Good afternoon, and welcome to our workshop, Copyright Laws and Public Domain and Open Access, Oh My (said to the tune of “lions & tigers & bears, oh my”, haha). Our goal is to promote the use of public domain and open access resources, but let’s begin with a brief overview of copyright laws that apply to other, maybe more commonly used, materials. We have a handout going around that includes all of the websites and resources that we discuss, so make sure you get a copy of that.
Even if you don’t really know what the copyright laws say, I’m sure you realize that copyright laws affect how you can legally use materials in teaching, performances, publishing, and other creative pursuits. Many of you have probably wondered about the rules governing making copies of an article – if your department budget allows you to make that many copies, can you legally make copies of an article for your entire class? What about sending it out as an email attachment two days before the class in which you want to discuss the article? What about showing a video – are there special rules for showing a movie in class? What about outside of class for club meetings? And what about having your students perform materials, whether a short play or a piece of music? So let’s take a look at what the law says…
Here is the text of Section 106 of the copyright law, outlining what privileges the copyright holder has. Lots of text, lots of legalese, not exactly fun reading material.
So, to put that more clearly: First, the beginning clause, “Subject to sections 107 through 122” refers to more sections of law, most of which are longer than 106, which outline exceptions to the rule. Most important for you are the fair use exemption, which allows you to reproduce copyrighted works “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” within certain limitations (Section 107), and section 110, which gives you even more leeway in using materials “in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction.” Our colleagues cover those areas of copyright law in more depth in another workshop. For our purposes, we want you to understand that there are some exemptions, but when your use does not fit those exemptions, you must get permission or purchase a license to copy, distribute, create derivative works, or publicly perform copyrighted works.
So how does this apply to your teaching activities? Copyright laws limit the way you use and distribute articles. The Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals allows you to make copies for classroom use or discussion, subject to the conditions of spontaneity, brevity, and cumulative effect (US Copyright Office Circular 21: Reproduction of Copyrighted Works by Educators and Librarians). Spontaneity means that there is not enough time between when you decided to use the article and the date when you want to use it to reasonably expect a response to a request for permission. With the spread of electronic communication, that knocks most of your uses out of contention anyway, assuming your department’s budget allows you to make that many copies! So, generally, you need to use library reserves, E-Reserves, or link to the article in a subscribed database. That way, you are simply making the material available, and your students are each making their own copies. It’s a technicality that, in many cases, doesn’t really seem to make much difference in the net effect – ideally each student gets his and her own copy either way – but it is a technicality that keeps you within the law. Of course, this adds an extra step for the students – realistically, additional steps often mean that fewer of our undergraduate students actually get the article. Another way that copyright laws may affect your use of articles deals with articles you have published. For a long time, it has been common for authors to give their copyright rights to the journal that is publishing their article in exchange for being published in that prestigious journal. All of a sudden, it doesn’t matter that you wrote it, all of the restrictions placed on copyrighted pieces also apply to your article. You lose the right to post the pdf to your website, forward copies via email, or otherwise distribute it. Please attend our workshop on copyright and publishing for more information about this angle.
Now let’s shift gears to the use of music and videos… You may play music or show videos in class for instruction, but it gets complicated if you want to post them online for students to review later. Depending on your subject area, this may or may not be problematic. When I taught General Anthropology, I used a lot of videos streaming online from National Geographic and PBS… So I could simply post a link and the students could go review it for themselves. But we don’t all have it that easy! And, if you want to use these materials for public performances, you’ll need to get permission or pay for a license. That includes showing a movie for entertainment rather than instruction and using a movie or video at an event that is open to the public. These requirements also apply to having students perform a work for the public, whether you teach music and your students want to perform a popular piano piece or whether your students want to perform a scene from a popular movie at a departmental get-together. As I mentioned before, these are just brief overviews. Please attend one of the sessions addressing more specifically the copyright laws dealing with these topics to get a better understanding of how you may use copyrighted materials. Today we are focusing on some types of material that can help you avoid the legal hurdles that sometimes come with using copyrighted materials.
First of all, I would like to introduce you to the public domain. The public domain includes several categories of items, and it refers to things that are not protected by copyright laws. First, we have items that are not eligible for copyright protection in the first place. -- Basic facts – the sky is blue, or the population of our city – are not eligible for copyright protection. A certain arrangement of facts may be copyrighted, but the basic facts themselves are not copyrighted. - Likewise, things like recipes, in their raw form, can’t be copyrighted. The arrangement and embellishments in describing how to compose the ingredients can be copyrighted, but the basic facts of the required ingredients can’t be copyrighted. -- Ideas also cannot be copyrighted. Copyright applies to “works that are fixed in a tangible medium of expression” (Butler p. 4, citing Bruwelheide, 1995, 4). Until it’s written down or otherwise recorded, it can’t be copyrighted. -- General themes, settings, plots, and characters of fictional works, as well as the research data, quotations, and unoriginal organization of nonfiction works are also not covered by copyright. -- Governmental publications, including laws and court decisions, state reports, and so on are also not copyrighted. (Citation – Week 2 lecture)
Secondly, the public domain includes items for which copyright protection has expired. When this occurs depends on the type of material and when it was originally published, since the laws have changed over the years. Third, the public domain includes works that are donated to the public domain by their creator.
When your area of scholarship and teaching allows it, some of the benefits of using works from the public domain are that you can copy freely. You may print copies for your class, post the article directly to blackboard, or even send it out as email attachments without fear of violating copyright. We’ll talk later about Open Access, which also enables free distribution of copies without having to pay or get permission. You may also use public domain works for public performances without needing to get permission or pay for a license.
You can also create derivative works based on public domain materials. Some examples of derivative works – many of which have value in education – are listed here. A movie based on a play or a novel is one type of derivative work that we’re all familiar with. Those of you in fine arts may use photographs as inspiration for creating drawings or sculptures. But if your art student does a drawing based on a copyrighted photograph from a popular magazine, she would need to get permission from the copyright holder to enter that drawing into a public gallery showing or otherwise use it outside of the classroom setting, unless she altered it enough to make it her own work. How much is “enough” is subject to debate, but if she did the drawing to practice getting an accurate portrayal of an image, it’s likely not different enough. Likewise, creating a new arrangement of pre-existing sheet music or “sampling” a reference to a well known song can be a useful educational activity. (Examples of derivative works from Copyright Office Circular 14: Copyright Registration for Derivative Works, http://www.copyright.gov/circs/circ14.pdf)
At this point, some people tend to confuse the creation of derivative works or unlimited copying with plagiarism. Copyright violations and plagiarism sometimes go hand-in-hand, but they are very distinct acts. Plagiarism involves taking credit for something you didn’t create. It is a failure to cite one’s source, whether by accidental or intentional omission. Copyright violations deal specifically with the privileges outlined in section 106 of the copyright law, whether or not you cited your source. These could combine in several different ways: - One may violate copyright without plagiarizing by forwarding an article in pdf format to their whole department. Or, to go for a high publicity example, the kids who have been caught and sued for file-sharing a bunch of mp3s were not claiming to have performed those songs – they violated copyright but weren’t plagiarising. One may plagiarize without violating copyright by using a small passage (small enough to be considered “fair use”) and claiming it as their own writing. One may violate copyright and plagiarize by translating a work from Romanian to English – creating a derivative work – and claiming it was his own creation, not just his own translation of John Doe’s work.
So, you’re all on board and going to go right out to find some public domain materials as soon as this workshop is over, right? (haha) But wait! How do you know whether something is in the public domain? First, refer back to those categories of stuff that can’t be copyrighted, which we covered a few slides ago. Ideas, facts, general plots, literary themes, government documents, etc. are all in the public domain. So, Poli-Sci professors, go have fun at the Government Printing Office website!
For items that are eligible for copyright, determine whether the copyright term has expired. This is sometimes easier said than done… For books, if it was published before 1923, it is in the public domain. If it was published WITH NOTICE between 1923 and 1963, then it had an original term of 28 years, but may have been renewed for another 67 years of protection. So if it was published with notice in 1924 and it was renewed, it will enter the public domain in 2019. If it was published during those years but did not include a copyright notice, then it is in the public domain. If it was not renewed, then it is in the public domain. You can do a quick search for renewal information since 1978 at this website, which is included on your handouts. Unfortunately, if it was originally published before 1950, you would have to check the print records from the copyright office, since none of the registrations or renewals from before 1978 are in the online database. Luckily, Google Books has digitized some of these records – so if you have questions about an item, stop by my office and I’ll see if the records from that year are posted online. I can’t provide legal advice, but I can help you find resources! * Note on renewal term – we learned that the original legislation allowed a 47 year renewal, that has since been extended by 20 years, but we are assuming that the audience will only want to know the term that applies in effect now.
Continuing on with copyright terms… If the work was published with notice between 1964 and 1977, then it got the original 28 years of protection, but the 67 year renewal was applied automatically. So those are effectively protected for 95 years from the date of publication. Again, if it was published without copyright notice, it is in the public domain. And, 1978 changes the game a bit. Several changes have been made that were made effective as of 1978. Copyright protection applies from the date that a creation is fixed in a tangible medium. Before, it applied from the time of publication with notice. The requirement of copyright notice has gone out the window as well.* In effect, for texts created by an individual or individuals, they are protected for life plus 70 years.** In cases of multiple authors, that is calculated based on the longest-living author. If the author is anonymous or the text is considered to have corporate authorship – documents published by Monsanto referring to company policy, for example – then it is covered for either 95 years from publication or 120 years from creation, whichever is shorter. There are a couple of other cases of items created before 1978 but not published, or created before 1978 but published later, but I don’t want to overload you all with dates. On your handouts, there is a web address for Lolly Gassaway’s “When US works pass into the public domain.” Her chart is an easy to navigate resource that should make it easy to see whether your item is likely still under copyright or no longer protected. Different terms apply to other mediums, but again, I don’t want to overload you here. * The requirement of a copyright notice was eliminated by the 1988 Berne Convention Implementation Act. However, the lecture, the Copyright Office’s Circular 15a: Duration of Copyright, and Gassaway’s chart all discuss copyright terms from 1978 onward without reference to requiring a copyright notice. ** The 1976 Copyright Act used a term of life plus 50 years, but that was amended by the 1998 Sonny Bono Copyright Term Extension Act (CTEA), making it life plus 70 years.
OK, so back to other ways you can tell if something is in the public domain! A notation on the work that the creator has put it in the public domain is a clear indicator. Next we will address Open Content and Open Access works, for which the author has willingly given up some or all of their copyright privileges. One final note about determining public domain – being on the internet does not make something in the public domain! I am assuming that you all know that, but I have to include that!
-Open content can be blurry, partly because there is no legislation defining it. It’s definition is dependant upon its users, which can lead to unclear usage restrictions. Always make sure you try to locate a license or creator statement for an open content work so you know what their wishes are regarding their creation. -Open content is different from creative commons - open content can usually be copied and changed by anyone, while creative commons can have more restrictions -Wikipedia is the largest open content project - anyone can modify or copy the content.
-The 4Rs give any user the rights that US copyright generally restricts - by US copyright law, only the copyright holder of a work may copy, distribute, perform, display, or create derivative works. Open content licenses get rid of those exclusive rights and generally state that any person can do any of those things to an original work. -Reuse - gives the right to a user to reuse the content in it’s original form, like making a backup copy -Revise - gives the right to change the content, like a translation -Remix - gives the right to combine original content with other content to create a new work -revise and remix are basically the same as creating a derivative work -Redistribute - gives the right to give out copies to others
OA refers to the idea that one can have unrestricted access to different publications. These items may not be republished without permission, usually. The Budapest Open Access Initiative defines Open Access as “having no financial or other barrier other than access to the internet itself.” This means that anyone with an internet connection can access the article. It was created particularly to avoid the large fees paid for journal subscriptions and to encourage more research and collaboration. OA journals can be fee-based, where an author contributes a fee (either out of pocket or from grant money), or no-fee journals. Creative Commons is not the same as OA. We’ll talk more about CC in a minute.
Open Access is becoming more and more popular. The large number of organizations and individuals who have committed themselves to OA publishing is astounding.
OA movement has roots in 1940s ideas of open data - common data shared by all researchers. However, it still wasn’t really viable until the advent of the electronic age and the world wide web One of the main concerns is that articles will no longer be peer-reviewed. This is not true. For example, PLoS has set up a peer-review system. Self-Archiving can be through an institutional depository, like the University of Missuori’s ( https://mospace.umsystem.edu/xmlui/ ) OR a general depository like PubMed. OA journals still must make these publications available for free online Not many other institutions have followed in MIT’s footsteps, but more and more scholars are embracing open access publishing, especially as journal prices rise
Creative Commons is an actual non-profit corporation founded by Lawrence Lessig, but their name is somewhat synonymous with sharing of resources The ultimate purpose of Creative Commons is to promote the sharing and building upon of works with others, even though it can be more restrictive than other Open Content organizations since you must use one of six licenses License conditions: -Attribution by (required): lets others copy, distribute, display, and perform a copyrighted work and derivative works, but only if credit is given to creator -Share Alike: allows others to to distribute derivative works, but only under a license that is identical to the one for the original work -Non-Commercial: lets others copy, distribute, display, and perform a copyrighted work and derivative works, but only for non-commercial purposes -No Derivative works: lets others copy, distribute, display, and perform only verbatim copies of a work, but can’t creative derivative works based on it So if you want a picture of bananas, you can search on Creative Commons website, which searches through works on Google (images and web), Flickr (pictures), blip.tv (video), jamendo (music), SpinXpress (media), and Wikimedia Commons (media)
These are the six licenses possible under Creative Commons. They are the different combinations of the license options. CC refers to items, such as pictures or movies, that can be used in other works. Each contributor to Creative Commons states their regulations regarding their own work, but usually one must cite the work and usually one cannot create a derivative work. For instance, in a picture someone took of the Chicago skyline, you might not be able to use a photo-editing program to alter its appearance, then use it within your own presentation.
If you publish OA works, then it’s likely there will be increased distribution, which will lead to more recognition and citations. However, this can also lead to less control over your work. The more people that have access to your work, the more people can plagiarize without your knowledge. You are able to publish and dictate which rights you want - if you don’t want someone to creative derivative works, you can state that. However, since the rules aren’t quite as strict, violations might be harder to enforce. Finally, it is usually free (after the cost of an internet connection and computer) to obtain others’ publications. However, this also means that someone has to fund the initial publication - usually the author or the author’s institution.
Copyright Laws and Public Domain and Open Access, Oh My! Angela Pashia Gretchen Neidhardt
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
to reproduce the copyrighted work in copies or phonorecords;
to prepare derivative works based upon the copyrighted work;
to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly ;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly ; and
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
(Section 106 of US Copyright Law, http://www.copyright.gov/title17/92chap1.html#106)
Creative Commons (CC) is a company through which creators can license their works
A creator can choose to use any of the six listed combination or these rights, but they must ask for attribution
CC license conditions:
No Derivative Works
Can search for works on Creative Commons site
Creative Commons License Options License Abbreviation Logo Attribution cc by Attribution Share Alike cc by-sa Attribution No Derivatives cc by-nd Attribution Non-Commercial cc by-nc Attribution Non-Commercial Share Alike cc by-nc-sa Attribution Non-Commercial No Derivatives cc by-nc-nd