The document outlines copyright and fair use considerations for digital projects, detailing the importance of obtaining permission for using copyrighted content and the criteria for determining fair use under U.S. law. It provides a structured workflow for evaluating whether permission is required, seeking it if necessary, and addressing potential legal and policy issues related to rights of privacy and publicity. Additionally, the text highlights the rights of authors related to their works, the significance of registration, and the benefits it confers.

1. Copyright &
Fair Use in
Digital Projects
Office of Scholarly
Communication Services
Rachael Samberg
Mar. 7, 2019

2. Reflecting on why
you’re here

3. Using other
people’s
content?
Solution to Burgers’ Equation Multi-heterocyclic system
https://pubs.acs.org/doi/10.1021/acs.joc.7b02978https://commons.wikimedia.org/wiki/File%3AB
urgersfig.png

4. Using other
people’s
content?
Ho attraversato tutta la città.
Poi ho salita un'erta,
popolosa in principio, in là
deserta,
chiusa da un muricciolo:
I traversed the whole city.
Then climbed a hill
crowded at first, in the end
deserted,
closed off by a little wall:
Trieste, Umberto Saba, 1910 Trieste, trans. A.S. Kline, 2012

5. Website or
database
terms of use
Translated by A. S. Kline
© 2012 All Rights Reserved
This work may be freely reproduced, stored, and
transmitted, electronically or otherwise, for any
non-commercial purpose.
http://poetsofmodernity.xyz/POMBR/Italian/FiveItalianPoets.htm#anchor_Toc326225674

6. But, can’t I just
cite the source?
Attribution
Permission

7. You’re an author.
You have decisions
to make.

8. What is copyright?
Exclusive rights to make
certain uses
of original expression
for limited period of time

9. Exclusive Rights
▪Reproduction
▪Derivative works
▪Distribution
▪Public performance
▪Public display

10. Limited period of time
Varies, but at
least author’s life
+ 70 years…

11. Limitations

12. Original Expression
Protects expressions,
not ideas or facts
Must be original,
authored, & fixed
Ghana Statistical Service, “Gross Domestic Product 2016,”
http://www.statsghana.gov.gh/gdp_new.html By Rachael G. Samberg

13. Public Domain
CDC reportMartin Droeshout [Public domain]

14. Within “protected” period,
author’s permission needed
to reproduce, display,
perform, etc., but there are
exceptions

15. Fair Use
17 U.S.C.§ 107
“The fair use of a
copyrighted work…for
purposes such as
criticism, comment,
news reporting,
teaching…, scholarship,
or research, is not an
infringement of
copyright.”

16. Four-Factor Balancing Test
1. Purpose & character of use
Non-profit;“transformativeness”
2. Nature of copyrighted work
Whether factual/scholarly
3. Amount and substantiality
Size & importance of portion
4. Effect on potential market
Whether it supplants market

17. e.g. Dissertation comparing
visual representations of Turkey
George Georgiou,
http://www.georgegeorgiou.net/projects.php
1. Purpose & character
Non-profit; whether
“transformative”
2. Nature of copyrighted work
Scholarly vs. creative
3. Amount and substantiality
Size & importance of portion
4. Effect on potential market
Whether it supplants market

18. Is use fair?
● All four factors
● No bright line rule
● No 10% rule
● Okay to link to lawful

19. Still in © and use
exceeds fair?
● You need permission
● Permission = license
● Can be pre-applied

20. © & Fair Use for Digital Projects Workflow
1: Do you need
permission?
Has a license already
been granted?
Is the work
protected by
copyright?
Would publishing the
content be fair use?
If yes to any, go to Step 3.
2: Seek permission if
needed
Research who holds
copyright & send request.
Keep records for
your files
Ensure permission covers all
intended uses
3: Address non ©
policy concerns
Contractual or terms of service
restrictions from archives, databases,
or websites?
Concerns about rights of
privacy or publicity?
Should you
register your
copyright?
Do you want to & can you
license the use of your
work?
4: How do you want
to share?
Questions?
schol-comm@berkeley.edu

21. Step 1:
Do you need
permission?

22. Do you need permission?
1. Is it protected by copyright?
2. Is there a license?
3. Is your use fair use, or meet
another exception?

23. Is it protected
by copyright?

24. Is there a
license?
Diagram of the human heart
(cropped)
Creative Commons
Attribution-Share Alike
3.0 Unported

25. Does an
exception
apply?
Excerpt of 2011 Don Quixote
translation, that you’re
using in a literary essay

26. You have a right to
make fair uses.
Asserting that right
requires judgment and
some risk analysis.

27. Step 2:
Seek permission
if needed

28. Finding
rightsholders
Could try archives &
registration databases

29. Get permission
for scope of use
Robert Rauschenberg, “Bed”
Image file MOMA
“The image may be displayed in eBook
format for a period of up to ten
years only. All future editions,
reprints, translations, or formats
(including electronic media) must be
negotiated separately.”

30. Keep records of
determinations & efforts
Download spreadsheet:
http://ucblib.link/digprojectpermissions

31. If you’re concerned your
use exceeds fair use, but
are unable to locate
rightsholder,
or the scope of your
usage request is denied:
Exercise judgment and
undertake risk analysis.

32. Step 3:
Address other
legal & policy
issues

33. Archives
Agreement
“I understand that permission
to publish, or otherwise
publicly use, materials . . .
must be [granted by library]
I understand further that the
University makes no
representation that it is the
owner of the copyright... and
that permission to publish must
also be obtained from the owner
of the copyright.”

34. Website Terms
“If you intend to
quote extensive
amounts of text, use
other original
content, or
reproduce images
from this site,
please contact us
for permission.”

35. Database Agreements
Challenges:
- Terms
- Visibility

36. Rights of Privacy
● © protects copyright holders'
property rights
● Privacy protects people who are
subjects of works
● Fed’l (FERPA, HIPAA) vs. State
● State limits
○ Expire at death
○ Newsworthiness and permission
are defenses

38. Rights of Publicity
● Right to control commercial
use of identity
● Survive death
● Usually applicable only if
commercial use

39. Step 4:
Consider your
rights as author

40. If you liked it then you
should have put a
registration on it?
• You hold copyright once you
create something digitally.
Registration not required.
• But it has advantages:
statutory damages

41. License for use by others?
http://www.tlg.uci.edu/copyright/index.php

42. Questions?
Office of Scholarly
Communication Services
schol-comm@berkeley.edu
lib.berkeley.edu/scholcomm
@UCB_scholcomm