Understanding and Defending Copyright in Your Library: An Introduction (Part 1, September 2018)

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CC BY-NC-ND 4.0
Understanding and
Defending Copyright in
Your Library:
An Introduction
Part 1
Sept. 4, 2018

2. Jill H-W • p. 2
Jill Hurst-Wahl
▰ www.hurstassociates.com
▰ hurst@hurstassociates.com
▰ Twitter: @Jill_hw
▰ Author, speaker, consultant,
instructor…
▰ Lover of copyright law!
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What is this two-part copyright
workshop?
This will help you understand what copyright is (and
isn’t) so you can begin to defend how your library and
users/patrons/community use print and digital materials.
This first session will place the basic rules of copyright
law in ordinary terms, and put their usage into context.
▻ What is protected by federal copyright law
▻ The length of copyright protection
▻ What rights a creator or copyright owner has
▻ What is in the public domain
▻ What is Fair Use
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…on U.S. copyright law.
Will reference Canadian laws and other
aspects of international laws, when
appropriate.
PLEASE set aside what you think is in the
law and learn what the law actually
contains.
The focus is…

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What is intellectual
property?
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“Intellectual property (IP) refers to creations of
the mind, such as inventions; literary and
artistic works; designs; and symbols, names
and images used in commerce.
According to the World Intellectual Property
Organization (WIPO)
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“A patent for an invention is the grant
of a property right to the inventor,
issued by the United States Patent
and Trademark Office. Generally, the
term of a new patent is 20 years from
the date on which the application for
the patent was filed in the United
States…
Patent definition from U.S. Patent
& Trademark Office (USPTO)
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“A trademark is a brand name. A
trademark or service mark includes any
word, name, symbol, device, or any
combination, used or intended to be
used to identify and distinguish the
goods/services of one seller or
provider from those of others, and to
indicate the source of the
goods/services.
Trademark or Service Mark definition from USPTO
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“Trade secrets consist of information and
can include a formula, pattern, compilation,
program, device, method, technique or
process. To meet the most common
definition of a trade secret, it must be used
in business, and give an opportunity to
obtain an economic advantage over
competitors who do not know or use it.
If a trade secret holder fails to maintain
secrecy…protection… is lost.
Trade Secret definition from USPTO
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What is copyright?
What rights does the creator
(copyright owner) have in
his or her works?
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“Copyright (or author’s right) is a legal
term used to describe the rights that
creators have over their literary and
artistic works. Works covered by
copyright range from books, music,
paintings, sculpture, and films, to
computer programs, databases,
advertisements, maps, and technical
drawings.
Copyright definition from WIPO
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“
Jill H-W • p. 12
In the simplest terms, ‘copyright’ means
‘the right to copy.’ In general, copyright
means the sole right to produce or
reproduce a work or a substantial part
of it in any form. It includes the right to
perform the work or any substantial part
of it or, in the case of a lecture, to deliver
it. If the work is unpublished, copyright
includes the right to publish the work or
any substantial part of it.
Canadian Copyright Law says…

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“Copyright protection subsists, in
accordance with this title, in original
works of authorship fixed in any
tangible medium of expression, now
known or later developed, from
which they can be perceived,
reproduced, or otherwise
communicated, either directly or with
the aid of a machine or device.
U.S. Title 17, Section 102
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In the United States
In the U.S., the rights are conferred
when the work is created. No registry
required!
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“(1) literary works;
(2) musical works, including any
accompanying words;
(3) dramatic works, including any
accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual
works;
(7) sound recordings; and
(8) architectural works.
U.S. Title 17, Section 102 [works]
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Section 106: Exclusive rights of the
copyright owner (1/2)
1) to reproduce the copyrighted work in copies or
phonorecords;
2) to prepare derivative works based upon the
copyrighted work;
3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or
lending;
4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion
pictures and other audiovisual works, to perform
the copyrighted work publicly;
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Section 106: Exclusive rights of the
copyright owner (2/2)
5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including
the individual images of a motion picture or
other audiovisual work, to display the
copyrighted work publicly; and
6) in the case of sound recordings, to perform
the copyrighted work publicly by means of a
digital audio transmission.
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Think of how much is protected!
You and your community members
(patrons) are surrounded daily by materials
that are protected by copyright law.
Every day you create something which
receives protection.
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How long does copyright
protection last?
You might think:
• Forever!
• What - it has a limit?
• Something about the life of the creator
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▰ Based on national law
▰ Influenced by international treaties
Length of copyright protection

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“In General.—Copyright in a work
created on or after January 1, 1978,
subsists from its creation and, except
as provided by the following
subsections, endures for a term
consisting of the life of the author and
70 years after the author’s death.
In the U.S., Title 17, Section 302
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Questions before we move on?
22

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ARE THERE WORKS WHICH
ARE FREE FROM
COPYRIGHT PROTECTION?
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Good News!

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“…it is free for use by anyone for any
purpose without restriction under
copyright law.”
– Creative Commons
Works free from restriction are in the public domain
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▰ Works that cannot be copyrighted
▰ Works where copyright protection was not sought
▰ Works where copyright protection has expired
▻ For example, most works created before 1923
 Era specific
Public Domain includes

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Look around you…
Focus on something that you believe is
protected by copyright law.
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Let’s walk through how to discern if it is
covered by copyright protection.
Now…

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Was the work copyrightable? (1/2)
Is it one of these?
▰ 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
▰ architectural works
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Was the work copyrightable? (2/2)
What cannot be copyrighted?
▰ Ideas, procedures, methods, systems,
processes, concepts, principles, or
discoveries
▰ Works that are not fixed in a tangible form
▰ Titles, names, short phrases, and slogans
▰ Familiar symbols or designs
▰ Mere variations of typographic
ornamentation, lettering, or coloring
▰ Mere listings of ingredients or contents
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▰ If created prior to 1923, it is in the public
domain.
▰ If it was created after 1923 and before
March 1, 1989, was it published with a
copyright notice? (See the Cornell
resource for additional info)
Did it meet the conditions for
protection? Is it protected? (1/2)

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“Applying a copyright notice to a
work has not been required since
March 1, 1989, but may still provide
practical and legal benefits. Notice
typically consists of the copyright
symbol or the word ‘Copyright,’ the
name of the copyright owner, and the
year of first publication. Placing a
copyright notice on a work is not a
substitute for registration. (Circular 1)
Did it meet the conditions for protection?
Is it protected? (2/2)
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Is that work still under copyright
protection?

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Focus on something that you believe is not
covered by copyright law.
Why isn’t it protected by copyright law?
Continue to look around…

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Quick Review
▰ Original works of authorship fixed in any
tangible medium of expression are
protected
▰ Length of protection is the life of the
creator plus 70 years
▰ Creator has specific rights
▰ More works are covered by copyright
than we imagined
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Introduction to Fair Use
Part 2: Sept. 5
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What is Fair Use? (U.S.)
…the fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by
any other means specified by that section, for
purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of
copyright. - Title 17, Section 107
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Fair dealing is a statutory exception to copyright
infringement, and is also referred to as a user's right (as
opposed to an owner's right). According to the Supreme
Court of Canada, it is more than a simple defence; it is an
integral part of the Copyright Act of Canada, providing
balance between the rights of owners and users. To qualify
under the fair dealing exception, the dealing must be for a
purpose enumerated in sections 29, 29.1 or 29.2 of the
Copyright Act of Canada (research, private study,
education, parody, satire, criticism or review and news
reporting), and the dealing must considered fair as per the
criteria established by the Supreme Court of Canada.
- Wikipedia
What is Fair Dealings? (Canada)

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People often wrongly assume that…
▰ If it doesn't have a copyright notice, it's not
copyrighted.
▰ If I don't charge for it, it's not a violation.
▰ If it's posted to the Internet it's in the public domain.
▰ My posting was just fair use!
▰ It doesn't hurt anybody -- in fact it's free advertising.
▰ They e-mailed me a copy, so I can post it.
- Brad Templeton
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Looking ahead to part 2
Building upon part 1, this session will tackle two
important areas to our libraries: Fair Use and ebooks.
Fair Use is a critical part of the U.S. copyright law, yet
do you know that there is an actual test to determine if
the use is fair? As for ebooks and other digital
materials, it is important to know where they do (and do
not) intersect with U.S. copyright law. Given that digital
works are generally licensed and not sold, what should
we be advocating for on behalf of our libraries and
community members? The session will conclude by
answering questions submitted at the end of part 1.
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Q&A
What copyright questions do you have
related to libraries?
▰ There is not enough time to answer
non-library questions.
▰ Some questions may be held and
answered in Part 2.
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Resources: U.S. Copyright
▰ U.S. Copyright Law
▰ U.S. Copyright Basics (Circular 1)
▰ Works Not Protected by Copyright (Circular 33)
▰ Copyright Term & the Public Domain in the U.S.
(Cornell)
▰ Creative Commons
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Resources: Other Information
▰ U.S. Patent & Trademark Office
▰ Canadian Copyright Act
▰ Fair dealing in Canadian copyright law
▰ Creative Commons
▰ World Intellectual Property Organization copyright
information
▰ 10 Big Myths about copyright explained
(Templeton)
Thanks to SlidesCarnival for the presentation template.
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