Within education, uncertainty and misunderstanding of copyright and fair use can lead to less than optimal choices of educational “inserts”, which includes a full range of resources and material from third-party sources that educators may wish to incorporate into OER. The Code is meant to provide guidance within this environment, not with strict lists of specific guidelines for fair use as it relates to OED inserts, e.g., specific percentages or word counts, but rather as an “analytical framework” for its users. When educators use this framework, they may be less constrained from strictly using materials from commercial publishers, in turn creating more impactful resources, in a variety of formats, for their students.

Announcement: Launch of the Code of Best Practices in Fair Use for Open Educational Resources

Read the Code

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What Is It?

The CASE Act creates a “Copyright Claims Board” (the Board) within the U.S. Copyright Office which can hand out awards for copyright infringement for those seeking damages of $30,000 or less.  Of consternation to its critics, decisions by the Board are binding unless a party proactively opts-out of the claims process. Opt-ing out isn’t a one time thing, either. A person must do this every time a claim is filed against them. While the opt out system has not yet been put in place (the Copyright Office has until the end of 2021 to create it), once in place, if you receive a notice of infringement and do nothing, the assumption will be made that you have “opted-in” to the process. The Board’s decision will be binding and you will have limited recourse to appeal or overturn it. On the other hand, claims of infringement handled in court have multiple levels of appeal. Critics of the CASE Act fear that the law does not protect individuals from copyright trolls and “sophisticated actors”, such as large companies, especially if a person does not understand the opt-out process. Large copyright owners may also target those using materials under fair use.

You can find out more about the history of the CASE Act here.

Additional Resources

US copyright law comes under scrutiny as new legislation makes its way before Congress

The CASE Act Is Just the Beginning of the Next Copyright Battle

Submitted public comments regarding regulations implementing to establish the new Copyright Claims Board (CCB) as a part of the Copyright Alternative in Small-Claims Enforcement Act

The post New Legislation: The CASE Act appeared first on Stanford Copyright and Fair Use Center.

But an important note to remember amidst the rejoicing:  the length of copyright has not shrunk back. We’ve just finally waited it out long enough for those 1923 works to join their brethren in the public domain. The works published in 1922 joined the public domain back twenty years ago. Hm.

Back at the party, the Internet Archive celebrated the Public Domain Day in style last Friday, with flappers from the 1920s, treats made from recipes in the 1920s and an impressive list of speakers (below). Cory Doctorow gave a rousing closing keynote, in which he spoke about grifters, who use paperwork to somehow shift your stuff to the grifter’s stuff, giving many examples in the world of intellectual property.

We tweeted the Larry Lessig portion of the event and he was joined many other speakers captured in the livestream:

• Lawrence Lessig – Harvard Law Professor
• Cory Doctorow – Author & Co-editor, Boing-Boing
• Pam Samuelson – Berkeley Law Professor
• Paul Soulellis – Artist & Rhode Island School of Design Professor
• Jamie Boyle – Duke Law Professor & Founder, Center for the Study of the Public Domain
• Brewster Kahle – Founder & Digital Librarian, Internet Archive
• Corynne McSherry – Legal Director, Electronic Frontier Foundation
• Ryan Merkley – CEO, Creative Commons
• Jennifer Urban – Berkeley Law Professor
• Joseph C. Gratz – Partner, Durie Tangri
• Jane Park – Director of Product and Research, Creative Commons
• Cheyenne Hohman – Director, Free Music Archive
• Ben Vershbow – Director, Community Programs, Wikimedia
• Jennifer Jenkins – Director, Center for the Study of the Public Domain
• Rick Prelinger – Founder, Prelinger Archives
• Amy Mason – LightHouse for the Blind and Visually Impaired
• Paul Keller – Communia Association
• Michael Wolfe – Duke Lecturing Fellow, Center for the Study of the Public Domain
• Daniel Schacht – Co-chair of the Intellectual Property Practice Group, Donahue Fitzgerald LLP

The post Celebrating the unfreezing of the public domain appeared first on Stanford Copyright and Fair Use Center.

The court looked to the Cariou v Prince decision, but complained that its approach to appropriation art looked only at whether a work is “transformative” and doesn’t fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106(2).  This court analyzes the market effect, looking to see if the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).

The photographer in this case did not claim that the t-shirt was a disruption to his own plans to license the photo for t-shirts or tank tops. He did not argue that demand for the original work was reduced.

And as for Fair Use factor three, the amount and substantiality of the portion used … the court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”  The original background is gone, its colors and shading are gone, the expression in the eyes can no longer be read, and the effect of the lighting is “almost extinguished.”  “What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

Kienitz v Sconnie Nation

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