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Conversation #21: Kenneth Crews on Copyright

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Kenneth Crews

A court ruled last year that at least within limits it was fair use to scan pages from a book and to make those pages available to students in connection with teaching at a university. Now, you're thinking to yourself: But we do that here all the time. And the answer is: I know, it's happening all over the country — and somebody finally got sued. The case is up on appeal.

A conversation with Kenneth Crews of Columbia University, on teaching, learning and copyright.

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Transcript

Everson: Hello, and welcome to the program. This is Bart Everson filling in for Dr. Ray Lang who will be back next episode. It is my pleasure and my privilege to be speaking with Dr. Kenneth Cruise. Dr. Cruise joined Columbia University in January of 2008 as founding director of the copyright advisor and services concurrently on the faculty at Columbia Law school. For more than 20 years, Dr. Cruise has focused most of his research on policy making and copyright issues and has been a leader in providing a better understanding of the relationship of copyright law for the needs of higher education. So thank you for joining us Dr. Cruise.

Cruise: My pleasure.

Everson: This really a topic that has come up again and again in my work as a Media Artist for the Center for the Advancement of Teaching at Xavier. And again and again we get the questions about copyright fair use and I tell people all the time, I just don’t know the answers to some of these things. And I think a lot of people and professors have heard of the term “fair use” and it would be hard to define it. And so what is a good working definition of “fair use” and what do college professors need to know about it? Basically, how can we ensure that our use of other people’s material is fair?

Cruise: Well those are great questions and they’re complicated questions. I think I can help guide your listeners so that they can better understand  the possible answers and the many different answers they are most likely to get. But let me put it in context. You start the conversation with “fair use”. Fair use is an exception to the rights of copyright owner. It is an exception that allows somebody who is not the owner the ability to make certain uses under certain circumstances. And people come back to that because functionally and fundamentally, it is an exception to the rights of copyright owners. So now let's talk about copyright and copyright owners. What that copyright law does is that it grants legal protection to original works that are creative and fixed on some tangible media, meaning they’re written on paper or saved on a hard drive or spray painted on the wall. And that means one of the reasons why we have to pay attention to copyright is because there are copyrights all around us. I’m sitting in my office right now and there are music CDs and websites on my computer and programs on the whiteboard. There are posters taped up on the wall. All of those things are protected by copyright. Because copyright protects work that have a little bit of originality and that are fixed. Which means we have copyrights all around us and that we are copyright owners. We are all always creating copyright works that get this instant legal protection. We make graphs, we send emails, we scribble notes, we copyright everywhere. And so that means not only are we responsible for legal works of our own but that we are constantly using. We use them when we read them, when we share them in class, when we put the poster on the wall, we use them in many different ways. Constantly thinking about fair use when we are using these works in an innovative manner. So one way to answer a question about why we should care is because we cannot avoid it. Because copyright is all around us. And if we pay attention, we can make that interaction with copyright a more pleasant and constructive relationship. Another reason we should care is because of academics. As I said before, we are constantly creating new works. So the way we pay attention to the copyrights we create and own, affects the way we make those works more useful to our colleagues around the world. And secondly, we should care because the way we apply those works makes a profound difference in the way we might use works and share works teaching in our conference talks and in our research.

Everson: Alright. So, I’m still wondering what is fair use. But I was kind of surprised how even a cash register receipt can be considered copyright.

Cruise: Yeah and that may be the most strange example. If I look at this receipt, you can’t claim copyright for facts. The fact that someone bought something and the fact that it cost a certain amount of money, those are facts. But if the cash register receipt has something like “Thanks for visiting our shop” or “take a look at our website here” or “give us an evaluation” suddenly there’s this original text being added to it that can take on instant copyright protection. That’s another big story that once you create that work that has to be fixed, you don’t even have to know about copyright, it’s copyrighted. Even if you don’t want it you get it anyway. That’s the way the law works.

Everson: So it’s a little different than filing  patent or registering a service mark or something like that?

Cruise: Radically different. Very different area of the law, functions completely different. Should we talk about fair use?

Everson: Yeah! What fair use is an exception to what you are describing and when does that come up?

Cruise: Yeah so if I am the copyright owner to anything that a raddled on, a have a bundle of rights because certain legal rights are given to the copyright owner under the structure of the law. Rights to every work making new works on it. Public performance and display. So when the school theater wants to put on a performance of a copyrighted play, that is a public performance. And so these are all the things that belong to the copyright owner. And all of these rights are subject to a long list of exceptions laid out in the statues. And some of those exceptions are very neat and they work beautifully. In the college and university setting, we use them on a daily basis. In the non-profit, face-to-face setting, we can display a work. So if I want to at out that play or show that movie in my classroom as part of my teaching, there is a statue that says I can do that. And so I feel very secure in showing that movie or reciting that poetry in the classroom. But when I take that same performance and move it to a more public setting, now we are going to sell tickets to see the play or show the movie on a Friday night to entertain students, now I’ve stepped out of that statue and now I need to think about something else. Permission, or is it fair use? Those aren’t the best examples of fair use but you have to think about something else. But fair use is one of those exceptions. And the fair use statute is “ Fair use is for purposes such as…” and there’s a list of things such as teaching, research, and scholarship. But then it goes on to say “In determining whether something is fair use, the factors to be considered  are…” and then it list four factors. And to paraphrase, purpose, nature, effect, and amount. What’s my purpose. Non-profit education has given a bit of a head start on that as opposed to commercial uses. The second factor  what’s the nature of the work. So we are supposed to look at the works. In some works, the courts have been more flexible about the works, in other’s not so much. And they are more cautious about the creative works like music and poetry and so on. What is the amount that I am using? And this is measured by asking yourself how much am I copying Am I copying a lot of a little? And then the fourth factor is effect. What is the effect of my use on the market of this work? We actually had a course case that I was somewhat involved where that at least within limits, it was fair use to scan pages of a book and make it available to students in connection to teaching at the university. Now you’re probably thinking to yourself well we do that all the time. And I know, it’s happening all over the country. And one day someone got tired and they got sued on this issue. And the case is up on appeal. Taking it back to the four factors, the courts and the university to see what those factors mean in this particular context. They don’t mean you can do anything but they do mean you can do something.. And people debate these issues.

Everson: Well I can imagine. And so I have professors who come into my office sometimes and say this what I am planning to do and I never really have an answer for them. It sounds to me like you’re saying that there is no one size fits all answer anyway. I was quite well-versed. I would have to take everything on a case by case basis and consider everything that they are talking about.

Cruise: That is true. And if we were to take ten universities in your state and bring the same scenario to someone who is responsible for making that decision, we would probably get ten different answers. Someone may say yes but only if you do it this way or that way. Someone else may be more cautious and say no we can’t touch it at all. Someone else may have a different answer. Because there are a lot of different answers lurking behind those questions. Maybe the materials you are using we can use for other reasons. Maybe they have a creative commons licenses on it or maybe they have permission. If you’re talking about photographs of New Orleans, maybe we can go to a different source where they are available online that we can download, and use, or maybe what you really want are just pictures of New Orleans and they don’t have to be any particular picture. Well then we’ll go find some from 1890 from the domain when the copyright has expired. Early 20th century stuff and stuff from the 1990’s are there for us to freely use. Think about our alternatives as of now and that’s very important.

Everson: Well let me see if I grasp what you are saying and talk about a couple of scenarios that have come up here at Xavier. May resonate with other faculty at other institutions as well. I know one professor who would like to use just a few brief clips from some famous Hollywood material, obviously copyrighted…

Cruise: Okay let’s assume that. Let’s assume they are copyrighted. And recent enough to be copyrighted.

Everson: Yeah! Fairly recent stuff that had been copyrighted. I think is pretty aggressively protected. And he would use just a couple of clips in his teaching just to make a point. Just to give students a reference point. And I assume that that would be a legitimate free use exception because he is using such a small portion of the work and is not having an effect presumably on the value of the work as a whole. It's not like he is showing the movie and now people have seen it. He is only showing a small portion of it. Does this sound reasonable to you?

Cruise: I think you’re on the right track. I think that most people in the academic institution would look at it that way. And certainly the reason of application of the four factors would lead you to do it like that. And then you would take it a few steps further. You would really be asking can I take this 4 hour movie of the ten commandments from the 1950’s and clip these scenes, in a more typical setting it would be longer, it would be more of a couple of second from every scene so about 15 minutes from the who movie, and to make it easier to use, I want to put those clips onto a DVD and carry them into the classroom. So now we are talking about copying those clips. And a fair use exercise would go like this: the first factor is probably strongly in my favor because it is a non-profit education and we would feel really good about that. We would say as a faculty member, don’t post this on your website for everyone to see. You are using this for your classroom and for your teaching. Or even on an online server, you could use it as fair use because then the students can click and watch the scenes at home which is fine as long as it is in a secure environment. And the nature of the word “highly creative” but you are using it for instructional and factual purposes. You are using it for the fact that this is how the movie industry shows this episode even if the movie isn’t factual.

Everson: Right. The movie may not be factual but the movie itself is a fact.

Cruise: Right. You are using it for that fact as opposed to using it for the entertainment quality. And then the amount that you are using in this example is very brief so we’ll probably feel more comfortable about that. At some point we will get to be uncomfortable. And then the effect on the market. You can help the market as well make your clips that the faculty member owns, have a few more copies at the reserve desk for students to come and see the whole thing. And what I also do is, I take the opportunity to talk to the faculty member about the alternatives. In other words, somebody is uncomfortable with something we just said, and there is always someone who is. One of your alternatives is as said, you can perform the movie in the live classroom. At that point, the faculty member can take that DVD disk, we aren’t talking about any copies here, the original disk out of the box, walk into the classroom, put it in a machine, and show the whole movie or jump around to the scene that the faculty wants. All of that is perfectly legal. We’re not talking about any copies, and it is classroom use.

Everson: So I know you mentioned the things about copies a few time, and publishing something online or in some other kind of formate. So kind of changing the scenario a little bit, if we were to extend this question a little bit. If we took the same professor who videotaped himself giving the lecture with the movie clips in the middle of it and put that lecture online for the world to see, is that still fair?

Cruise: Right and this is an example of different people giving you different answers. And this is the type of conversations I find myself involved in comparing notes with colleagues. The general sentiment is that camera in the classroom that is capturing the lecture the professor is giving and capturing the professor with the screen in the background, that includes a few minutes of those clips. Even if you share that out with the world, at least most people that I talk to generally feel comfortable with that use. And part of the reason why is that you’re not cutting to a high quality, high resolution clip that anyone can realistically do anything with. You are simply showing the videotaping of the video being displayed up on the screen in the classroom. In other words, it is a good enough quality for someone to be sitting on the computer and knowing what is going on in that room, but not good enough for anybody to do anything else with that clip. And in this case, context clearly using this clip in an educational setting with the instructor standing right there commenting on it before and after the few minutes of letting the clip roll, that also increases the likelihood that it is fair use.

Everson: Well this is fascinating stuff! I should note that some time has gone by here and before you know it, we’ll be at our limit. If I can just shift gears here for a moment about something that comes up a lot. I work a lot with college professors that I encourage to be as creative as possible and to really develop some materials that are really unique and creative and I wonder who owns those? Are they owned by the professor or are the owned by the university? What about a book while the professor may write while being employed at the university? And what about if I get involved. I’m not a professor or teacher. I’m a staff member of the university. If I assist a college professor in creating these materials, do things change somehow? Some of the terms I’ve heard with regards to this is that certain kinds of work are work for higher and that has implications for copyright. And I have also heard of teacher exemption. Are these still current terms or am I still trapped in the 20th century?

Cruise: No. These are current terms. Work for higher is definitely law. And the basic idea is that if you are an employee, and you created that work as part of your scope of employment, then the work belongs to the employer. So in all kinds of context people debate who is really an employee as opposed to an independent contractor. What’s in the scope of my duties and what’s not. This is an endless debate that gets a lot of faculty members very emotional. And the debates can be very hot. Let me tell you a bottom line that confuses a lot of these concerns. Every situation that you have described in your question is real. It is happening constantly at multiple universities. Change the question, what answer do you want? Because one of the beauties of this part of copyright law is that the law might give an answer. And I can tell you right now,  you’re not going to be happy with that answer no matter what that answer is. No matter if it’s mine or yours. Because all the law does is give a all or nothing claim to the copyright. Either it’s mine or it’s you're. I don't know. Let’s take it in front of a judge. And you’re not going to be happy. Instead what we need are more thoughtful policies and agreements. And so what I urge to you and to people all around the country is take that set of questions that you offered, and begin discussing them at your campus to think beyond the parameters of your circumstances, under what circumstances should the rights be with me or you or someone else. Under what circumstances should we be sharing the rights and we see this a lot in online education where the instructor has rights to the content that he or she contributed but the institution has rights to video production and so on. So we can verse this out and share the rights but we can only do that if we take the initiative to do it. If we don’t do it, you’re throwing yourself at the mercy of the law and you will be unhappy. So get a policy, and get a agreement in place.

Everson: Exactly. So get a policy. I thought that’s what you were driving at. And indeed we need to develop a policy if we don’t want these questions hanging out there unresolved. Well do we have time for one last thing?

Cruise: Oh sure!

Everson: You mentioned a while back about creative commons. That is something that has come up a lot and is something I have always paid attention to. So I always wanted to know has it really been tested in the courts? Has is been advertised as an alternative to copyrighting? I wonder is this just some kind of flaky, weird internet phenomenon that doesn't really have any real application or has it been put to test?

Cruise: It has not been put to the test in the courts. But it is also not flaky or weird. So it’s real. It functions well enough. I can look at it and say I can look at the what if’s of some possible problems. But the problems don't deter me from using it. So what creative commons is is that it is a way of saying, “I created that work, I own the copyright in it, but I hereby declare to the world that you may use it on these terms”. And the people who developed it has synthesized those options into terms that are very neat.  For example,  if you were to go to my website which is copyright.columbia.edu, you’ll see a bunch of creative commons statements put at the bottom. And sometimes you’ll see on my site or other sites, creative commons license non commercial. Or my typically we start with attribution because we want credit. If you are going to use, put my name on it. And sometimes in the academic world, we might limit the use to non-commercial. And then sometimes we don't want people messing with the work or making any changes so we might say “no derivatives”. And so we get to decide when and how to put that work out there and on what terms. Are you going to put it out under terms where you are going to assert control, sometimes. Are you going to just put it out there and let it go with a non-commerce license, sometimes you are. So that brings me back to one of my opening points in this conversation, is that we need to pay attention to copyright because we all are copyright owners. We get to decide if we pay attention to copyright, how we can help others use our work. And creative commons helps to make our work more useful in the marketplace of ideas. The other side to creative commons, when someone comes to me and says, I want to use these picture of New Orleans in my powerpoint presentation and I say oh we issues of ownership or permission, what I say is, can we just skip all of that and go to flicker.com and multiple sources where we find creative commons licenses, find pictures of new orleans, use them, give credit, and you just skipped all of those headaches of fair use.

Everson: Alright, well thank you so much  for talking with us on these issues today. And obviously we left a lot unsaid. We can go on talking about this all day and still not exhaust everything.

Cruise: It’s my pleasure and you know what? We did. We recorded this conversation. You said your original words. I said my original words. And now we have created a new copyright protected work. So let's think about it, at least from my words, copyright 2013 by me but I am going to go ahead and creative commons attribution only blog and put a license on my words which means I have given the world permission to use my words. But just give me credit back. How does that sound?

Everson: That sounds great. I think we’ll publish the whole podcast under a creative commons attribution license and let people reuse it as long as they give us credit.

Cruise: How much fun is that?

Everson: It’s a lot of fun. Well thank you. And again this is Teaching, Learning, and Everything Else.                      

                                                                                                                  

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