Copyright Decisionmaking Flowchart – Some Critical Reflections

The beginnings of the detailed flowchart on using other peoples materials are seriously excellent. I can see where the flowchart’s creators were going with this – trying to make life easier for teachers and students – and in this section, they have done so magnificently. I’d change some wording here and there if I were creating this from scratch, but I’d share these parts with others, if they were available separately.

IFFY PARTS

In other parts of the chart, I have some disagreements with the framing of the issues, but that’s more a philosophical issue than a legal one. There’s also some minor misstatements of law in these parts.

Original: “The spirit of the copyright clause in the U.S. constitution is to encourage creativity, innovation, and the spread of knowledge. It is purposed to inspire individuals to contribute what they create to society. Copyright protection ensures that consumers will not pass off the work of others as their own, or reproduce, change, distribute, perform/display publicly without permission of the creator.”

Comments

• Fully and completely endorse sentences 1 and 2.
• Copyright law has almost nothing to do with assuring that people “will not pass off the work of others as their own” – only the Visual Artists Rights Act addresses attribution requirements under U.S. law. Plagiarism is not a separately articulable legal harm under U.S. law. “Passing off” may rise to the status of a legal violation if it’s copying that exceeds fair use, or if the lies rise to the level of fraud.
• Copyright protection also does not ensure that “consumers” or anyone else won’t use the work without permission – copyright law explicitly allows many different uses without permission or payment, including under fair use – but also in classrooms, small businesses, or even recording and selling a cover song!

Original: “We suggest you create, don’t copy. The creator always holds the first copyright (until it is legally transferred) and may use the work in any way.”

Comments:

• It’s true that creators own their works from creation until they transfer them away – most of the time. A chart like this doesn’t really need to deal with employer-owned works, works for hire, etc.
• “Create, don’t copy” is a pretty silly statement. Some of our most lauded creators copied like heck. Copying IS PART OF THE NATURAL PROCESSES OF CREATION. The idea that copying and creation are different things is not a great dichotomy for teachers to be spreading.

Original: “When this is not possible, use works from the public domain (copyright expired or given away) or those registered with more flexible licensing agreements through sites such as Creative Commons. Even here, source citation is always essential.”

Comments:

• Definitely do use public domain or CC works whenever you want to avoid dealing with questions of copyright and use.
• This isn’t a full definition of the public domain, but whatevs, its sufficient.
• “registered with more flexible licensing agreements through sites such as Creative Commons” is a REALLY WEIRD way of saying “whose creators have made available under a Creative Commons license.”
  Registration has nothing to do with copyright ownership (as is correctly noted elsewhere in the graphic!) Registration also has nothing to do with Creative Commons licenses, and you do not have to go through any site (including the CC’s own) to grant a Creative Commons license. I meet a lot of people who are confused about how to grant a CC license, and think you have to do something in a central licensing registry or something, so I’m pretty sure the phrasing in this part of the graphic will cause additional confusion.
• Source citation is legally required under Creative Commons licenses.
  Source citation is not required by copyright law, and in any case public domain resources are no longer covered by copyright law, so source citation is not a legal issue at all with public domain materials.
  That said, yes, for proper educational use citation is essential – it’s just that the graphic mixes it up with legal requirements persistently.

Original: “If nothing besides the original work is sufficient, receive permission from the copyright holder.”

Comments:

• No. If nothing besides the original work is sufficient, and you want absolute certainty about the legality of your use, TRY getting permission.
  The likelihood that a rightsholder will respond to an individual teacher or student (especially where the rightsholder is not an independent creator) is really low.

Original: “When none of these are viable possibilities, educators (along with journalists, commentators, critics, scholars and researchers) have the extra option of employing Fair Use rights.”

Comments:

• EVERYONE has the option of employing fair use.
• Fair use is available even when you -haven’t- looked for public domain or Creative Commons materials.
• You do not have to ask permission before considering fair use. (Though asking permission and being denied because they don’t like your point of view can strengthen a fair use claim…)

Incorrect Part Smallish

Original: “Public Domain consists of works that are publicly available; works that are unavailable for private ownership or are available for public use.”

Comments: This isn’t so much incorrect as confusingly vague. The public domain consists of works to which copyright never applied, works in which the copyright has ended, and works that the creator has dedicated to the public domain (which is legally quite difficult to do.)
Using “publicly available” as a shorthand for public domain is a -particularly- confusing phrasing – lots of people think that anything they can find through an online image search is “public domain” because it is “publicly available.”

Original: “Fair Use is not law, but it is a legally defensible position based on balancing four factors: nature, amount, purpose, and effect. Determining Fair Use is always a case by case, critical reasoning process.”

Comments: FAIR USE IS MOST CERTAINLY LAW – which the creators know, because they immediately subsequently make reference to details of the Copyright Act. (17 U.S.C. § 107) This may be an attempt to paraphrase that bugaboo of fair-use-questioners: “Fair use is only a defense to copyright infringement.” There are quite a few detailed semantic arguments buried in that topic, but I kind of go with the fact that the law says “the fair use of a copyrighted work…is not an infringement of copyright”, as well as courts increasing tendencies to find fair use in declaratory judgments, during dismissal consideration, and at summary judgment, as a pretty solid footing of “not just a defense”.

INCORRECT PART HUGE

In my experience, teachers (and many librarians) often, understandably, desire certainty about the law. Unfortunately, fair use is a part of law that simply does not contain certainty. Clear black-and-white statements about fair use law, however much we may want them, are almost never correct explanations of the law.

The entire section of the flowchart detailing fair use contains multiple misstatements of the law (as well as a couple of other confusing inclusions.)

1. “When in doubt, ask permission or don’t use the work.”
   This is, again, not a great dichotomy to establish as “preferred” – many, many creators do not respond to requests for permission. Others will happily tell users how much it would cost to do X, when X is clearly allowed under fair use or other copyright exceptions.
   As a workshop participant once put it, “Do you ask your barber whether you need a haircut?”
2. Quite correct! Fair use is always case by case, and you can use your best judgment to make the call in your specific case.
3. “You can make photocopies for your students to use in class, but cannot make a pdf file, upload and share on your classroom blog for students to download.”
   “You can use a curriculum handout or student activity (created by someone else) in your classroom, but you cannot share it on your classroom website.”
   I have no idea where these statements are coming from. There’s a nearby reference to “the Fair Use Guidelines”, which may mean the 1976 Classroom Copying Guidelines, but even if you were to give those the force of law (they are simply one non-legislative group’s opinion on a reasonable base interpretation of fair use) I really can’t see how these two statements are generated from the Classroom Copying Guidelines.
   You can certainly sometimes share materials online with your students.
   You can certainly sometimes share materials in class with your students.
   Sometimes, putting copies of something online for your students is not fair use.
   Sometimes, making paper copies of something and handing it out in class is not fair use!
4. “Consider FUTURE use of the work. (Might you want to share or distribute your work in the future?)”
   This is actually a legit thing to consider as you decide to use other folks’ materials. Sometimes, fair use might cover copying for personal use, but would be more questionable for widespread distribution. However, it’s also worth considering elsewhere – do the Creative Commons-licensed materials you want to use allow for the kinds of downstream uses you want to make?
   Fair use is not defeated just because you want to distribute something online.
5. “Use portion of work that contributes to educational goals & purposes” and “in some cases, this will mean using a clip or excerpt; in other cases, the whole work is needed.”
   Quite correct! Both of these things will contribute to a stronger fair use claim.
   However, the implication that these considerations are -only- relevant to users who are engaging in uses that are both educational and noncommercial is a bit problematic.
6. “Whenever possible, educators should provide proper attribution and model citation practices that are appropriate to the form and context of the use.”
   As a standalone statement, I love this – especially the “appropriate to the form and context of the use” part – appropriate credit is very context sensitive.
   However, the chart implies that this has something to do with whether a use is fair or not, which it does not. (Which the chart sort of acknowledges elsewhere – see point 7.)
7. “Attribute with name & info to help people find original source.” “Attribution in itself does not convert infringement into Fair Use.”
   I’m glad they included the second sentence somewhere in the chart. It’s the only acknowledgement that attribution is actually almost entirely orthogonal to fair use.
8. “Your work needs to be transformative.” “Add new meaning to make it original”; “Ex. Criticism, news, commentary, or parody”, “Rework and use in different way”
   This is an exceedingly muddy representation of transformative use. (Especially in that it seems to suggest that the further-left statements are about transformative use and the further-right ones are about… some other mysterious thing that is not transformative use?
9. “Fair Use DOES NOT apply if the goal is to establish a mood, convey an emotional tone, or exploit popular appeal. Ex. use of a song as a background music to a video.”
   This is flat-out wrong. Use of a song as background music to a video can be an exemplar of transformative use. (Note: that link is to an advocacy organization; however, the Library of Congress cited some of those videos, and some similar ones, as exemplary fair uses when it approved the DMCA exemption for noncommercial remix videos.) (Secondary note: some of those videos are powerfully disturbing. Well worth watching, though.)
   It’s true that using a song “as decoration” rather than because it is integral to the critical point you are making in a use is much less likely to be fair use, but it’s not true that that means it is conclusively not fair use.
10. “The majority must be your OWN work.”
    Not so. The question of amount, with respect to fair use, has only to do with the proportion of the original work that is being used. For example, this critical remix video has been repeatedly challenged as a fair use by various rightsholders, and those challenges have been repeatedly revoked when the creators invoke fair use.

Every single one of the “You can’t claim Fair Use” statements is incorrect.

1. Chart paraphrase: You’re not going to distribute online/outside the classroom, but you’re not engaging in both noncommercial and educational use, therefore you can’t claim fair use.
   Reality: Fair use is available to commercial users, and to non-educational users. See, for example, Campbell v. Acuff-Rose.
2. Chart paraphrase: You’re not going to distribute online/outside the classroom, and you’re a noncommercial and educational user, but you’re using a portion that doesn’t contribute to your educational goals and purposes, therefore you can’t claim fair use.
   Reality: No single fair use factor is determinative, so you can’t conclude “not fair use” just because their “amount” is big. That said, using more than is reasonable for your purpose is a good way to weaken your fair use argument.
3. Chart paraphrase: You’re are distributing online/outside the classroom, but you’re not engaging in both noncommercial and educational use, therefore you can’t claim fair use.
   Reality: WRONG. Fair use is available to commercial users, and to non-educational users. See, for example, Campbell v. Acuff-Rose.
   Note also, that distribution online does not somehow magically weaken a fair use case that would otherwise be okay offline. Online distribution can contribute to causing market harm, which may weaken a fair use argument, but for example, when there is no market to be harmed, the mode of distribution is likely to be irrelevant.
4. Chart paraphrase: You’re distributing online/outside the classroom, and your use is noncommercial and educational, but you haven’t “add[ed] new meaning to make [your use] original”, therefore you can’t claim fair use.
   Reality: This is, as I said above, a very muddy way of explaining transformative use. (I’m not sure there are un-muddy ways to do so, so the flowchart creators have my sympathies…)
   Transformative use can arise when the user is adding new meaning to a copied work. That’s true. But you don’t have to be an educational noncommercial user, nor do you have to be distributing online/outside the classroom, to claim transformative use.
5. Chart paraphrase: You’re distributing online/outside the classroom, and your use is
   noncommercial and educational, but you haven’t “rework[ed] and use[d] in a different way”, therefore you can’t claim fair use.
   Reality: This phrasing seems to suggest a different angle on transformative use, and again, is correct that reworking a use and using something in a different way can strengthen a fair use argument as transformative use. But again, you don’t have to be an educational noncommercial user, nor do you
   have to be distributing online/outside the classroom, to claim
   transformative use.
6. Chart paraphrase: You’re distributing online/outside the classroom, and your use is
   noncommercial and educational, but you’re using more than a small portion of the original work, therefore you can’t claim fair use.
   Reality: Fair use sometimes encompasses use of the whole work, especially when that amount is necessary to accomplish the kinds of purposes that are looked on favorably in fair use. Which the flowchart acknowledges in the other column of fair use analysis (i.e., point 6, above), so it’s particularly maddening to have it suggest that the fact that work is being used online suddenly torpedoes all the subtlety of how the amount relates to the user’s purpose.

TL;DR – a picture

Final note 1: all my edited/commented derivative images, to the extent they have enough additional authorship to constitute separate copyrights, are licensed under a Creative Commons BY-SA license.

Final note 2: Why did teachers teaching in Brazil spend this much time on a flowchart for US law?