is fair use.

Fair Use

• U.S. copyright law provides for "fair use" of copyrighted materials without payment or permission in certain circumstances.
  
  • Fair use is a flexible doctrine based on the weighing of four factors - the purpose of the use, the nature of the work used, the amount used, and the effect of the use on the market for the work.
  • Non-profit research, teaching, and scholarship are among the kinds of uses favored by fair use, but not every such use is fair.
    
  • Rather, each use has to be evaluated on its own merits to determine whether, in light of the four factors, permitting unlicensed use serves the ultimate purpose of copyright: the promotion of progress in culture and science.
    
• In recent cases, courts have made clear that use for a new, "transformative" purpose will be strongly favored under each of the four factors.  
  • In the words of Judge Pierre N. Leval, to be transformative:
    • "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely “supersede the objects”' of the original. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings— this

      is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." - Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).

    • Transformative uses are strongly favored, as long as the amount used is appropriate to the new purpose.

    • Courts typically find that a transformative use is not a threat to the original work's market because the use is not "substitutional"—the user is not presenting the work as a substitute for the original work, but rather is using the work for her own purpose.
  • Given this turn to transformative use, which emphasizes appropriate amounts in light of purpose rather than arbitrary maximum amounts, old fair use guidelines that emphasized counting words or pre-determined percentages of a given work are no longer useful. Indeed, courts have specifically rejected the 1976 Classroom Guidelines and similar documents as limits on educational use.
• Fair use is an important right that serves the public interest in spurring creative and productive new uses of existing works. The Supreme Court has said that fair use is a "First Amendment safety valve" because it ensures copyright law does not stifle important expressive and educational activity. Fair use is not excused infringement or minimal use; it is socially beneficial and encouraged by the law!
• In recent years, many practice communities have come together to describe the core, recurring contexts where they believe fair use applies to their activities. Where they apply, these best practices are the best source of guidance about what uses are considered normal, fair, and legitimate.
  • Links to the Best Practices most likely to be useful to Mandala users are included below, under "Mandala and Copyright."

"Public Domain" Materials

• Generally, work published prior to 1923 is in the "public domain" and can be reproduced and disseminated in any form.
• A thorough summary hosted by the University of North Carolina can help you assess whether a given work is in the public domain: http://www.unc.edu/~unclng/public-d.htm

Copyright Request and Release Form

The following templates may be useful if you need to seek copyright permission or if your project requires a release form.

• Copyright Request
• Release Form (Oral Histories, Interviews, etc.)

Mandala

• Supports your work within copyright law and "fair use"
• Allows you as editorial user to restrict each asset or collection as needed.  You may choose among the following restriction classifications:
  
  • Public
  • Private
  • Group 
  • Class

Disclaimer

• This advice orients you and better prepares you for a consultation with your attorney and/or the University's General Counsel
• This document does not substitute for legal advice
• This document focuses on U.S. copyright law and practice 
• International copyright varies widely from U.S. law and practice
• Copyright law and it's interpretation are continually changing, particularly in the web environment

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