Questions Around Digital Fair UseUCSC COLASC, 2/26/13

Katie FortneyCopyright Management Officer, CDL

katie.fortney@ucop.edu

Fair Use: 4 Factors

• The PURPOSE of your use• The NATURE of the work you’re using• The AMOUNT or substantiality of the work

you’re using, as part of its whole• The effect on reasonable MARKETS for the work

It’s tricky if you don’t have practice and context, but it isn’t brain surgery.

Today

• Just a few trees in the fair use forest– Incorporated images and

the proposed Open Access Policy

– UCLA and streaming video

Images in Scholarly Articles

How do they get there?• Fair use• Permission• (…or maybe they’re not protected by

copyright, or were created by the author)

IMG_7398.JPG by danielhedrick, CC-BY-NChttp://www.flickr.com/photos/pdxsurreal/242001382/

Images Incorporated as Fair Use

Fair use in article as published

Fair use in eScholarship

Images Incorporated by Permission

Read the image

agreement

OA archiving does not

violate the agreement

Treat like any other article –

post it!

OA archiving would violate

the agreement

Get a waiver*

Deposit only for dark

archiving in Merritt

*What if the author wants to put the article in eScholarship?

Instead of getting a waiver, he or she could• Ask for a different agreement for the

incorporated image• Find a different image• Deposit a version of the article without the image– In any case, the policy’s license is only going to apply

to what the author has written, not the images.

UCLA vs. AIME

UCLA had public performance rights and some very specific license language.Generally-• Streaming an entire film

as fair use: ambiguous• Anti-circumvention

provisions: bypassing DVD encryption = bad

First snowflake this season!, by PictureWendy, CC-BY-NChttp://www.flickr.com/photos/picturewendy/5231649239/

Questions?

Question mark sign, by Colin K, CC-BYhttp://www.flickr.com/photos/colinkinner/2200500024/

In the background…

• Takedown policies• Sovereign Immunity• 504(c)(2)– “an employee or agent of a nonprofit educational

institution”– “believed and had reasonable grounds for

believing … was a fair use”