2+2 Does Not Equal Fair: University Copyright Policies at Risk

ccraig — Thu, 11 Dec 2014 14:44:42 +0000

University fair use policies were dealt a blow in October when the U.S. Court of Appeals for the 11^th Circuit reversed the District Court ruling in

Cambridge Press alleged that allowing professors to make digital excerpts available to students infringed their copyrights. The District Court had held that Cambridge Press failed to establish many instances of infringement and that the fair use defence applied in many others, leaving only 5 instances of infringement remaining.

The Court of Appeal held that the District Court’s methodology for weighing the four fair use factors combined with the erroneous application of factors two and three resulted in a legally flawed analysis. Moreover, the court should have taken a more holistic analysis and erred in giving each of the factors equal weight. Each time an excerpt fell within 10 percent or one chapter the lower court automatically held the third factor favoured fair use. Thus thirty-five of the forty-eight instances of copying were fair use by virtue of this alone, unless the factors resulted in a tie, in which case the court revisited analysis of the factors and reviewing and reweighing them for the specific work. The appeal decision focused on the case-by-case nature of a fair use analysis and rejected what it called the District Court’s “mechanical” application of the factors.

The ruling may have implications for many universities in the United States. The case directly implicated GSU’s fair use policy, which included a mechanical “” based on the analysis performed by the courts. If more than half of the factors in the checklist were in favour of fair use then professors could post the materials online. If it did not, then they had to seek permission from the rights holder. Many universities have to GSU that use the rule which was developed by the “.” In this case, the court held that the District Court was wrong to mechanically find that any use that fell within this guideline meant that factor three weighed in favour of fair use and did not require further analysis. Instead, the court held that each individual use must be considered in proportion to the whole with reference to the guidelines.

The GSU ruling aligns with case law on fair use and even fair dealing in Canada. In the Supreme Court of Canada held that the Copyright Board was required to determine whether the excerpts used by teachers were fair in proportion to the whole work, which is the same critique the Appeals Court had of the District Court’s decision. Referencing SOCAN v Bell, Alberta Education also noted that the amount is not quantitative but the aggregate proportion between the excerpt and whole work. The quantification is considered under the character of the dealing per .

The GSU ruling may also be of interest north of the border as the develops. Access Copyright that 91��ɫ’s “authorize and encourage copying that is not supported by the law”. Like GSU, the 91��ɫ policy allows 10% or less of a work or no more than a single chapter or article. However, as pointed out by , this amount is somewhat approved by the Supreme Court, which stated in CCH that “it may be essential to copy and entire academic article or entire juridical decision”. In CCH the Supreme Court found that the access policy placed appropriate limits on the type of copying done by the Law Society and the policy rather than each individual instance of copying may be the subject of analysis. However, as in GSU and Alberta Education the policy itself is not enough to claim fair dealing, the courts will still likely analyze each policy and perhaps even some of the copying taking place under the policy.

The challenge for institutions is to have a policy in place that can be broadly applied while remaining flexible enough to be sensitive to the case-by-case nature of fair dealing. In this respect, the mechanical approach taken by the District Court may have provided a useful standard for universities to work with and depend on when developing fair use policies. Instead, the uncertain nature of the case-by-case analysis often results in overly cautious copying practices and increased risk of infringement suits. This ruling may thus have universities on both sides of the border taking a hard look at their policies.

Allison McLean is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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DomainRush.xxx

ccraig — Mon, 16 Jan 2012 11:15:40 +0000

Kalen Lumsden is a JD candidate at Osgoode Hall Law School.

In response to the creation of a new, adult entertainment-centric domain - .XXX - many universities and trademark holders are buying up potentially pornographic versions of their web properties before they fall into irresponsible or malicious hands.

The .XXX domain names are reserved for adult-themed websites to create a red-light district on the internet, with all attendant advantages and disadvantages. The domains will be easily identified and blocked, likely seedy, and a headache for trademark holders. The spent almost $3000 on domains, such as www.KUgirls.xxx and www.KUnurses.xxx, and intends to sit on them and do nothing.

Beginning in 2000 ICM Registry LLC (a private company from Palm Beach, Florida) began to the Internet Corporation for Assigned Names and Numbers (, an international, not-for-profit organization that regulates internet domain names) proposing the creation of new Top-Level Sponsored Domain Registry - .XXX. As opposed to unsponsored domains, such as .com, sponsored domains are intended to represent a specific community, in this case, the adult entertainment industry. ICM’s proposal was repeatedly rejected by ICANN. Only after a February 2010 hearing by ICANN’s Independent Review Panel in Washington was ICM found to have met the required sponsorship criteria and on April 7, 2011 ICANN to ICM.

Intellectual property issues were among the main reasons .XXX was rejected for so long. The international nature of the internet conflicts with the regional nature of trademarks, so multiple valid trademark holders may by vying for the same domain name. ICM has a IP claims notifications procedures in place for this eventuality. Another obvious concern is brand damage via pornographic parodies.

In their FAQs, ICM that those not in the adult entertainment industry take a preventative approach and reserve their domain names, even though there are post-launch rights protection procedures in place. Of course, this conveniently aligns with their business model. The .XXX domain names go for $60 - $100 each, which is significantly more expensive than most .COM domains. For this reason, many critics view ICM’s business model as tantamount to extortion.

The sale was designed by ICM to address many of these concerns. It consisted of two “sunrise” periods, an auction and then a general sale. In the first phase, trademark holders inside the adult entertainment industry could claim .XXX versions of sites they already held the trademark for. In the second, non-adult brands could have their names removed from circulation. What followed was a “landrush” in which premium addresses that hadn’t removed themselves were auctioned off, for example: www.nike.xxx. Finally, as of December 6, 2011 everything remaining is being on a first-come-first-served basis through a variety of middlemen domain registries.

What about Canadian universities? Major Brands? All registrations are public, mildly entertaining and viewable . Both www.yorku.xxx and www.utoronto.xxx have been registered by 1764210 Ontario Inc. of Kleinburg, Ontario, perhaps as an investment in future mischief or for resale. UVic registered www.uvic.xxx. Others, such as www.ualberta.xxx and www.mcgill.xxx were reserved during the sunrise phase and are not available for registration.

At present, www.osgoodehall.xxx is currently available for purchase for the low price of $99.99 USD a year if any law students are seeking a fallback career or foothold in the adult entertainment industry.

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2+2 Does Not Equal Fair: University Copyright Policies at Risk

DomainRush.xxx