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What’s New in Copyright Deep Dive Part I


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Presented at the Joint Meeting of SEAALL/SWALL April 2016

Published in: Education
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What’s New in Copyright Deep Dive Part I

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  2. 2. Laura McKinnon, MLIS, JD Laura.Mckinnon@unt.ed u Director of the Copyright Advisory Office University of North Texas Brett D. Currier, MSLS, JD Director of Scholarly Communications University of Texas at Arlington 3 INTRODUCTIONS
  3. 3. PURPOSE OF © “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Article I, §8 of the U.S. Constitution) Copyright is supposed to promote learning and invention The Copyright Act is located in Title 17 of the United States Code.
  4. 4. PURPOSE OF © “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Article I, §8 of the U.S. Constitution) Copyright is supposed to promote learning and invention The Copyright Act is located in Title 17 of the United States Code.
  5. 5. WHAT CAN BE COPYRIGHTED? Literary works; Musical works, including any accompanying words; Dramatic works, including any accompanying music; Pantomimes and choreographic works; Pictorial, graphic, and sculptural works; Motion pictures and other audiovisual works; Sound recordings; and Architectural works. 17 U.S.C. § 102
  6. 6. WHAT CANNOT BE COPYRIGHTED? Ideas & theories  Copyright protects expression of ideas, but not the ideas themselves Facts & discoveries  Including data U.S. government works (federal level) produced by a government employee in the scope of their duties*** Works whose copyrights have expired – enter the public domain  Works in the public domain can be used freely by anyone for any purpose
  7. 7. A NOTE ABOUT US GOV’T WORKS: U.S. government works (federal level) produced by a government employee in the scope of their duties  This means federal statutes, case law, and regulations do NOT have copyright protection  However, content from commercial publishers like annotations and headnotes DOES have copyright  Syllabi from SCOTUS does NOT have copyright protection  Prepared by federal employee in scope of their duties  State compilations of cases, statutes, regulations  Generally considered compilations of facts, so no copyright protection
  10. 10. WHEN DOES © PROTECTION BEGIN? Copyright protection begins automatically in:  “original works of authorship fixed in any tangible medium of expression…” 17 U.S.C. § 102(a)  Only needs a small amount of creativity to be original  Writing, painting, taking pictures, building a sandcastle, blogging, and Tweeting are all fixed works in tangible mediums  Fixed ≠ permanent
  11. 11. NO FORMALITIES NEEDED FOR PROTECTION  You do not have to publish your work to get copyright protection  You do not have to register your work with the Copyright Office to get protection  You do not have to provide notice (use the © symbol) in order to get protection  *Although, you cannot sue for statutory damages or attorneys’ fees until after your work is registered with the Copyright Office
  12. 12. © OWNERS’ EXCLUSIVE RIGHTS 1. Reproduction;  Copies 2. Derivatives;  New works based on the original copyrighted work 3. Distribution;  To the public by sale, rental, lease, or lending 4. Public performance;  Literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audio visual works 5. Public display;  Literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works 6. Public performance of work via digital audio transmission  This is a very limited right that applies only to sound recordings  © owners of sound recordings only have the exclusive rights to #1, #2, #3, and #6 on this list! 17 U.S.C. § 106
  13. 13. HOW LONG DOES © PROTECTION LAST? Works created in 1978 or later:  Created by a person = life of the author + 70 years  Created by a corporation (and works made for hire) = the shorter of 120 years from creation or 90 years from publication Works created before 1978:  Use this chart – Works created before 1923 are in the public domain Foreign works  Use chart above
  14. 14. EXCEPTIONS TO EXCLUSIVE RIGHTS §107 Fair Use §108 Reproduction by Libraries and Archives §110(1) Face-to-Face Teaching §110(2) TEACH Act *this list is not exhaustive
  15. 15. FAIR USE Fair use is detailed in §107 of the Copyright Act and allows things like:  “criticism, comment, news reporting, teaching, scholarship, research” 17 U.S.C. §107 Exception to exclusive rights It only applies to works that have © protection  if the work is in the public domain, you do not need to rely on fair use Fair use is a balancing test and courts look at four factors when determining whether a use is fair
  16. 16. FAIR USE BALANCING TEST Four factors: 1. Purpose of use  Nonprofit? Educational? Commercial? 2. Nature of work used  Published? Unpublished? Nonfiction? Creative? 3. Amount and substantiality of work used  Just a small amount? Is it the heart of the work? 4. Effect on market of work  Will it compete with sales of the original? Strong emphasis on whether use is transformative 1. Is the purpose of your use different than the original purpose of the work? 2. If yes, is the amount used appropriate to your transformative use? (too much, not enough?)
  17. 17. FAIR USE BALANCING TEST Only a court can definitively determine whether a use is fair – it is a balancing test, so you cannot just check off each factor, you must weigh them all and determine whether your use overall leans in favor or against fair use  There are several checklists that can help you make a determination Case by case analysis – you must look at each use individually to determine whether it is fair Fair use is flexible and vague -- continually evolves as the 4 factors are applied to new cases If fair use applies you do NOT need permission If fair use does not apply, you can always seek permission
  18. 18. • Clear’s Copyright Website • • Check list • efault/files/documents/fair_use_ analysis_for_unt_libraries_pdf.p df UNT’S FAIR USE CHECKLIST
  19. 19. • U.S. Copyright Office Fair Use Index • Searchable database that provides citations to and summaries of court opinions dealing with fair use • Tool to understand fair use and how to apply it • http://www.copyright.go v/fair-use/fair- index.html FAIR USE INDEX
  20. 20. FACE-TO-FACE TEACHING “performance or display of a work by instructors or pupils in the course of face-to- face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made…” Must be in a classroom Must be in person Must be at a nonprofit educational institution 17 U.S.C. §110(1)
  21. 21. TEACH ACT Notwithstanding the provisions of section 106, the following are not infringements of copyright: … • the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if— 17 U.S.C. § 110(2)
  22. 22. WHAT DOES TEACH ALLOW? • Performance of nondramatic literary or musical work; OR • Reasonable and limited portions of ANY other work; OR • Display of work (in an amount that would typically be used in a live, face-to-face classroom); If the following conditions are met: 17 U.S.C. § 110(2) 25
  23. 23. TEACH ACT (A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;  Instructor makes, directs, or supervises performance or display; AND  Performance/display is integral to class; AND  Class is offered as regular part of instructional activities of:  Governmental body; OR  Accredited, nonprofit educational institution 17 U.S.C. § 110(2)
  24. 24. TEACH ACT (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; The performance/display must be directly related to AND of material assistance to the teaching content of the online course 17 U.S.C. § 110(2)
  25. 25. TEACH ACT (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—  (i) students officially enrolled in the course for which the transmission is made; or  (ii) officers or employees of governmental bodies as a part of their official duties or employment; and Transmission is made for and is limited to: Students officially enrolled in that specific course OR Employees of governmental bodies as part of their official duties 17 U.S.C. § 110(2)
  26. 26. TEACH ACT (D) the transmitting body or institution—  (i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and Institution must: • Create copyright policies • Provide informational materials to faculty, staff, students that accurately describe and promote compliance with U.S. © law • Provide notice to students that materials may be subject to © protection AND… 17 U.S.C. § 110(2)
  27. 27. TEACH ACT  (ii) in the case of digital transmissions—  (I) applies technological measures that reasonably prevent—  (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and  (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and  (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination; Institution must use technology to prevent:  retention of work for longer than the class session AND  Unauthorized dissemination by students to others Institution must not tamper with technology used by © owners to prevent retention or dissemination 30
  28. 28. yright/downloads/checklist.pdf • Can help you determine whether you are meeting the requirements of TEACH COLORADO STATE UNIVERSITY’S TEACH ACT CHECKLIST
  29. 29. USING OTHERS’ WORKS Embedding or linking to outside websites, videos, etc. does NOT infringe copyright Quotes and excerpts are generally recognized as fair use in academia Photographic reproductions of public domain images (including 2d works of art) do not have copyright protection – Bridgeman Art Library v. Corel Corp.   Does not apply to photos of 3d art (sculpture, architecture, etc.), but fair use may be appropriate Terms of licenses and other contracts generally trump copyright exemptions like fair use
  30. 30. PRESENTATION RESOURCES Public Domain  Public Domain & Copyright Term chart:  Find CC and Public Domain works: Copyright – General  UNT Fair Use Checklist: ries_pdf.pdf  Colorado State University TEACH Act Checklist:  U.S. Copyright Act:  §102 Subject Matter of Copyright  §106 Exclusive Rights in Copyrighted Works  §107 Limitations on Exclusive Rights: Fair Use  §110 Limitations on Exclusive Rights: Exemption of Certain Performances and Displays
  31. 31. PART II BEGINS AT 2:15PM Overview of recent copyright case law including: • HathiTrust • GSU • Google Books 34
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