1 Copyright Boot Camp June 1, 2015
2 Carla Myers Assistant Professor Director of Access Services & Scholarly Communications Campus Copyright Specialist The University of Colorado Colorado Springs Kraemer Family Library
3 Overview Copyright Basics Copyright Exemptions Libraries and CopyrightAnswering Copyright Questions Infringement
4 Please Note: The information provided in this presentation should not be construed as legal advice. If you have a legal question you should speak with an attorney.
5 Common MisconceptionsIf it’s on the internet, I can use it however I want! If it’s an educational/personal/library use I can use anything I want, however I want, right? I’ll never get caught!
6 Overview of Copyright Law
7 Origins Copyright Law Article 1 Section 8 of the U.S. Constitution and represents the founding fathers effort "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
8 The Law Copyright is codified in title 17 of the U. S. CodeDefinitions Scope Rights & Limitations Exceptions
9 Securing Copyright Copyright protection subsists in “in original works of authorship” (not copied) which are “fixed in any tangible medium of expression.” 17 U.S.C. § 102
10 This means… We all own thousands of copyrights.Much of what we encounter in our daily lives is protected by copyright. Includes physical works and those we find online Copyright notice (e.g. © 2014 by Carla Myers) is no longer required!
11 Registering with the Copyright OfficeRegistration and the inclusion of a copyright notice is no longer necessary, but does have some benefits Documents your ownership in the copyright of the work Allows you to swiftly bring suit against someone who is infringing on your copyright
12 Scope of Copyright Protection
13 What is Copyrightable? Literary works (fiction/nonfiction, poetry, textbooks, reference works, directories, catalogs, advertising copy, compilations of information, computer programs and databases) Musical works (this generally refers to music scores & accompanying words) Dramatic works (plays, film, radio, and television scripts) Pantomimes and choreography Pictorial, graphic, and sculptural works (art) Motion pictures and other audiovisual works (film, television show, videogame, etc.) Sound recording (performances of musical works, audio recordings of literary works) Architectural works (just the designs, not the building its self!) 17 U.S.C. § 102
14 What is Not Copyrightable?Ideas—no one can copyright an idea, however your expression of an idea may be protectable. Making ideas freely available for anyone to pursue “promotes the progress of…useful arts”
15 Examples Performing arts students are asked to create an impressionistic painting of a vase of flowers. Members of a literary group each compose a poem about Pikes Peak. Bands compose songs that falls into a punk, pop, or rock-and-roll feel. Songs that share a similar sound or beat. Example: 4 Chords, by The Axis of Awesome https://www.youtube.com/watch?v=oOlDewpCfZQ
16 What is Not Copyrightable?Facts-No one may claim originality as to facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery. The first person to find and report a fact has not created it, they have merely discovered its existence –Fiest v. Rural Making facts freely available also “promotes the progress of science” in that others can build upon them, advancing science and encouraging discovery. Photo Credit: census.gov
17 What is Not Copyrightable?Works in the public domain, which include… Works whose copyright has expired Works created by the U.S. Government
18 What is Not Copyrightable?Works that are not fixed in a tangible medium of expression do not have copyright protection. Choreography developed during a dance class Music played during a jam session
19 What is Not Copyrightable?Names, phrases, slogans, titles, symbols (though these could be protected under trademark)
20 What is Not Copyrightable?Mere variation of typographic ornamentation, lettering, or coloring
21 What is Not Copyrightable?Simple listings, e.g. table of contents, recipe ingredients (think facts!)
22 What is Not Copyrightable?Procedures, methods, processes (though these could be protected under patent or trade secret law)
23 What is Not Copyrightable?Works consisting of common facts, e.g. calendar, height/weight chart, ruler.
24 Exceptions!
25 Copyright in the Expression of FactsYou could have copyright for your writings about facts Textbook Nonfiction Scholarly article Could secure copyright for your arrangement of facts/data Section of facts and data used in an annotated bibliography Arrangement and layout of a pie chart or graph
26 Copyright in new Expressions/Components of Public Domain WorksPhoto Credit: amazon.com
27 Works Created by Employees of the U. SWorks Created by Employees of the U.S. Government Could have Copyrightable Components Photo Credit: nps.gov
28 Copyright in Graphic DesignBringing shapes, lettering, and coloring together in a way that is protectable. Protectable! Photo Credit: makingcolorado.gov Not Protectable
29 Copyright in InstructionsPioneer Woman Website/Blog
30 Copyright in Listings/Arrangement of Facts
31 Copyright Ownership
32 The Rightsholder is… Generally, the person who creates the work.Joint Authorship-When two or more authors work together to create a work the copyright is shared between them. Authors must decide to work collaboratively Each author must contribute significantly to the copyrightable expression to the work “Merged into inseparable or interdependent parts of a unitary whole”
33 Works Made for Hire Works created by the employee in the scope of their employment Generally, the copyright will rest with the employer Works created by independent contractors Even with commissioned works, the parties must agree in writing ahead of time who will hold the rights to the work
34 Duration of Copyright
35 How Long Does Copyright Last?Works created after Jan. 1, 1978 are protected for the life of the author plus 70 years Join authorship-life of last surviving author +70 years Works for Hire-95 years from publication or 120 years from creation, whichever is shorter For older works, it depends…
36 Works Created Before 1923 Works published before 1923 are in the public domain. Use them anyway you like! Republish, make a movie or play, add commentary Original work is still not protected, but your expression of it is Always, always give proper attribution!
37 In Limbo Works published between 1923-1978 It depends!Inclusion of copyright notice? Was it registered? Was the copyright renewed? Check resources like Google Books, Hathi Trust, & Project Gutenberg, to see if any notes on status If in doubt, treat as a protected work ALA Digital Copyright Slider
38 Authors Rights
39 Authors Rights Owner of a protected work is provided with certain right…. The right to reproduce (copy) the work The right to distribute the work (share/publish/sell)
40 Derivative Works Reconstructing an original work to express it in a different way, e.g. Eragon, by Christopher Paolini
41 Public Display To “display” a work means to show a copy of it, either directly or by means of a film, slide, TV image, or any other device or process. In the case of motion picture or visual work, to show individual images nonsequentially Examples of Public Displays Showing images in the classroom Including a film still as part of a movie review posted to a website
42 Public Performance To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process In the case of a motion picture or other audiovisual works, to show its images in sequence or to make accompanying sounds audible. Examples of Public Performances Acting out a play Hosting a film screening Musical performance Story time!
43 In Conclusion
44 Summary It’s very easy to secure copyrightMany different types of works are protected Work have copyright protection for a long time Copyright infringement can occur when you take advantage of an authors right without their permission: Reproducing a work Distributing a work Making a derivative Making a public display or performance
45 Questions?
46 Exceptions to Owners Rights
47 Legal Exceptions Many exceptions to copyright, with a few specific to education and libraries Fair Use Library/Archival Copying First Sale Doctrine Face-to-Face Teaching Special Formats for those with Disabilities Digital Millennium Copyright Act
48 17 U.S.C. § 107 Fair Use
49 Fair Use Provides us with the ability to use portions of copyright works for the purpose of teaching, research, news reporting, criticism, and commentary. Use would otherwise be infringing Allows us to share ideas and advance knowledge Each application of fair use must be examined on a case-by-case basis
50 Four Factors In determining whether the use made of a work in a particular case is a fair use the factor to be considered shall include— the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relations to the copyright work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work
51 Factor 1: Purpose & Character of the UseNonprofit educational use is heavily favored over a commercial use Transformative uses carry a lot of weight
52 Transformative Use Have you turned it the original into something new by adding new expression or meaning? Judge Pierre Leval provides a wonderful definition of “transformative use” in his article Toward a Fair Use Standard, which can be found here: He states that a transformative use… “must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings-- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”
53 Examples of Transformative Use-MusicMusical Mash-up Israel Kamakawiwo'ole’s: Somewhere Over the Rainbow/What a Wonderful World Cast of Glee: The Way You Look Tonight / You're Never Fully Dressed Without A Smile
54 Examples of Transformative Use-ArtParody
55 Examples of Transformative Use-ArtPassenger Pigeons, John James Audubon, 1829
56 Examples of Transformative Use in PublicationIn Publication Bill Graham Archives v. Dorling Kindersley
57 Examples of Classroom Transformative UseUsing a popular movie to teach a subject, e.g. using clips from World War Z to discuss disaster response. Comparing and contrasting poems against each other.
58 Factor 2: The Nature of the WorkExplores the characteristics of the work being used Fiction vs. nonfiction Published vs. unpublished Consumable? Salinger?
59 Factor 3: The Amount & Substantiality of the Portion UsedLooks at quantity and quality “There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use” -Maxtone-Graham v. Burchael
60 Using a Lot-Suntrust Bank v. Houghton Mifflin
61 Using a Little- Harper & Row v. Nation Enterprises
62 Best Practice Consider the amount needed to serve the purpose of the use in relation to the work being used. This is a judgment call, and one you must be prepared to justify should your use of the work ever come into question! If straight copying or quoting, less is better If transformative, can usually justify more!
63 Factor 4: Effect on the MarketIs your use resulting in lost revenue for the rightsholder? Occurs when use replaces sale of the work This factor often carries a lot of weight, especially when looking at commercial uses Can weigh in favor if use is transformative (parody, mash-up) Consider that your use could actually help the market for the item! (comment, critique)
64 But it’s so confusing! Congress deliberately created fair use to flexible so that it could apply to many different situations. Unfortunately though, this can lead to uncertainty regarding its application.
65 Fair Use Tools
66 Using Fair Use Tools These decisions are very subjective and need to be made by the person utilizing the protected work Only work if you are completely honest! Keep a copy Record of fair use decision Can be used as a legal document
67 Fair Use Tools http://www.lib.umn.edu/copyright/fairthoughtsKen Crews’ Fair Use Checklist: use/fair-use-checklist/ ALA Fair Use Evaluator: Thinking Through Fair Use (U of Minnesota)
68 Beware of the Guidelines!Classroom Photocopying Guidelines (1976) Use must be “spontaneous” Brevity… Can use 1 chapter or 10% of a work No more than 250 words from a poem Only 1 chart, picture or diagram from a work Must seek permission for subsequent use Off-Air Recording of Broadcast Programming for Educational Purposes (1981) Fair Use Guidelines for Electronic Reserve Systems (1996) Carry no force of law and provide no safe harbor against infringement!
69 17 U.S.C. § 108 Library Copying for Research & Preservation
70 What it Allows Section 108 allows libraries to make copies of protected works for the purpose of Private study Preservation InterLibrary Loan (ILL) A few requirements: Library must be open to the public Copies are not made for commercial purposes Library does not engage in bulk distribution of copies Each copy includes a copyright notice
71 Making Copies for Patrons’ Private Study
72 Types of Works that can be CopiedLiterary works, including magazines, journals, newspapers, and books Illustrations, pictures, charts, and graphs that accompany literary works Those audiovisual works that deal with the news
73 Types of Works that Cannot be CopiedMusical compositions/scores Most art Most audiovisual works, including movies
74 Making Copies for Private StudyThe copy becomes the property of the user You have no reason to suspect that the patron will be using the copy for any other purpose besides private study Your library displays a copyright warning where requests are submitted (online or on paper) and on the work being provided to the patron After a reasonable investigation the library can conclude that a copy cannot be obtained at a reasonable price (when requesting a substantial portion of the item or a full copy)
75 Making Copies for Preservation Purposes
76 Types of Works that Can be CopiedAny type of material including art, audiovisual works, and musical scores
77 Making Copies for Preservation-Unpublished WorksLibraries can make copies of unpublished works so long as: The item being reproduced is currently part of the collection of their collection The copy is for… Preservation (it is, or is on the verge of falling apart) Security (you don’t want a patron handling the original) Deposit in another library or archive who has an interest in the item
78 Making Copies for Preservation-Published WorksLibraries can make copies of published works so long as: It is being used to replace a damaged, deteriorating, lost, or stolen copy If the work is in a format that has become obsolete which, under the law, means that the technology needed to play or perform the work is no longer manufactured or is not readily available for purchase They conclude that, after performing a reasonable investigation, an unused replacement copy cannot be obtained at a reasonable price
79 Making Copies for Interlibrary Loan
80 Making Copies for Interlibrary LoanWhen you’re lending: the rules are the same as for private study When you’re borrowing: make sure that your practices are not substituting for a subscription to a periodical or purchase of a work CONTU Guidelines, or ‘Rule of 5:’ Up to 5 copies from the most recent 5 years of a journal title- another guideline, not law!
81 Resources Ken Crews’ Copyright Checklist for Libraries: Providing Copies for Private Study 9/10/copyrightchecklist108privatestudy.pdf Ken Crews’ Copyright Checklist for Libraries: Copies for Preservation or Replacement 9/10/copyrightchecklist108preservation.pdf
82 17 U.S.C. § 109 First Sale Doctrine
83 First Sale Doctrine Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
84 Essentially When you own a copyrighted work that is “lawfully made under this title” you can lend, sell, or dispose of it without having to obtain permission from or paying a fee to the rightsholder. This provision allows…. Libraries to lend items Folks to sell copyrighted item at garage sales, on eBay You to donate copyrighted items Remember that owning a copy of a work is not the same as owning the copyright in it!
85 17 U.S.C. § 110(1) Face-to-Face Instruction
86 Face-to-Face TeachingNotwithstanding the provisions of § 106 the following are not infringements of copyright: performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.
87 Basically When you are teaching in a ‘physical’ classroomYou can use whatever you want However you want If you are using an audiovisual work, it’s a lawfully acquired copy
88 What Does ‘Lawfully Acquired’ Mean Here?A copy the instructor purchased A copy owned by the library or borrowed through a legitimate library lending service such as another Prospector or Interlibrary Loan A copy the instructor has borrowed from a colleague A copy the instructor has acquired lawfully for their own personal research (conference materials, etc.)
89 Recommendations Offer patrons the opportunity to suggest purchases!
90 What About Recordings from TV/RadioRecording items from “off air” for educational purposes Consider fair use? Plan on reusing?
91 17 U.S.C. § 121 Special Formats for those with Disabilities
92 For Patrons With DisabilitiesAllows libraries to make copies of previously published, nondramatic literary works in specialized formats (e.g. Braille copy for the blind, an audio recording for the hearing impaired, or digital text for those with visual impairment) for use by those with other disabilities. -and- Allows the transmission of the performance of a nondramatic literary or musical work or display to those whose disabilities prevent their attendance in classrooms, when the performance or display is part of the instructional activities of the university.
93 So Long As… Materials are reproduced or distributed only in a specialized format exclusively for use by persons with disabilities Copies bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement You include a copyright notice identifying the copyright owner and the date of the original publication
94 17 U.S.C. § 1201 Digital Millennium Copyright Act
95 DMCA “Anticircumvention” lawProhibits circumvention of technological measures which protect access to copyrighted works Can include circumventing.. Encryption on a CD or DVD Password protection on a website Technology “locking” a device Also prohibits creation, sharing, and use of products and programs which allow circumvention*
96 Good News Only applies to unauthorized use, so if you are circumventing under the auspices of fair use or any other exception the DMCA does not apply.* -Chamberlain, Inc. V. Skylink Technologies AIME v. UCLA Had legal access to the work in question Technology used (Video Furnace) has uses beyond circumventing technological protections.
97 Beware! If your use is illegal or does not fall under one of the exceptions then additional charges can be filed against you under the DMCA. If you are using illegal software to circumvent DRM then you are violating the DMCA. Your institution may receive DMCA notices; have a plan in place to respond to them.
98 Copyright & Your Library
99 Copyright & Libraries Librarians can’t escape it! Circulating itemsInterLibrary Loan (borrowing and lending) Course reserve services Duplication equipment License agreements for electronic resources Archives Preservation Online access Patrons with disabilities
100 Your Role Be aware of library copyright issuesUnderstand how the law applies to libraries Understand which laws may apply to the situation at hand Have sound copyright policies to guide your use
101 Library Copyright Policies
102 Copyright Policies Having intuitional copyright policies can provide guidance for staff when using copyrighted works Should be written in plain language so that it’s easily understandable Work with your institution’s attorney Update often!
103 Have Policies for.. Library copying for preservation and private studyInterlibraryLoan Use of orphan works-those works for which the rightsholder cannot be identified Licensing mateirals Digitization projects Accepting archival donations
104 Copyright Policies for Making Copies for Preservation & Private StudyReproduction by Libraries and Archives (17 U.S.C § 108) Fair Use (17 U.S.C § 107)
105 Copyright Policies for Interlibrary LoanFirst Sale Doctrine Rule of 5 vs. 17 U.S.C § 108 Make sure you are not signing away your ability to lend through ILL in your license agreements!
106 Copyright Policies for Orphan WorksWorks for which the rightsholder cannot be identified Look to legal exceptions to make use of work Unfortunately no pending legislation regarding orphan works
107 Copyright Policies for Licensing MaterialsIt is critically important that you negotiate license agreements, especially for electronic works. Negotiate, negotiate, negotiate! License will trump rights afforded under the law! Read, negotiate, track.
108 Copyright Policies for Library Digitization ProjectsYou may need to write a new policy for each project!
109 Copyright Policies for Donor Agreements for ArchivesDonations of rare/unique/historical items to your archives can be very exciting Does the person donating the items also own the copyright? If not, who does? If so, are they willing to transfer it to you?
110 Other Library Copyright Issues
111 Film Screenings Any film screening where the public is invited is considered a public performance. As such, you must… Purchase the film with public performance rights. Obtain a license for the screening. Are you charging a fee? Monetary fee vs. food or clothing donation You cannot skip getting a public performance license simply because you are not charging an entrance fee!
112 Story Time This can also be considered a public performanceGenerally, considered to be a fair use Are there kits with puppets, recordings with sound effects, coloring pages, etc. that can be purchased?
113 Copying Equipment Placing a notice regarding copyright on duplication equipment, including printers, photocopiers, scanners, and media duplication equipment can help release your institution from liability. “The copyright law of the United States governs the making of photocopies or other reproductions of copyrighted material. The person using this machine is liable for any infringement.” -Crews, 2013
114 3D Printers Objects created using a 3D printer could infringe on copyright, patent, and trademark law. Have a policy in place to help guide the use of your 3D printer. Warning Notice for 3D Printers es/content/3D%20Printer%20Warning%20Notice% 20for%20Libraries_TLEDITED.pdf
115 Answering Copyright Questions
116 Decision Tree What is the Copyright Status?Is the work is in the public domain? Does the patron own the copyright? Does someone else own the copyright? Is the work licensed under the Creative Commons or Open Access terms? Does the use fall under one of the copyright exemptions? If it does not fall under one of the exemptions, can permission or a license be obtained? Do you have lawfully obtained copy of the work?
117 Copyright Status
118 Works by U.S. Government*Public Domain Works published before 1923 are in the public domain. Use them anyway you like! Always, always give proper attribution! Works by U.S. Government*
119 Patron Owns the CopyrightAnything eligible for copyright protection! Double check if it could be considered a work made for hire For published works, patron must check their publication agreement to ensure they have reuse rights
120 Creative Commons http://creativecommons.org/Not legally in the public domain, but rightsholders have specified certain uses which are allowed without obtaining permission. License Types Attribution Attribution-Share Alike Attribution-No Derivs Attribution/NonCommercial Attribution/NonCommercial-Share Alike Attribution/NonCommercial-No Derivs Can also be used to protect your own works or use by patrons when sharing works they’ve created online! Also consider tools like Flicker and iStock that license the use of images under similar terms.
121 Open Access Works Scholarly works that has been shared with the publicGenerally, can share copies with others so long as you give credit to the original author and publisher Directory of Open Access Journals
122 Copyright Exemptions
123 Exemptions Must consider who is making the use and how IndividualCommercial use Educational use Library use
124 Permissions & Licensing
125 Permission from RightsholderDocumented in writing Securing Permission Contact the rightsholder Request their permission to use the work, providing detailed info on who, what, and how Sample permissions letters are available online: ons/requesting-permission/model-forms/ Forms to obtain permission to use student work can be obtained from the CEI
126 Licensing Copyright Clearance Center http://www.copyright.com/License rights for various uses, including copies, posting online, commercial republication, etc. Permissions fees are involved, often based off the number of pages being used and the number of students in your class You or your department will be responsible for paying these fees
127 Lawfully Acquired Copy
128 Lawfully Acquired Must consider who is making the use and howIndividual Library use Bootlegged = Bad!
129 Making Copies of Works Open Access/Creative Commons WorkWhat is the Copyright Status of the work? Public Domain Work Use in accordance with the license terms Fully Protected by Copyright Can be freely reused Yes Could the use be considered a fair use? No Use a fair use tool to help you make a thoughtful and thorough decisions regarding fair use Can permission be obtained to make copies of the work? Can a license be obtained to use the work? Find an alternate item to use
130 Recommendations Be careful to provide information rather than legal advice! Have quality resources (print, online) available that you can refer patrons/staff to. Have policies in place that dictate the use of library equipment.
131 Copyright Infringement
132 Common MisconceptionsIf it’s on the internet, I can use it however I want! If it’s an educational/personal use I can use anything I want, however I want, right? I’ll never get caught!
133 Consequences of InfringementIf you are found guilty of infringing an authors copyright you could be held liable for Actual damages & profits Statutory Damages Attorneys fees and court costs Also Injunction barring further uses Equipment impounded Jail!
134 Who is Liable? Generally, the person who is committing the infringement It’s also generally supervisors or the institution Contributory infringement Vicarious Liability
135 Questions? Carla Myers Assistant Professor Director of Access Services & Scholarly Communications Campus Copyright Specialist The University of Colorado Springs Kraemer Family Library This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.