Tuesday, May 27, 2014

Hospitals and Fair Use

Dear Rich: We are part of a team working on an article for nurses who work in professional staff development, trying to clarify when the doctrine of fair use would apply to our jobs. We have been referencing the 5th edition of your book, Getting Permission, and it stated that hospitals also are considered educational institutions under most educational fair use guidelines. This brought up some questions that we are having trouble answering. Where can we find more information about the hospital aspect and definition? Can you elaborate when use within a hospital would be considered fair use? Our understanding is that there must be an element of spontaneity involved (i.e., there is not sufficient time available to secure the appropriate copyright release). Is it only "teaching" hospitals (associated with a university) that are covered? What about for-profit hospitals, critical access hospitals without educators on-site, or clinics? Do educators within a hospital have to be in a classroom? Do staff development (inservices, etc.) count as classroom use? Additionally, we couldn't find "Educators" defined in Circular 21 from the U.S. Copyright Office, and are wondering if you have a definition that you've used in the past (we couldn't locate it easily in your book). As you may be aware, the educational guidelines are recommended principles, not federal laws. However, courts and the Copyright Office look to them for minimum standards for fair use in education -- that is, they're a starting point.
The guideline definitions. Educators are defined as:
"[F]aculty, teachers, instructors, curators, librarians, archivists, or professional staff who engage in instructional, research, or scholarly activities for educational purposes as their assigned responsibilities at educational institutions; independent scholars also are considered educators under this definition when they offer courses at educational institutions."
Similarly, "Educational purposes" are defined as:
"[N]on-commercial instruction or curriculum-based teaching by educators to students at nonprofit educational institutions, and research and scholarly activities, defined as planned non-commercial study or investigation directed toward making a contribution to a field of knowledge and non-commercial presentation of research findings at peer conferences, workshops, or seminars."
Establish your own standards? Keep in mind that the fair use statute is deliberately vague and the final determination can only come from a court. For that reason, we suggest that you look inward for fair use guidance and answers -- that is, create your own policy manual. Start by looking at the cases, synthesizing some rules, and considering practical realities -- for example, how litigious is the content owner? Hopefully, you can also get advice from your hospital's general counsel (or outside counsel). Your review is likely to reveal that fair use decisions fall within a risk-analysis spectrum. Spontaneity, for example, may figure into some educational exemptions, but may not be as important a factor as the transformative nature of your use.
P.S. Perhaps you can obtain more information from The Association of American Medical Colleges (AAMC), one of the associations that participated in formulating the 1998 fair use guidelines.

No comments:

Post a Comment