Owning copyright and using copyrighted works (November 14, 2012)

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Concerned about copyright issues? Uncertain about how you can use images in your instruction? Want to be sure you’re following the law and doing everything you can to support your patrons? Kevin Smith, Duke’s Director of Copyright and Scholarly Communication and William Cross, NCSU’s Director of the Copyright and Digital Scholarship Center, will lead a discussion about copyright basics, the rules of ownership, and best practices for academic use.

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Owning copyright and using copyrighted works (November 14, 2012)

  1. 1. OWNING © AND USING© WORKSKevin L. Smith, Duke UniversityWilliam M. Cross, NC State University
  2. 2. Start with ownership.
  3. 3. How do you get ©?• © is automatic • No need for registration, renewal or even © symbol. • © vests as soon as original expression is fixed in tangible form. • Most be original, but standard is very low. • Text, images, film, software, architecture, choreography & sculpture all protected. • Ideas, “useful” articles not protected by ©.
  4. 4. Who owns ©?• It’s good to be an author: • “Copyright… vests initially in the author or authors of the work” • Able to transfer or license the rights
  5. 5. Joint ownership• “The authors of a joint work are co-owners of © in the work.” • Co-owners have an equal & undivided share in the bundle of rights. • Lots of opportunity for conflict!
  6. 6. Work made for hire• If a work is “made for hire” the employer is considered the author. • Two ways: • Created by a “regular employee.” • Created by an independent contractor
  7. 7. What do you get?• Six exclusive rights: • Reproduction • Distribution • Public performance • Public display • Right to prepare derivative works • Right to control digital transmission of a sound recording.
  8. 8. About those rights• It is a bundle • Can be divided up to be sold or licensed • Assignment v. license• The rights are limited • By time – copyright ends • By scope – each right subject to exceptions • All are subject to fair use.
  9. 9. Using ©“If I have seen further it is by standing on the shoulders of giants.” - Robert Merton (1965) and - Isaac Newton (1676) and - Bernard of Chartres (1159) and . . .
  10. 10. Specific Exceptions: Instruction17 U.S.C. 110(1): not a violation of copyright . . . Perform or display A legal copy“performance or display of a work by instructors or pupils inthe course of part of classroom*teaching activities of a nonprofit As face-to-face instructioneducational institution, in a classroom or similar placedevoted to instruction . . . ”
  11. 11. Specific Exceptions: Library Copying Copies for Users and ILL Preservation Unpublished works • In the library’s collection• “Private study and • For preservation or security research” Published works• Becomes property of • “damaged, deteriorating, users lost, or stolen or format is obsolete” • “reasonable investigation”• Copyright notice and unused replacement not available at a “fair price”
  12. 12. Fair Use• A general exception to copyright monopoly• “Fair use is for everybody”• “An exception where the value you add to society outweighs the harm done to the rightsholder.”
  13. 13. That Sounds Kind of Vague . . . Four Factors (not a checklist or vote)1. What are you doing?2. What are you using?3. How much are you using?4. Is your work a substitute for the original?
  14. 14. Purpose and Character Educational For/Non-profit• Does your use serve • Are you making money off society, or just your own of someone else’s work? interests?
  15. 15. Nature of the Original Private or Public? Fact or Fiction?Is it already widely- Can anybody see it (like aavailable (like a newspaper tree)article) oror only the imagination of the author (like Emilylocked away (like a diary) Dickenson’s “poem lovely as a tree”)
  16. 16. Amount and Substantiality• Less is better but . . .• Not just how much but how much do you need for your good purpose?• Example: for a book review 1-2 sentences may do, but for art critique you may need the entire image
  17. 17. A Substitute for the Original?• “Market harm” but more about substitution vs. new contribution• Are you just free-riding or moving the conversation forward?
  18. 18. Putting It All Together:Transformative Use• The trend in modern judicial analysis• Synthesizes all four factors• Does your use recontextualize and add value?• Examples: • commentary and critique as with parody • Thumbnails to organize images and aid in finding
  19. 19. Example: E-Res @ GSU Purpose and Character: strongly favors nonprofit, educational use Nature of Original: favors use of non-fiction Amount & Substantiality: favors use of 10%/one chapter Market Harm: favors user unless “readilyavailable” at a “reasonable” price in a “convenient” format
  20. 20. Tools: Code of Best Practices
  21. 21. Questions ?
  22. 22. Coming December 5 at 2pm! “Recent Developments in Library ©” • New cases! • New rules! • More powerpoint!
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