Intellectual Property / Open Access / Fair Use

Why does intellectual property, open access, and fair use matter for practitioners of digital studies, media studies, and digital humanities? You and your students will likely be entering an environment in which you will be using, remixing, and editing online content. You will also be creating content that will enter an online environment that presumes an ethos of open access to information and social sharing. How we value the inputs and products of digital research and scholarship in the classroom will influence validation of digital research and scholarship more broadly. Attending to the intellectual property implications of digital scholarship is also a risk management strategy for communicating with institutional stakeholders.

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What questions should you consider?

Use of pre-existing material in digital scholarship

What is your and your institution’s tolerance for risk with respect to Fair Use, copyright and intellectual property infringement?

Spectrum of Risk

Will you ask for permission or forgiveness?

No tolerance
Use only ‘certified’ public domain or Creative Commons cleared materials
Keep site private (behind firewall)
Mid tolerance
Evaluate the four factors of Fair Use.
Document good faith efforts to identify rights holder, comply with Fair Use and/or obtain permission.
High tolerance
Decide who/how to reply to takedown requests
Lean on Fair Use doctrine
  • Does your institution have a copyright and/or DMCA Takedown policy?
  • Does your institution offer a rights clearance service (ex. Copyright Clearance Center) or other support for negotiating rights?
  • How do you help students navigate copyright fair use issues?
  • How will students credit authors/creators for the source material in their projects?
  • How will projects be disseminated (how public and discoverable will they be)?
  • Are your materials in the public domain?

Intellectual property rights to products of digital scholarship

  • How do you help students understand and negotiate their intellectual property rights?
  • How do you help students consider the near- and long-term implications of publishing their digital scholarship products publicly?
    • Ex. Consider that public critique of their product is protected under Fair Use.
  • Will you use Creative Commons licenses? At the student level? At project level?
  • Ask students what kinds of use or re-use of the project and they imagine.
    • What restrictions, if any do they want to impose?
    • Does your digital publishing infrastructure support these restrictions (authenticated access, access embargoes, etc.)?

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Tools and Resources

Intellectual Property

Copyright and Fair Use

Includes many of the resources featured below, and a flowchart to guide reuse and Fair Use decision-making.
Is the work protected?

Tools for determining the protection status of digital scholarship inputs.

An initiative to standardize rights statements which can be used to evaluate the protected status of a work as well as establish rights to the product of Digital Scholarship.

Open or Limited Copyright

Tools for locating content that is licensed for reuse.

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Fair Use

Is the use fair?

Definition: 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

“To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them.”
Tools for self-evaluation
Guidance on applying the four factors of Fair Use from Delaware County Community College.
An index of Fair Use case law provided by the US Copyright Office.
  • Recent Fair Use wins:
Prince and the Dancing Baby ( Lenz v Universal, via EFF)
YouTube response video ( h3h3 Productions, via Forbes)
Teaching Fair Use
Mash-up of familiar Disney movie scenes to demonstrate copyright and Fair Use concepts.
Advocating Fair Use

Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use : How to Put Balance Back in Copyright. Chicago, University of Chicago Press, 2011.

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Rights to products of digital scholarship

Rights Statements

An initiative to standardize rights statements which can be used to evaluate the protected status of a work as well as establish rights to the product of Digital Scholarship.

Open Access

Core Resources

The Budapest OA Initiative , the Bethesda Statement , and the Berlin Declaration are the founding documents of OA. They form the basis of most institutional statements on OA.

OA 2020 aims to accelerate the transition to open access by transforming the existing corpus of scientific journals from their current subscription system to open access.

  • ROARMAP (Registry of Open Access Repository Mandates and Policies) is a global registry of OA policies
OA Policy Documents
  • SPARC (Scholarly Publishing and Academic Resources Coalition).
They divide their advocacy work between OA Publishing, OA Education, and OA Data:

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OER Labor (adjunct / student labor)

Other Resources

Data Security, Privacy, and Preservation

Digital Fluency and Literacy

Grading, Rubrics, and Assessment

Who Do You Ask?

Chief Legal Officer: will explain university policies and provide a sense of institutional culture.

Copyright Officer / Digital Millennium Copyright Act Representative: provide insight of infringement claims at your institution.

Libraries are often the home of copyright and intellectual property expertise and best practices.

Original document from BUDSC17 Preconference

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