Clean Run - October 2014 - 7

Everything you
always wanted to know
about agility

By Brenna Fender

I often see courses from trials online, but a friend told me that she was
asked to take one down because a judge said that it was their intellectual
property and it is illegal to post courses without permission. Is this true?
There are many factors that must be considered when determining the
legality of sharing something, like an agility course, that was created
by someone else.
While most agility organizations take no stand on the issue, some have
official opinions or policies. The North American Dog Agility Council
(NADAC) provides courses to judges for use at trials. NADAC representative Becky Woodruff says, "NADAC asks, as a courtesy, that
competitors do not post courses." Once courses are retired and posted
online on the NADAC forum, competitors are allowed to share them.
The United States Dog Agility Association also has a policy regarding
sharing courses. President Kenneth Tatsch says, "USDAA considers
all course designs presented at its events as in the public domain after
they have been officially posted and presented at an event. Our position on the issue of copyright is that [the course] is a collaborative effort
between the judge, course reviewers, and USDAA, and may be considered a work-for-hire, as they are compensated for their designs and
review services by USDAA." Tastch does say that a judge should be
given credit as a principal course designer on courses viewed publicly.
But is sharing courses online legal? It depends on the circumstance and
a judge's interpretation in a court of law. According to Tammy Wendt,
Attorney at Law, "Most of the time, this would likely be considered
an exception to copyright infringement under the Fair Use Doctrine.
Course maps would likely be protected [by copyright] but, according
to 17 U.S.C. Sec. 102(b), protection never extends to ideas, procedures, processes, systems, methods of operation, concepts, principles,
or discovery. There are four factors the Court would use in determining whether [posting a course online] was Fair Use and those are: (1)
the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a whole; and (4)
the effect of the use upon the potential market for or value of the copyrighted work. (17 U.S.C. Sec. 107). Under these circumstances, the
largest obstacles a copyright owner would have to overcome in arguing
against Fair Use would probably be that the potential market was significantly harmed and that financial gain was realized by the infringer."
A judge would have to compare the factors in favor of Fair Use to
those against it. Wendt makes the following comparisons:
"In favor: (Purpose) the purpose of the post was for teaching, criticism,
comment, [or] parody... and, the post was only available to a certain

Do you have a question about agility
rules or anything else agility related?
Mail your questions to Brenna Fender:
brennafender@gmail.com
Brenna collects the questions and forwards
them to us so we never see the names.

group of people. It was not posted for commercial use and no financial
gain was recognized; (Nature) the post was of an already published
or used course map and the reason for doing so was to promote and
improve the skills and ability of competitors; (Amount) posting the
entire course map was necessary in order to achieve the desired level
of learning and education among competitors; (Effect) the poster lawfully obtained a copy of the course map by having entered the trial and
that class, and several copies of the map were already made available
and distributed to everyone at the trial. Posting the course map does
not affect the potential market for this product since the course cannot
be used again at [most trials], and/or the owner is not selling the course
maps, and there is no licensing mechanism which permits its use.
Against: (Purpose) the poster is ignoring copyright law and not giving
credit to the owner for its creation [if the judge's name is not included];
(Amount) the entire portion of the course map was posted; (Effect) the
course map was made openly accessible by posting on the Internet...
and it will be visible for many years."
The arguments in favor of Fair Use appear to far outweigh those
against it, so, "Under these circumstances, posting a course map on
social media or the Internet would likely be considered an exception
to copyright infringement. However, each post or publication should
be considered on a case-by-case basis and all four factors used under
the Fair Use Doctrine should be weighed individually in order to determine whether such publication would be considered an exception,"
according to Wendt.
If you do choose to post a course online, do make sure that you
provide credit to the judge.
Thank you to Tammy Wendt for her assistance with this article.
Wendt has a virtual law office and can be reached at tdwendtlaw
@gmail.com. D

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October 14 | Clean Run

Clean Run - October 2014

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