Also a slide on the UCLA streaming video case. I failed to credit my own photo of the trees. It's CC-BY, available at http://www.flickr.com/photos/allergictowork/8270548973/in/photostream

1. Questions Around Digital Fair Use
UCSC COLASC, 2/26/13
Katie Fortney
Copyright Management Officer, CDL
katie.fortney@ucop.edu

2. 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.

3. Today
• Just a few trees in the
fair use forest
– Incorporated images and
the proposed Open Access
Policy
– UCLA and streaming video

4. 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-NC
http://www.flickr.com/photos/pdxsurreal/242001382/

5. Images Incorporated as Fair Use
Fair use in article Fair use in
as published eScholarship

6. Images Incorporated by Permission
Read the
image
agreement
OA archiving
OA archiving
does not
would violate
violate the
the agreement
agreement
Deposit only
Treat like any
for dark
other article – Get a waiver*
archiving in
post it!
Merritt

7. *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.

8. 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-NC
http://www.flickr.com/photos/picturewendy/5231649239/

9. Questions?
Question mark sign, by Colin K, CC-BY
http://www.flickr.com/photos/colinkinner/2200500024/

10. 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”