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09.08.16 Librarian Training re Copyright in Course Instruction

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Training for librarians re: instructors' use of copyrighted materials in course websites or live instruction.

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09.08.16 Librarian Training re Copyright in Course Instruction

  1. 1. Instructors’ Use of Copyrighted Materials Rachael G. Samberg Sept. 2016
  2. 2. Topics Today  Copyright Basics  What is copyright  What is protected / not protected  Using copyrighted materials  When permission needed  Exceptions  Copyright Compliance in the Classroom  Best Practices Workflow  Liability for Oopsies
  3. 3. What is Copyright?
  4. 4. Constitution Empowers Congress to Act 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.” What laws did Congress make, and what are the rewards?
  5. 5. The Copyright Act: Reward of Exclusive Rights…  Reproduction  Preparation of derivative works (such as adaptations)  Distribution  Public performance  Public display  Public performance of sound recordings via digital audio transmission
  6. 6. …for Limited Periods of Time  Length varies, based on:  Type of work  When created  Who was author  When first published  etc. Expect at least author’s life + 70 years from author’s death Means that within “protected” time period, author’s permission needed to reproduce, display, perform, etc. the work
  7. 7. A Few Other Prerequisites  Protects expressions, not ideas or facts  Must be authored, original, and fixed
  8. 8. Copyright & the Underlying Work  Separate from owning physical work  If you buy book, can’t make bunch of copies for everyone  Instead, copyright is retained by one or more of the author, publisher, etc.
  9. 9. Can’t an instructor catch a break?
  10. 10. Limitation on Copyright: Works in Public Domain Not Protected Works by U.S. Federal Government Works whose copyright term/duration has expired https://commons.wikimedia.org/wiki/File:Britannica_Shakespeare_Droeshout_Engraving.jpg
  11. 11. Limitation on Copyright: Statutory Exemptions  Allow individuals to undertake one of the exclusive rights:  Without obtaining permission;  Without payment of license fee
  12. 12. Statutory Exemption: Fair Use (17 USC § 107) 1. Purpose and character of use (commercial purposes less likely fair than nonprofit educational purposes; whether use is “transformative” often dominates this factor’s analysis) 2. Nature of the copyrighted work (more likely fair if you’re using factual/scholarly work) 3. Amount and substantiality (size & importance of portion used in relation to whole) 4. Effect of use upon potential market (less likely fair if use is substitute for purchasing original)
  13. 13. Is use fair?  All four factors must be evaluated  No statutory 10% rule  Always fair to link, rather than post copy
  14. 14. Other Statutory Exemptions: TEACH ACT  §110 of Copyright Act allowed display and performance in face-to-face teaching in nonprofit educational institution  Amended § 110(2) permits same asynchronously (e.g. on course-restricted sites). However, limited to:  Performance of entire nondramatic literary or musical work (e.g. recorded reading of a poem or novel)  Performance of limited and reasonable portion of any other work (e.g. scene from a film)  Display of any work in amount comparable to what would be used during physical class setting (e.g. portion of film you would show in class, or portion of a chapter students would be asked to read during class)
  15. 15. In Summary  Copyright gives copyright owners six exclusive rights for a designated period of time.  Permission needed to undertake any of those rights if copyright exists and has not expired.  However, no permission needed if intended use falls under statutory exemptions.  Nor is permission needed if you link to the content, rather than copy/reproduce/post the actual content, itself.
  16. 16. What to do with this info? The Copyright Workflow for Posting to bCourses
  17. 17.  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 http://copyright.universityofcalifornia.edu/use/teaching.html
  18. 18. If Instructor’s answer to any question is “yes”: If Instructor’s answer to all questions is “no,” two options: Material can be posted directly to bCourse site (though link always possible/preferable ) Post link to content, rather than content, itself If link can’t be found, or Instructor prefers posting copies, request copyright holder’s permission OR 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)?
  19. 19. Is the workflow answer “yes”? Library’s guide can help instructors answer the workflow questions http://guides.lib.berkeley.edu/instructor-copyright-bcourses
  20. 20. If workflow answer is “no,” finding links
  21. 21. Links to Articles, Books, Video, etc.  Cody’s libguide: http://guides.lib.berkeley.edu/r eadings-in-bcourses
  22. 22. If workflow answer is “no,” getting permission
  23. 23. 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.
  24. 24. What about oopsies?
  25. 25. Possible Consequences (“Remedies”)  Grant of an injunction  Impounding and/or destruction of infringing articles  Award of damages and profits; statutory damages election option  Award of costs and attorney’s fees  Criminal liability
  26. 26. Limitations on Remedies Against State Institutions  State & tribal governments, and component units such as state university, immune from suit for monetary damages.  However, these entities can potentially be sued for injunctive relief to prevent future infringement.
  27. 27. State Institution Employees Acting in Official Capacity  Action for injunctive relief against state employees acting in official capacity.  Can also be award of attorneys’ fees to the prevailing party.  No award of damages & profits, including no statutory damages
  28. 28. State Institution Employees Acting in Personal Capacity on the Job  May also be sued in 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.  However, no statutory damages if infringer an employee of nonprofit educational institution, library, or archives and had reasonable grounds for believing (and hence believed) that use was fair. So, monetary remedies limited to actual damages and employee’s profits.
  29. 29. Best Practices? USE THE WORKFLOW
  30. 30. All photos © 2015-2016 by Rachael G. Samberg Presentation issued under Attribution-ShareAlike 4.0 Int’l License (CC BY-SA 4.0) Our Offer to Instructors Library can assist with fair use and other statutory exemption questions: http://guides.lib.berkeley.edu/instructor-copyright-bcourses; rsamberg@berkeley.edu Library can help you find materials and links: http://guides.lib.berkeley.edu/readings- in-bcourses; chennesy@berkeley.edu
  31. 31. SURVEY! http://bit.ly/9816_training

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