[At-Large] ODP: ODP: ODP: Presentation Tips

Greg Shatan greg at isoc-ny.org
Mon Jun 22 00:24:05 UTC 2020


Joanna, Joly and all,

The US is a member of the Berne Convention, though only since 1989.  The
Berne Convention allows for a fair amount of variability among national
laws of members, as long as the laws are consistent with the high-level
concepts of Berne.  US "fair use" is generally considered to be consistent
with Article 9(2) of the Berne Convention:

 (2) It shall be a matter for legislation in the countries of the Union to
permit the reproduction of such works in certain special cases, provided
that such reproduction does not conflict with a normal exploitation of the
work and does not unreasonably prejudice the legitimate interests of the
author.

Article 9(2) is often viewed as a three-step test, applied to exceptions
from copyright protection:

   1. Does the exception apply only in "certain special cases"?
   2. Does the exception "conflict with a normal exploitation of the work"?
   3. Does the exception "unreasonably prejudice the legitimate interests
   of the author"?

Article 9(2) covers the reproduction right in all contexts and is broader
than Article 10 (which you quote), which only relates to teaching and
research.  Given this broader reach, it appears that the consistency of
fair use with Berne is primarily (or at least first) analyzed under 9(2).
With regard to Article 10, I believe US fair use is consistent with Article
10 as well, though the statute does not specifically deal with the
attribution right in Article 10(3).  However, in the context of teaching
and research, attribution is widely expected and failure to attribute can
lead to accusations of plagiarism and other negative consequences.  I
believe that a fair use analysis in the context of teaching and research
would consider attribution (or the failure to attribute) in considering
whether the use is fair.

With regard to applicability and relevance of US fair use in our
discussion, an analysis of conflicts of laws, jurisdiction and comity in
international copyright law is probably beyond the limits of an email
exchange.  There's probably an interesting paper, article or even law
review article that can be made of all the issues and facts at play here.

I do have the following thoughts:

   - As a general matter, I believe Berne and other international copyright
   treaties and principles look to the jurisdiction of publication to consider
   which law to apply.
   - To the extent either the (potentially fair) use or the original
   publication takes place in the US, US fair use law would be relevant.
   - Malaysian copyright law is probably not applicable to a virtual
   conference unless there is a sufficient physical nexus to Malaysia.
   - If your use occurs in Poland, I expect that an analysis under Polish
   law would be relevant to considering whether the use is fair.  If the
   publication from which the use is taken comes from another jurisdiction, I
   would take that country's laws into consideration as well.  (Which law
   actually applies is a more complex question.)
   - Given ICANN's nexus with the US, and the likelihood that much of the
   "production" of ICANN68 is taking place in the US, there may well be a
   sufficient nexus between any publication in this ICANN virtual meeting to
   make US fair use relevant to the discussion of any use in the context of
   ICANN68.
   - The fact that presentations will be viewed from dozens of countries
   adds an additional complexity to the analysis.
   - On the other hand, Berne tries to limit the number of different laws
   and jurisdictions that will actually be invoked in a dispute.

With regard to Joly's question, I'm not personally aware of any situation
where somebody making a policy presentation, offline or online, has been
hit with copyright violation charges.  There are a number of reasons this
is relatively unlikely to occur with regard to textual uses:

   - These uses are at the heart of the types of uses protected by fair use
   and related doctrines.
   - It's likely that fairly small portions of any piece will be used.
   - These uses are non-commercial and unlikely to interfere in the market
   for the underlying use.
   - Much of the material being used is intended to be relied on in the
   discussions of others.
   - The market and value for the underlying work is probably increased by
   its citation and quotation in the work of others.
   - Government works are often not protected by copyright.
   - The dissemination of such uses is probably fairly limited.  The
   broader the distribution, the more likely that there will be other eyes
   looking out for issues such as copyright infringement

The use of unrelated illustrations and photos to enliven a presentation
presents a more complex case, since there may not be a real "fair use"
justification for using an online photo of Kuala Lumpur or a random
illustration of a woman looking at a laptop.  At this point, I would look
back to the earlier advice in this thread on using royalty-free, public
domain, public licensed or other types of materials, which will minimize or
eliminate the risk of a successful claim.  I would also point to the
limited audience, which will minimize the risk of a claim in the first
place.

Audio or audio-visual uses may be even more likely to trigger a claim
(rightly or wrongly).  The question then goes back to whether there is a
"fair use" or related defense or reason to apply to the particular use
case.

Hope this helps!

Best regards,

Greg
--------------------------------------------------------------------
*Greg Shatan | President, ISOC-NY*
greg at isoc-ny.org


*"The Internet is for everyone"*


On Sun, Jun 21, 2020 at 12:42 PM Internet Society - NY Chapter <
admin at isoc-ny.org> wrote:

> Hi Greg,
>
> Do you know of any actual cases where somebody making a
> policy presentation, offline or online, has been clobbered for copyright?
>
> In my experience the only problem comes with audio on the occasional video
> whenstreaming through Content ID-emabled platforms.
>
> joly
>
>
>
> On Sun, Jun 21, 2020 at 4:04 AM jkuleszaicann at gmail.com <
> jkuleszaicann at gmail.com> wrote:
>
>> Thanks for these Greg! Just curious: how closely do you guys follow the
>> Berne convention in the US? If in KL should we follow Malaysian fair use
>> rules? Or if I'm presenting from Poland can I stick to Polish ones? Not
>> sure the US reference is particularly useful here, although always most
>> appreciated!
>>
>> Free Uses of Works:
>> *1. Quotations; 2. Illustrations for teaching; 3. Indication of source
>> and author*
>>
>> (1) It shall be permissible to make quotations from a work which has
>> already been lawfully made available to the public, provided that their
>> making is compatible with fair practice, and their extent does not exceed
>> that justified by the purpose, including quotations from newspaper articles
>> and periodicals in the form of press summaries.
>>
>> (2) It shall be a matter for legislation in the countries of the Union,
>> and for special agreements existing or to be concluded between them, to
>> permit the utilization, to the extent justified by the purpose, of literary
>> or artistic works by way of illustration in publications, broadcasts or
>> sound or visual recordings for teaching, provided such utilization is
>> compatible with fair practice.
>>
>> (3) Where use is made of works in accordance with the preceding
>> paragraphs of this Article, mention shall be made of the source, and of the
>> name of the author if it appears thereon.
>> Taking notes for that CB webinar!
>> Thanks all
>> J.
>>
>> ------ Oryginalna wiadomość------
>> *Od: *Greg Shatan
>> *Data: *Sob., 20 cze 2020 23:09
>> *Do: *Jonathan Zuck;
>> *DW: *At-Large Worldwide;
>> *Temat:*Re: [At-Large] ODP: ODP: Presentation Tips
>>
>> I'd be happy to prepare a more detailed discussion of fair use, but
>> here's a short description adapted from one I prepared recently for another
>> purpose:
>>
>> *FAIR USE*
>>
>>
>>
>> Copyright owners control several exclusive rights -- the right to:
>>
>>
>>
>>    - reproduce the work,
>>    - distribute copies of the work,
>>    - perform the work,
>>    - publicly display the work,
>>    - transmit the work digitally,
>>    - make derivative works (adaptations, etc.) of the work.
>>
>> This is often referred to as the "bundle of rights."
>>
>>
>>
>> There is a limited “*fair use*” exception to the copyright owner’s
>> control of these rights.  More accurately, it is a defense to a claim of
>> copyright infringement. Practically, the fair use exception is used to
>> determine whether one can make a particular use of a copyrighted work
>> without permission (or obligation for payment).
>>
>>
>> Fair use considers four factors in a "balancing test" where no one factor
>> is dispositive and the importance of the factors may vary based on
>> context.  The four factors are:
>>
>>
>>    1. The purpose of the use (e.g., comment, criticism, and teaching
>>    relating to the work or using the work in a relevant way favor fair use;
>>    parody favors fair use, but only if the copyrighted work is being
>>    parodied.  Overall, the analysis often looks at whether the use is
>>    "transformative" -- does it add new expression, meaning, insight,
>>    aesthetics or understandings to the original work?)
>>    2. The nature of the p ublication (broadly speaking, commercial vs.
>>    non-commercial, with the latter favoring fair use)
>>    3. The amount and substantially of the work used; (use of an entire
>>    work disfavors fair use, while use of a small part of the work is likely to
>>    favor fair use; however, the importance of the part taken will also be
>>    considered -- taking the "heart" of a work or the "hook" of a song will
>>    disfavor fair use)and
>>    4. The effect on the [potential] market for the copyrighted work
>>    (i.e.., will the intended use act as a substitute or replacement for the
>>    copyrighted work in the marketplace, such that the market for the
>>    copyrighted work is diminished)
>>
>> A fair use analysis balances these four factors in determining if a use i
>> s fair.  While no one factor is dispositive, the first factor often leads
>> the way.  However, taking an entire work for a commercial purpose will also
>> lead the way (away from fair use).  In the end, it is a fact-intensive
>> balancing test, which is often difficult in close cases, even for
>> experienced lawyers.
>>
>>
>> There is far more to the subject than this, and this should not be taken
>> as legal advice.
>>
>>
>> Two final notes:
>>
>>
>>    - The discussion above relates only to *copyright* fair use.
>>    Trademark fair use is a separate subject.
>>    - The discussion above related to US law only.  Related concepts in
>>    other legal systems work quite differently, and are often more narrow than
>>    US fair use.
>>
>> I hope this is helpful.  Happy to answer questions or to be part of the
>> presentation being discussed.
>>
>> Best regards,
>>
>> Greg
>>
>>
>> --------------------------------------------------------------------
>> *Greg Shatan | President, ISOC-NY*
>> greg at isoc-ny.org
>>
>>
>> *"The Internet is for everyone"*
>>
>>
>> On Sat, Jun 20, 2020 at 4:26 PM Jonathan Zuck <
>> JZuck at innovatorsnetwork.org> wrote:
>>
>>> Perhaps...or...we start using Slack or Loomio to keep such discussions
>>> archived...
>>>
>>> Jonathan Zuck
>>> Executive Director
>>> Innovators Network Foundation
>>> www.InnovatorsNetwork.org
>>>
>>> ------------------------------
>>> *From:* Nadira Alaraj <nadira.araj at gmail.com>
>>> *Sent:* Saturday, June 20, 2020 1:13:58 PM
>>> *To:* Jonathan Zuck <JZuck at innovatorsnetwork.org>
>>> *Cc:* At-Large Worldwide <at-large at atlarge-lists.icann.org>; Maureen
>>> Hilyard <maureen.hilyard at gmail.com>
>>> *Subject:* Re: [At-Large] ODP: ODP: Presentation Tips
>>>
>>> Yes, I know,
>>> If someone can summarize and sort all the copyright related comments
>>> that was raised and shared on this thread to be developed as a tool kit
>>> that would be great.
>>>
>>> By the way, and on the discussion happens on email threads, it would be
>>> good practice to have someone (maybe Atlas III ambassadors) come up with a
>>> blog to highlight all the points raised on certain topic.
>>>
>>>
>>> On Sat, Jun 20, 2020 at 10:58 PM Jonathan Zuck <
>>> JZuck at innovatorsnetwork.org> wrote:
>>>
>>> I think they're talking about a copyright webinar, FYI.
>>>
>>> Jonathan Zuck
>>> Executive Director
>>> Innovators Network Foundation
>>> www.InnovatorsNetwork.org
>>> ------------------------------
>>> *From:* At-Large <at-large-bounces at atlarge-lists.icann.org> on behalf
>>> of Nadira Alaraj <nadira.araj at gmail.com>
>>> *Sent:* Saturday, June 20, 2020 12:49:19 PM
>>> *To:* Maureen Hilyard <maureen.hilyard at gmail.com>
>>> *Cc:* At-Large Worldwide <at-large at atlarge-lists.icann.org>
>>> *Subject:* Re: [At-Large] ODP: ODP: Presentation Tips
>>>
>>> This issue is soft skills, could be arranged on demand basis.
>>> Much better to leave the webinar time to ICANN DNS policies related
>>> issues.
>>>
>>>
>>> On Sat, Jun 20, 2020 at 10:22 PM Maureen Hilyard <
>>> maureen.hilyard at gmail.com> wrote:
>>>
>>> +1 on the webinar - Hadia???
>>>
>>> On Sat, Jun 20, 2020 at 6:23 AM jkuleszaicann at gmail.com <
>>> jkuleszaicann at gmail.com> wrote:
>>>
>>> One thing's for sure: We definitely need that webinar, and one that
>>> looks at different jurisdictions too! Should be fun :D
>>>
>>> Thanks for starting the thread Marita!
>>> J.
>>>
>>> ------ Oryginalna wiadomość------
>>> *Od: *Jonathan Zuck
>>> *Data: *Sob., 20 cze 2020 18:12
>>> *Do: *jkuleszaicann at gmail.com;Marita Moll
>>> ;at-large at atlarge-lists.icann.org;
>>> *DW: *
>>> *Temat:*Re: [At-Large] ODP: Presentation Tips
>>>
>>> I always hate to contradict you, Joanna, but “fair use” applies if
>>> you’re talking *about* the image, NOT when you’re *using* the image to
>>> talk about something else.
>>>
>>>
>>>
>>> *From: *At-Large > on behalf of
>>> <%3Cat-large-bounces at atlarge-lists.icann.org>"jkuleszaicann at gmail.com" >
>>> <%3Cjkuleszaicann at gmail.com>
>>> *Date: *Saturday, June 20, 2020 at 8:47 AM
>>> *To: *Marita Moll >, <%3Cmmoll at ca.inter.net>
>>> "at-large at atlarge-lists.icann.org" >
>>> <%3Cat-large at atlarge-lists.icann.org>
>>> *Subject: *[At-Large] ODP: Presentation Tips
>>>
>>>
>>>
>>> Marita, why not try printscrins, preferably with the address bar visible
>>> (source of your cited resource)? There is a copyright webinar coming up,
>>> but printscrins generally fall into fair use as citations, esp. if you
>>> refer to them in your presentation (assuming you'd probably not use them
>>> otherwise).
>>>
>>> Hope this helps.
>>>
>>>
>>>
>>> Thanks JZ!
>>>
>>> Best to all
>>>
>>> J.
>>>
>>>
>>>
>>> ------ Oryginalna wiadomość------
>>>
>>> *Od: *Marita Moll
>>>
>>> *Data: *Sob., 20 cze 2020 17:16
>>>
>>> *Do: *at-large at atlarge-lists.icann.org;
>>>
>>> *DW: *
>>>
>>> *Temat:*Re: [At-Large] Presentation Tips
>>>
>>>
>>>
>>> Great tips Jonathan -- but we can't just take images from the web and
>>> stick them on powerpoints destined for a world wide audience and which will
>>> continue to exist in archives. Got a solution for that?
>>>
>>> Marita
>>>
>>> On 6/20/2020 10:10 AM, Jonathan Zuck wrote:
>>>
>>> 2 4 5 3 5 4 6 3 2 4;} @font-face {font-family:Calibri; panose-1:2 15 5
>>> 2 2 2 4 3 2 4;} /* Style Definitions */ p.MsoNormal, li.MsoNormal,
>>> div.MsoNormal {margin:0in; margin-bottom:.0001pt; font-size:11.0pt;
>>> font-family:"Calibri",sans-serif;} p.MsoListParagraph, li.MsoListParagraph,
>>> div.MsoListParagraph {mso-style-priority:34; margin-top:0in;
>>> margin-right:0in; margin-bottom:0in; margin-left:.5in;
>>> margin-bottom:.0001pt; font-size:11.0pt; font-family:"Calibri",sans-serif;}
>>> span.EmailStyle19 {mso-style-type:personal-reply;
>>> font-family:"Calibri",sans- serif; color:windowtext;} .MsoChpDefault
>>> {mso-style-type:export-only; font-size:10.0pt;} @page WordSection1
>>> {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in;} div.WordSection1
>>> {page:WordSection1;} /* List Definitions */ @list l0 {mso-list-id:
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>>> mso-level-number-position:left; text-indent:-.25in;} @list l0:level2
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>>> mso-level-number-position:right; text-indent:-9.0pt;} @list l0:level4
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>>> text-indent:-.25in;} @list l0:level5 {mso-level-number-format:alpha-lower;
>>> mso-level-tab-stop:none; mso-level-number-position:left;
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>>> mso-level-number-position:left; text-indent:-.25in;} @list l0:level8
>>> {mso-level-number-format:alpha-lower; mso-level-tab-stop:none;
>>> mso-level-number-position:left; text-indent:-.25in;} @list l0:level9
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>>> 1697845267; mso-list-type:hybrid; mso-list-template-ids:-1100996502
>>> 67698703 67698713 67698715 67698703 67698713 67698715 67698703 67698713
>>> 67698715;} @ list l1:level1 {mso-level-tab-stop:none;
>>> mso-level-number-position:left; text-indent:-.25in;} @list l1:level2
>>> {mso-level-number-format:alpha-lower; mso-level-tab-stop:none;
>>> mso-level-number-position:left; text-indent:-.25in;} @list l1:level3
>>> {mso-level-number-format:roman-lower; mso-level-tab-stop:none;
>>> mso-level-number-position:right; text-indent:-9.0pt;} @list l1:level4
>>> {mso-level-tab-stop:none; mso-level-number-position:left;
>>> text-indent:-.25in;} @list l1:level5 {mso-level-number-format:alpha-lower;
>>> mso-level-tab-stop:none; mso-level-number-position:left;
>>> text-indent:-.25in;} @list l1:level6 {mso-level-number-format:roman-lower;
>>> mso-level-tab-stop:none; mso-level-number-position:right;
>>> text-indent:-9.0pt;} @list l1:level7 {mso-level-tab-stop:none;
>>> mso-level-number-position:left; text-indent:-.25in;} @list l1:level8
>>> {mso-leve l-number-format:alpha-lower; mso-level-tab-stop:none;
>>> mso-level-number-position:left; text-indent:-.25in;} @list l1:level9
>>> {mso-level-number-format:roman-lower; mso-level-tab-stop:none;
>>> mso-level-number-position:right; text-indent:-9.0pt;} ol
>>> {margin-bottom:0in;} ul {margin-bottom:0in;} -->
>>>
>>> Folks,
>>>
>>> At the request of “management,” I’m working on a class on PowerPoint and
>>> how to use it for Presentations, Videos and Course development but it will
>>> be quite a while before it is finished. In the meantime,  Maureen asked if
>>> I would simply share some presentation tips so, here are some, in rough
>>> format. I hope they are helpful. JZ
>>>
>>>
>>>
>>> *FACTS*
>>>
>>>    1. *People cannot listen and read at the same time.*
>>>    Period. Both activities engage the language center of the brain.
>>>    They will do only one and, more often than not, that's read. If they are
>>>    reading the same slides you are, then why are you there?
>>>
>>>    </span >
>>>    2. *Slides should supplement the talk, not the other way around.*
>>>    The big joke is that during EVERY Zoom meeting, people ask if the
>>>    slides will be available. It's funny first because the answer is ALWAYS yes
>>>    but, more importantly, your slides should not be able to stand on their own.
>>>
>>>    </span >
>>>    3. *People CAN absorb pictures and listen at the same time*
>>>    Looking and listening engage different, complimentary, parts of the
>>>    brain. The best analogy for a good presentation is a documentary film. They
>>>    generally have narration and visuals. Imagine if Ken Burn's documentary
>>>    about the American Civil War was a series of PowerPoints with titles and
>>>    bullets!</span >
>>>
>>>
>>>
>>> *ADVICE ON SLIDES*
>>>
>>>    1.
>>>
>>> *Only pictures and punchlines </span >*
>>>    2.
>>>
>>> *6 words or LESS </span >*
>>>    3. *Bring People Back*
>>>    Ideally, people spend more time looking at you than your slides.
>>>    This is harder in the virtual world, for sure, especially if there's no
>>>    video, but consider a blank slide or a picture of yourself as you explain
>>>    something. Tell people to close their eyes, even!
>>>
>>>    </span >
>>>    4. *Turn sentences into pictures and punchlines*
>>>    In other words, edit down sentences to the bare minimum to be
>>>    understood, make numbers Arabic instead of text and make them bigger and
>>>    different colors than the text. A sentence like “Research shows that
>>>    ninety-five percent of applications for community priority evaluation
>>>    failed to gain approval,” could be represented on a slide as
>>>    [image: A close up of a sign Description automatically generated]</span
>>>    >
>>>    5. *Notes in Notes Section*
>>>    If you wish to include explanations in your slide deck, do it in the
>>>    notes section. Then they are there for you to use and EVEN available to
>>>    share by making a PDF of the Notes View, instead of the slide view! Another
>>>    benefit of putting what you plan to say iin the Notes is that you can often
>>>    share them with the interpreters in advance.
>>>
>>>    </span >
>>>    6.
>>> *Rehearse It’s the only way you’ll ever know how long your presentation
>>>    is becoming or whether you’re going to stumble over a particular phrase or
>>>    simply be at a loss for words. You can use the “Rehearse Timing,” feature
>>>    under the Slide Show  menu.</span >*
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>>
>>> At-Large mailing list
>>>
>>> At-Large at atlarge-lists.icann.org
>>>
>>> https://atlarge-lists.icann.org/mailman/listinfo/at-large
>>>
>>>
>>>
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>>>
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>>>
>>>
>>>
>>>
>>> --
>>>
>>>
>>>
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>>
>> _______________________________________________
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>
>
> --
> ---------------------------------------------------------------
> Joly MacFie  218 565 9365 Skype:punkcast
>
> ISOC-NY - http://isoc-ny.org
> ---------------------------------------------------------------
>
>
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