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Copyright in Practice-A Participatory Workshop
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Copyright in Practice-A Participatory Workshop

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Copyright presentations often focus on “the rules” without sufficient attention to practical decision-making. Yet because application of the law so often depends on specific facts and circumstances, …

Copyright presentations often focus on “the rules” without sufficient attention to practical decision-making. Yet because application of the law so often depends on specific facts and circumstances, this approach can leave a big gap for actual library practice. This workshop will focus on situations and how to make specific decisions; discussion of the rules and principles of copyright law will, it is hoped, emerge from those applications. Although common situations will be discussed in order to provide a comprehensive look at copyright decision making, participants are encourage to bring real-life problems for the group to consider and discuss.

Presenter:
Kevin Smith
Director of Scholarly Communications, Duke University

As Duke University’s first Director of Copyright & Scholarly Communications, Kevin Smith’s principal role is to teach and advise faculty, administrators and students about copyright, intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. At Duke, Kevin serves on the University’s Intellectual Property Board and Digital Futures Task Force, and he convenes the Open Access Advisory Panel. He is the current Chair of the ACRL’s Research and Scholarly Environment Committee and serves on the SPARC Steering Committee. His highly-regarded web log on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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  • How many of you have similar question about converting VHS formats to DVD?
  • From ALA’s “Business Model Scorecard”
  • Use video examples here.

Transcript

  • 1. Copyright from theoutside inA participatory workshopKevin L. Smith, M.L.S., J.D.Copyright and Scholarly Communications Office,Duke University Libraries
  • 2. What to expect• Scenarios from libraries• Scenarios from teaching• Scenarios you suggest– Speak up– Write them down• Interludes on the lawCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 3. Start with a favorite ? for libraries• We have several VHS tapes which ourCounseling department still assigns forstudents to watch. We have looked forcommercially available copies on DVD, butsome are not available in that format. Ourunderstanding of copyright is that we couldcopy a commercially produced DVD we ownwithout permission, but only for preservation;we would not be able to allow it tocirculate, patrons would have to view it in ourbuilding.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 4. 2 parts to this question• Section 108 – source of their understandingabout copies and digital format• Section 107 – Fair use• Same analysis whether this is for classroomviewing or physical reserve.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 5. Section 108 (c)• Replacement copies of published works– Up to 3 copies– If damaged, deteriorating, lost, stolen or obsolete• Is VHS?– Unused replacement not available at fair price– If digital, “not made available to the public in thatformat outside the premises of the library.”• Premises? The Public?• Could make 2 copies in different formatsCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 6. Bottom line…• § 108 probably permits reformatted copy if– Held on reserve for in-library viewing or for circ. tofaculty or students for classroom viewing– VHS copy is sequestered• § 107 (Fair Use) probably also permits:• Purpose – classroom viewing (§ 110(1))• Nature – creative• Amount – entire film• Market – no impact if digital unavailable and 1-to-1replacementCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 7. Interlude – four distinct provisions• Section 107– Fair Use – broad & flexible• Section 108– Library preservation and ILL– Does not preclude fair use• Section 109– First Sale – permits library lending• Section 110– Allows certain public performancesCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 8. Another library issue• Our Instruction Librarian has been asked tomake a discipline-specific video aboutresearch methods. The video will be includedin an online course. May he use screen-shotsfrom the relevant database in the video?What about if an actual search on thedatabase is filmed or captured?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 9. What do you think?• My analysis– Almost certainly fair use• Transformative• Educational purpose• Informational content• Small parts• No market impact (or positive impact)– Might still be wise to ask permission• Vendor likely very willing• Might have instructional materialsCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 10. Time for comments or questionsCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 11. Interlude – 5 questions for anycopyright problem• Is the work protected by copyright? Or is it inthe public domain?• Is there a license that covers your use?• Is there a specific exception in © that allowsyour use?• Is it fair use?• Who can you ask for permission?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 12. Digitization problem• We want to digitize this work for a collectionavailable to all on the Internet:– "Address given at dedication of the Charlie JonesSoong Memorial building of Fifth AvenueMethodist Church, Wilmington, November 1,1942”– It appeared in “The North Carolina ChristianAdvocate,” which carried no © notice, in 1943.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 13. What do you think?• What is in the public domain?– Works published before 1923.– Works of the US federal gov’ t.– Ideas, facts, short phrases like titles.– Works published between 1923 and 1989 without© notice.• BINGO!– Works published between 1923 & 1963 for whichthe © was not renewed.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 14. Course packs and e-reserves• Is it legal for a professor to have a TAphotocopy a set of readings to distribute tostudents?• Can I place an article obtained through ILL onreserve in the library?• We scanned a book chapter last semester fora professors Blackboard site and now shewants to use it again? That’s illegal, isn’t it?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 15. Course packs and e-reserves• Is it legal for a professor to have a TAphotocopy a set of readings to distribute tostudents? Fair use & course pack cases• Can I place an article obtained through ILL onreserve in the library?• We scanned a book chapter last semester fora professors Blackboard site and now shewants to use it again? That’s illegal, isn’t it?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 16. Course packs and e-reserves• Is it legal for a professor to have a TAphotocopy a set of readings to distribute tostudents? Fair use & course pack cases• Can I place an article obtained through ILL onreserve in the library? First sale• We scanned a book chapter last semester fora professors Blackboard site and now shewants to use it again? That’s illegal, isn’t it?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 17. Course packs and e-reserves• Is it legal for a professor to have a TAphotocopy a set of readings to distribute tostudents? Fair use & course pack cases• Can I place an article obtained through ILL onreserve in the library? First sale• We scanned a book chapter last semester fora professors Blackboard site and now shewants to use it again? That’s illegal, isn’t it?Georgia State CaseCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 18. An interlude on recent cases• Kirtsaeng – reaffirmed first sale regardless ofthe origin of the lawful work.• HathiTrust – Fair use even for massdigitization, based on transformative purpose.• UCLA – Dismissed challenge to streameddigital video. Called fair use argument“plausible.”• Georgia State – Challenge to library e-reserves& faculty use of LMSCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 19. Georgia State case• Trial judge found that 70 of the 75 challengedexcerpts were fair use.• She imposed strict portion limit:– 10% or one chapter, whichever is less.• She rejected rule against fair use forsubsequent uses.• Four factor analysis favored libraries• Case is being appealed.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 20. Advice for E-Reserves• Balance forms of access• For fair use, stick to small portions• Always keep course sites closed• Be creative– Think about what makes your site a uniqueexercise in pedagogy.• Seek permission when a larger excerpt isneeded.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 21. E-Books, Licensing & ILL• Three considerations– Copyright sets default rules– License may override• To “preempt” ©, language must be explicit• “No other use”?• Silence leaves default rules in place– What is technically possible?• TPMs and anti-circumvention lawsCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 22. Scorecard• Inclusion of all titles• Right to transferdelivery platforms• Right to lend contentindefinitely• Integration with catalog• Access for the disabled• Single User?Alternatives?• Number of loans?• Delayed sales and/orVariable pricing?• Remote checkout?• Consortial orInterlibrary loansz?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 23. Licensing Issues• ILL (founded on sections 108 and 109)– Could preserve first sale by closing local access ifebook is loaned.• Archiving & preservation– Needs to be DRM free• Instructional use– Can we license for course adoption• Text Mining?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 24. Language from ScienceDirectThe Interlibrary Loan Policy for electronic journals and books is included in each publicly funded institutionalScienceDirect subscription agreement. In short, the provision allows and provides for the use of electronicjournal articles and book chapters as a source for the fulfillment of Interlibrary Loan (ILL) requests with somestipulations.Interlibrary Loan ConditionsThis grant applies only to journals and books published by Elsevier. Other publishers may have differentconditions or may not permit interlibrary loans. Elsevier grants the subscriber the right to use articles and bookchapters from subscribed content in the case of ScienceDirect as source material for interlibrary loans subjectto the following conditions:• The ILL request comes from an academic or other non-commercial, non-corporate research library located inthe same country as the subscriber.• The requested article or book chapter is printed by the subscriber mailed, faxed or transmitted by Ariel (or asimilar ILL system) to the requesting library. For libraries in the U.S. complying with the CONTU guidelines, it isnot necessary to first print the article or book chapter and then scan it for electronic transmission.A Note on National BoundariesInterlibrary loan, and the legal basis for such activities, may vary from country to country. As an internationalpublisher, Elsevier has worked hard to establish an international level playing field, where all libraries canprovide documents to libraries on the same terms and conditions. Those terms are intended to supportdomestic ILL. They are also intended to rein in those libraries who have abused ILL and provide what is moreaccurately described as document delivery to anyone anywhere in the world in the name of ILL.In the US, ILL operates within the CONTU guidelines, which provide a balance between free ILL and paymentsto publishers. The responsibility for adhering to CONTU rests with the requesting, not the fulfilling, library.Requesting libraries located outside of the US are not part of the CONTU agreement and have no restriction onthe number of copies requested on a free (no royalty) basis. That is not a level playing field.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 25. Get started with a fun (and real)questionCopyright and Scholarly CommunicationsOffice, Duke University LibrariesIm a faculty member and Im doing a lecture onhow to write grants for our faculty developmentprogram. They record and post these lectureson the universitys public website. On my slidesI have different photos ofMr. Potatohead here andthere and am concernedabout whether Hasbrocould sue us if I includethem.
  • 26. What do you think?• Is this fair use?– How are they used? Just illustrations, or are theydiscussed?• Other issues?– Trademark.• Standard is likelihood of confusion– License• If obtained from Hasbro site, may be licensing termsCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 27. Video for teaching• Professor wants to post link to YouTube videoin Blackboard for students to watch. Video isa Monty Python skit. Is this legal?– Linking does not infringe any of the exclusiverights of ©.– Legality of copy probably doesn’t matter.– Issue of reliability• Can we download?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 28. Video for teaching• Professor wants to show a clip from a popularfilm that is on YouTube in class. I know shecan show a DVD that we own in class, butwhat about something like this?– Section 110(1) allows public performance for face-to-face teaching.– Unless video was not lawfully made and professorhad reason to know that.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 29. Video for teaching• Professor wants to make a DVD of film clips forclass. Is this OK?– She also want to use them for her online versionof the same class. Is it the same?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 30. Video for teaching• Professor wants to make a DVD of film clips forclass. Is this OK? Yes.– She also want to use them for her online versionof the same class. Is it the same? No, but still OK• Fair use• Anti-circumvention & exception• TEACH Act (§ 110(2))Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 31. Video for teaching• A professor wants to show a video in class thatthe university does not own.– Can she use a DVD borrowed from Netflix?– Can she show a stream from Netflix from herpersonal account?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 32. Video beyond the classroom• A speaker in our chapel wants to show a shortclip from a popular movie as part of hissermon.– Is it OK to show the clip?– Our chapel services are recorded. Is it still OK?– What if we put the recorded service on our website?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 33. Streamed video “reserves”• Can we digitize DVDs and stream the filmsthrough Sakai so students in a specific classcan watch an assigned film on their own time?– Interplay of sections 110(1), 110(2) and 107Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 34. Interlude -- Fair use• Most flexible, least certain, exception– We use it every day!!• Based on four factor analysis– Purpose of use, nature of original, amountused, impact on market for original• For last 20 years, courts have looked most atwhether use is “transformativeCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 35. Transformative fair use• Transform the original itself, or put to a whollynew purpose– Bill Graham Archives– Turnitin• Issue of market substitution.• 3 questions to ask– Does it help me make my point?– Will it help my readers/viewers get the point?– Have I use no more than needed to make the point?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 36. Fair use problems• Student made a video for class and wants touse a popular song as the “soundtrack.”• Faculty member is writing a book aboutmovies and wants to use film stills to illustrateher discussion.• Library has created an exhibit of early 20thcentury magazine illustrations related to theDreyfuss affair and wants to put some up in anonline version.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 37. Interlude -- Owning copyright• Since 1989, copyright is automatic• Owned by the “author”– Author may be employer– Authorship often shared– Interplay between law and campus policyCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 38. Work made for hire• If a work is “made for hire,” law says employerIS the author.– Person for created work has no © claim• 2 types of WMFH– Created by regular employee in scope of heremployment– Created by independent contractor• Fits in defined categories & has explicit agreement• $$$ is not enough to create WMFHCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 39. Submitted scenarioWe are accepting video resources from a large, multi-organization NSF grant. The NSF grant is with each individualinstitution, not with the principal investigator (this is criticalwhen money is involved because the university is ultimatelyaccountable for expending the money and faculty frequentlymove on. When that happens, a new P.I. is generallyappointed by the university). The NSF encourages openaccess to resource works but is not clear about who owns thecopyright. We are trying to determine who owns thecopyright for each institution. Is it the institution, since theycontracted with the NSF, the individual faculty member (whomay move on in the middle of the grant), or??? Mostuniversity copyright policies reference published work orpatentable concepts but not research products.Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 40. Joint authorship• Each author must contribute protectableexpression• Each “joint author” holds an equal share inthe ©.– Regardless of the size of the contribution• Each joint author may exercise the exclusiverights without getting permission from theothers!Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 41. Ownership scenario (1)• A professor created a online course for ourschool. Now she has left to teach at anotheruniversity. We still want to use some of hermodules in a course we continue to offer. Shesays we cannot, and that she will be offeringthe same course, with the same content, forher new employer.– What’s the solution?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 42. Ownership scenario (2)• A graduate student has written an article thathas just been published by an importantjournal in his field. Yeah! But now he wants touse the article verbatim as a chapter in hisdissertation.– Can he do this?Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 43. Ownership scenario (3)• The library hired a graphic designer to create alogo for our library that we want to use on ourweb page and all our library publications. Ournew director would like to make a smallmodification to the logo, but the designerssays we cannot do that without herpermission.– The logo is ours, right? We don’t need no stinkin’permission!Copyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 44. Interlude on policy• Think in terms of both ownership andinterests– Who needs to use the works? Can you createlicenses?• Matrix of different creators, types of work, and userinterests.• Don’t confuse policy with– Law– Guidelines– Best PracticesCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 45. Miscellany – a digitization strategy• Remember that you are creating a new(transformative?) context for the individualitems.• Four prong strategy– Consider what might be in the public domain– Seek selected permissions for key materials– Remember & rely on fair use– Have a “talk to” policyCopyright and Scholarly CommunicationsOffice, Duke University Libraries
  • 46. Miscellany – liability in the library• We have a new scanner in the library, and Ikeep seeing students scanning whole books.When I do I should tell them stop, right?– Can you be sure work is not PD and scan is not fairuse?– Remember §108(f)(1) 0n library liability• Generally, recall that library employees lessliable than others when they make good faithfair use decisions (§ 504 (c)(2))Copyright and Scholarly CommunicationsOffice, Duke University Libraries