The Constitution is giving Congress the right to create laws that encourage progress/knowledge by rewarding authors for writing and making things. So, what laws did Congress make, and what are the rewards for writing/making things?
Congress enacted the Copyright Act. The rewards for authors are set forth in Section 106 of Copyright Act, which grants copyright owner six main groups of exclusive rights for the length of their copyright.
You will sometimes hear these referred to as the “bundle” of rights that copyright creates.
In this photo, this was a street performance I attended. The performance is not protected by copyright, if they didn’t write down the choreography steps, or videotape it. However, the photo I took of the performance is protected by copyright.
Has to be authored by human – monkey selfie
No exhaustive list of types of protectable works.
Works by the U.S. (federal) government generally excluded from copyright protection, even though they are likely to fall within one of the categories listed before. (17 U.S.C. § 105)
Works whose copyright term/duration has expired
Fair use exception is intended to help encourage/protect criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research
In an academic context, they typically look at the first and fourth factors: Purpose/character of the use (for which they ask, is it transformative) and effect upon market for original.
The TEACH Act of 2002 expanded certain statutory exemptions of copyright law to accommodate distance education. Much like the fair use exception (set forth in 17 USC § 107), the TEACH Act (codified in 17 USC §§ 110(2), et seq.) thus provides another means under which the copyrighted work, itself, rather than a link, can be uploaded to bCourses without first seeking the copyright holder's permission.
In many cases, 17 USC § 107 (fair use) may provide a broader exception under which to post desired course content than the TEACH Act. Nevertheless, it is important to understand what the TEACH Act can cover: Performance of an entire nondramatic literary or musical work (such as the recorded reading of a poem or novel) Performance of a limited and reasonable portion of any other work (such as a scene from a film) Display of any work in an amount comparable to what would be used during a physical class setting (such as the portion of a film you would show in class, or the portion of a book chapter students would be asked to read in class)
To rely on the TEACH Act to post the above materials, the following parameters must be satisfied: The instructor supervises students' use of the materials The material is integral to the class session The material is directly related to and of material assistance to teaching course content The material is provided as a "mediated instructional activity" (i.e. provide the same type of material an instructor would use as part of a live classroom session) The materials are accessible and and retained only for the length of a "class session" The materials are not marketed as part of online instructional activities (i.e. they are not commercially-available digital educational materials) The materials were not unlawfully copied (i.e. the instructor did not "know or have reason to believe" that they were not lawfully made and acquired)
Online guide to the Workflow provides assistance to instructors to help them answer each of those four questions.
Ask the author or publisher: Could be as simple as e-mailing the professor/author who wrote it and asking her/him if you can use
Copyright is directly infringed when: A person who is not the owner of copyright With access to the copyrighted work Violates any of the exclusive rights In a material and substantial manner Beyond what is permitted by the statutory exemptions Without the permission of the copyright owner
Indirect Infringement: In addition to direct infringement, one can also indirectly infringe copyright. There are two types of indirect infringement: contributory infringement and vicarious liablity
Criminal liability (17 USC § 506): Willful copyright infringement can also be a criminal violation, punishable by jail time lasting up to ten years (for repeat offenders) and fines ranging to $250,000 for an individual or $500,000 for an organization (18 USC § 2310)
See: Corporate Counsel Guide to Copyright Law §2:23
The Copyright Act was amended to subject states to liability for copyright infringement – they were otherwise immune under the 11th Amendment. However, at least three courts –including within the 9th Cir, which is CA, have found that the changed language does not constitute a valid abrogration of state sovereign immunity and is therefore unconstitutional. E.g. Marketing Information Masters, Inc. v. Board of Trustees of Cal. State University, 552 F. Supp. 2d 1088 (S.D. Cal. 2008).
So, we have a lower court ruling saying that 17 USC § 511 is unconstitutional to the extent it tries to subject states & state employees acting in official capacity to copyright infringement suits; but, the Supreme Court has actually not weighed in on states’ sovereign immunity yet. Scholars speculate that there is some possibility that the Supreme Court might consider the scope of 11th Amendment sovereign immunity
Actual damages Also called compensatory damages, this consists of the dollar amount of any demonstrable loss the owner suffered as a result of the infringing activity. This loss may be from lost sales, lost licensing revenue, or any other provable financial loss directly attributable to the infringement.
08.09.16 Copyright Compliance Training for bCourses
Training for bCourses
Rachael G. Samberg
Scholarly Communication Officer
Best Practices, Not Legal Advice
Information presented here is
intended for informational
purposes only, and should not
be construed as legal advice.
What is copyright
What is protected / not protected
Using copyrighted materials in course websites
When permission must be sought
Exceptions to needing permission
Easy workflow for using / uploading potentially copyrighted materials
Getting permission when needed
U.S. Constitution Art. I, § 8: Congress shall have the power…
“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.”
• So, goal is to encourage
progress/knowledge by rewarding
authors for writing and making things
• What are the rewards?
Copyright Confers Exclusive Rights for
Limited Period of Time
Preparation of derivative
works (such as adaptations)
Public performance of sound
recordings via digital audio
Duration of Copyright
Length of protection varies,
Type of work
Who was author
When first published
In general, expect that
it is at least author’s life
+ 70 years from date of
This means that within that “protected” time period,
the author’s permission would be needed to
reproduce, display, perform, etc. the work
What Can Be Protected
Protects expressions, not ideas
Work must be authored,
original, and fixed
What Can Be Protected
The Copyright Act (in 17 USC § 102)
offers these examples:
Musical works (+ accompanying
Dramatic works (+ accompanying
Choreographic works & pantomimes
Pictorial, graphic, & sculptural works
Motion pictures and other AV works
Copyright & the Underlying Work
Rights in copyright are
separate from ownership of
the underlying physical work.
For instance, if you buy a book,
you can’t make a bunch of
copies of the book for
everyone in your class
Instead, copyright is retained
by one or more of the author,
Works in Public Domain Not Protected
Works by U.S. Federal
Works whose copyright
term/duration has expired
A statutory exemption allows
individuals to undertake one of the
exclusive rights of copyright:
Without obtaining the permission
of the copyright owner;
and without the payment of any
Statutory Exemption: Fair Use (17 USC § 107)
1. Purpose and character of the use
(i.e. use for commercial purposes less likely to be fair than
use for nonprofit educational purposes; question of
whether use is “transformative” has recently dominated
this factor’s analysis)
2. Nature of the copyrighted work
(i.e. more likely to be fair if you’re using factual/scholarly
work rather than highly creative work)
3. Amount and substantiality
(i.e. size & importance of portion used in relation to whole)
4. Effect of use upon potential market
(i.e. less likely to be fair if use serves as substitute for
Is use fair?
All four factors must be
evaluated by instructor
There is no statutory 10% rule
Always fair to link, rather than
post a copy
Other Statutory Exemptions: TEACH ACT
Section 110 of the Copyright Act allows display and
performance of copyrighted works during the course
of face-to-face teaching in a classroom in nonprofit
Does not permit reproduction of copies for in-class use;
just display & performance (i.e. showing copy on screen)
Section 110(2) permits same activities asynchronously
(e.g. on course-restricted sites); however, limited to:
Performance of an entire nondramatic literary or musical
work (such as the recorded reading of a poem or novel)
Performance of a limited and reasonable portion of any
other work (such as a scene from a film)
Display of any work in amount comparable to what would
be used during physical class setting (such as the portion
of a film you would show in class, or the portion of a book
chapter students would be asked to read in class)
Copyright gives copyright owners exclusive
right to undertake six types of rights for a
designated period of time.
Permission must be sought to undertake any
of those six rights if copyright exists and has
However, no need to seek permission if
intended use falls under statutory exemptions
(e.g. Fair Use or TEACH Act).
Nor is permission needed if you link to the
content, rather than copy/reproduce/post the
actual content, itself.
What to do with this info?
The Copyright Workflow for Posting to bCourses
Instructors are responsible for making copyright determinations
If instructors seek admins’ support in uploading materials, they should
communicate their copyright determination to admins
Library can help point to, discuss, and explain guidelines and options
Workflow Based On UC Copyright Policy
If Instructor’s answer to any question is “yes”: If Instructor’s answer to all questions is “no,” two options:
Material can be
to bCourse site
(though link always
Post link to
If link can’t be
Copyright Workflow for Posting to bCourses
Instructor Makes Decision About Content to Be Posted.
1. Has permission or a license already been conferred?
2. Is the material in the public domain?
3. Is it fair use?
4. Is use subject to another exception (e.g. Teach Act)?
Is the workflow answer “yes”?
Library’s guide can help instructors answer the workflow questions
Links to Articles, Books, Video, etc.
If workflow answer is “no,”
Get Permission or a License
Ask the author or publisher
Preserve the correspondence
Use a commercial service to secure a license
Will be for length of class, probably also # of students, etc.
E.g. Copyright Clearance Center
Possible Consequences (“Remedies”)
Grant of an injunction
Impounding and/or destruction of infringing articles
Award of damages and profits
Award of costs and attorney’s fees
Limitations on Remedies Against State Institutions
State/tribal gov’ts, and component units such as state university,
immune from suit for monetary damages (sovereign immunity).
See, e.g., Marketing Info. Masters, Inc. v. Board of Trustees of the Cal State University, 552 F. Supp. 2d 1088 (S.D.
Cal. 2008); Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000).
However, these entities can potentially be sued for injunctive relief to
prevent future infringement.
See, e.g., NABP v. Board of Regents of U. Georgia, 633 F.3d 1297 (11th Cir. 2011); Ex Parte Young, 209 U.S. 123 (1908).
Limitations on Remedies:
State Institution Employees Acting in Official Capacity
An action for injunctive relief may be brought against state employees
acting in their official capacity.
See, e.g., NABP v. Board of Regents of U. Georgia, 633 F.3d 1297 (11th Cir. 2011); Ex Parte Young, 209 U.S. 123
(1908); Cambridge University Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012).
There can also be a discretionary award of attorneys’ fees to the
No award of damages & profits, including no statutory damages
Limitations on Remedies:
State Employees Acting in Personal Capacity on the Job
State institution employees may also be sued in their personal capacity (e.g.
a professor acting not on behalf of an institution) both for money and an
injunction. Further, many state liability regulations will not allow the state
to defend an employee who engages in illegal acts.
See, e.g., Richard Anderson Photography v. Brown, 852 F.2d 114 (4th Cir. 1988); Hirtle, Hudson, Kenyon (2009)
However, no statutory damages can be awarded if the infringer is an
employee of a nonprofit educational institution, library, or archives and had
reasonable grounds for believing (and hence believed) that his/her use was
a fair use. So, the monetary remedies would be limited to actual damages
and the employee’s profits.
17 USC 504(c)(2); see also 50 Am. Jur. Proof of Facts 2d 263