Copyright Boot Camp Miami University Libraries Copyright Conference

Copyright Boot Camp Miami University Libraries Copyright Conference September 20, 2017 Carla Myers Assistant Librarian & Coordinator of Scholarly Communications Miami University Libraries (Ohio) [email protected]

Please Note: The information provided in this presentation should not be construed as legal advice. If you have a legal question you should speak with an attorney. Overview

Copyright Basics Copyright Exemptions Putting it all Together Copyright Basics Origins of U.S. Copyright Law

Article 1 Section 8 of the U.S. Constitution and represents the founding fathers effort "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." 6

The Law Copyright is codified in title 17 of the U. S. Code Definitions Scope Rights & Limitations Exceptions

http://www.copyright.gov/title17/ Securing Copyright Copyright protection subsists in in original works of authorship (not copied) which are fixed in any tangible medium of expression. 17 U.S.C. 102

8 Originality Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at

least some minimal degree of creativity. -Justice OConnor, Fiest v. Rural https://www.youtube.com/watch?v=oOlDewpCfZQ Fixation A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecordis sufficiently permanent or

stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. 101 This means We all own thousands of copyrights. Much of what we encounter in our daily

lives is protected by copyright. Copyright notice (e.g. 2017 by Carla Myers) is no longer required! Registering with the Copyright Office Registration and the inclusion of a copyright notice is no longer necessary, but does have some benefits

Documents your ownership in the copyright of the work Allows you to recover statutory damages if suing someone for copyright infringement. http://www.copyright.gov/eco/ 12 What is Copyrightable? Literary works (fiction/nonfiction, poetry,

textbooks, reference works, directories, catalogs, advertising copy, compilations of information, computer programs and databases) Musical works (this generally refers to music scores & accompanying words) Dramatic works (plays, film, radio, and television scripts)

Pantomimes and choreography 13 What is Copyrightable? Pictorial, graphic, and sculptural works (art) Motion pictures and other audiovisual works (film, television show, videogame, etc.) Sound recording (performances of musical

works, audio recordings of literary works) Architectural works (just the designs, not the building its self!) 14 What is Not Copyrightable? Ideasno one can copyright an idea,

however your expression of an idea may be protectable. Making ideas freely available for anyone to pursue promotes the progress ofuseful arts What is Not Copyrightable? Facts-No one may claim originality as to facts. This is

because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery. The first person to find and report a fact has not created it, they have merely discovered its existence. Fiest v. Rural What is Not Copyrightable?

Works in the public domain, which include Works whose copyright has expired Works created by the U.S. Government What is Not Copyrightable? Works that are not fixed in a tangible medium of expression do not have copyright protection. Names, phrases, slogans, titles, symbols (though

these could be protected under trademark). Mere variation of typographic ornamentation, lettering, or coloring. Simple listings, e.g. table of contents, recipe ingredients (think facts!) Procedures, methods, processes (though these could be protected under patent or trade secret law). Works consisting of common facts, e.g. calendar,

height/weight chart, ruler. Exceptions! Copyright & Facts You could have copyright for your writings about facts Textbook

Nonfiction Scholarly article Additions to factual lists such as recopies Could secure copyright for your arrangement of facts/data Section of facts and data used in an annotated bibliography Arrangement and layout of a pie chart or graph

Copyright in new Expressions of or Components added to Public Domain Works Illustrations Footnotes Introductions Works Created by Employees of the U.S. Government Could have Copyrightable Components

Photo Credit: nps.gov Copyright in Graphic Design Bringing shapes, lettering, and coloring together in a way that is protectable. Not Protectable

Protectable! Copyright Ownership The Rightsholder is Generally, the person who creates the work.

Joint Authorship-When two or more authors work together to create a work the copyright is shared between them. Authors must decide to work collaboratively Each author must contribute significantly to the copyrightable expression to the work Merged into inseparable or interdependent parts of a unitary whole

Works Made for Hire Works created by the employee in the scope of their employment Generally, the copyright will rest with the employer Works created by independent contractors Even with commissioned works, the parties

must agree in writing ahead of time who will hold the rights to the work Duration of Copyright How Long Does Copyright Last? Works created after Jan. 1, 1978 are protected

for the life of the author plus 70 years Join authorship-life of last surviving author +70 years Works for Hire-95 years from publication or 120 years from creation, whichever is shorter For older works, it depends Works Created Before 1923

Works published before 1923 are in the public domain. Use them anyway you like! Republish, make a movie or play, add commentary Original work is still not protected, but your expression of it is Always, always give proper attribution!

In Limbo Works published between 1923-1978 It depends! Inclusion of copyright notice? Was it registered? Was the copyright renewed? If in doubt, treat as a protected work http://librarycopyright.net/resources/digitalslider/

30 Authors Rights Authors Rights Owner of a protected work is provided with certain right.

The right to reproduce (copy) the work The right to distribute the work (share/publish/sell) 32 Derivative Works Reconstructing an original work to express it in a different way, e.g. Eragon, by Christopher Paolini

Translations Graphic novel Film Merchandising Public Display To display a work means to show a copy of it, either directly or by means of a film, slide, TV

image, or any other device or process. In the case of motion picture or visual work, to show individual images nonsequentially Examples of Public Displays Showing images in the classroom Including a film still as part of a movie review posted to a website

Public Performance To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process In the case of a motion picture or other audiovisual works, to show its images in sequence or to make accompanying sounds audible. Examples of Public Performances

Acting out a play Hosting a film screening Musical performance Story time! Copyright Infringement

Common Misconceptions If its on the internet I can use it however I want. If its a library/personal/not-for-profit use I can use anything I want, however I want, right? So long as I give credit to the person who created the work I dont have to worry

about copyright infringement. Ill never get caught! Infringement Copyright infringement occurs when we take advantage of one of the rights granted to creators under the law without their authorization. 1. Reproduce works

2. Make derivatives 3. Distribute copies 4. Perform the work publicly 5. Display the work publicly 6. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Summary Basics Recap Its very easy to secure copyright Many different types of works are protected Work have copyright protection for a long time

Its easy to infringe! Yikes! Fortunately there are exceptions written into the law that allow us to reuse the works of others in certain situations Exemptions!

Legal Exceptions Many exceptions to copyright, with a few specific to education and libraries Fair use Library copying First sale doctrine Face-to-face teaching Displays and performances for distance learning

(TEACH Act) Special formats for those with disabilities Digital Millennium Copyright Act Fair Use 17 U.S.C. 17 U.S.C. 107

In determining whether the use made of a work in a particular case is a fair use the factor to be considered shall include 1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used

in relations to the copyright work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work Factor 1: Purpose & Character of the Use Nonprofit educational use is heavily favored over a commercial use Assigned material vs. being used more for

entertainment Transformative Use Have you turned it the original into something new by adding new expression or meaning? Judge Pierre Leval provides a wonderful definition of transformative use in his article Toward a Fair Use Standard, which can be found here:

http://docs.law.gwu.edu/facweb/claw/levalfrustd.htm. He states that a transformative use must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new

insights and understandings-- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Examples of Transformative Use-Music Musical Mash-up Glee--The Way You Look Tonight / You're Never Fully Dressed Without A Smile (Glee Cast Version)

Examples of Classroom Transformative Use Using a popular movie to teach a subject, e.g. using clips from World War Z to discuss disaster response. Factor 2: The Nature of the

Work Explores the characteristics of the work being used Fiction vs. nonfiction Published vs. unpublished Consumable? Factor 3: The Amount & Substantiality of the Portion Used

Looks at quantity and quality There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use -Maxtone-Graham v. Burchael Supreme Court Ruling

1. News reporting, but unfair commercial use due to intent to supplant first publication 2. Informative work 3. Small amount, but the heart of the work and 4. Serious market erosion Best Advice Regarding the Amount Used Consider the amount needed to serve the purpose of the use in relation to the work

being used. This is a judgment call, and one you must be prepared to justify should your use of the work ever come into question! If straight copying or quoting, less is better If transformative, can usually justify more! 53 Beware of the Guidelines!

Classroom Photocopying Guidelines (1976) Use must be spontaneous Brevity Can use 1 chapter or 10% of a work No more than 250 words from a poem Only 1 chart, picture or diagram from a work Must seek permission for subsequent use

Off-Air Recording of Broadcast Programming for Educational Purposes (1981) Carry no force of law and provide no safe harbor against infringement! Factor 4: Effect on the Market Is your use resulting in lost revenue for the

rightsholder? Occurs when use replaces sale of the work This factor often carries a lot of weight, especially when looking at commercial uses Can weigh in favor if use is transformative (parody, mash-up) Consider that your use could actually help the market for the item! (comment, critique)

But its so confusing! Congress deliberately created fair use to flexible so that it could apply to many different situations. Unfortunately though, this can lead to uncertainty regarding its application.

Fair Use Tools Using Fair Use Tools These decisions are very subjective and need to be made by the person utilizing the protected work Only work if you are completely honest! Keep a copy

Record of fair use decision Can be used as a legal document Fair Use Tools Ken Crews Fair Use Checklist: http://copyright.columbia.edu/copyright/fair-u se/fair-use-checklist/

ALA Fair Use Evaluator: http://librarycopyright.net/fairuse/ Thinking Through Fair Use (U of Minnesota) http://www.lib.umn.edu/copyright/fairthoughts Library Copying for Research & Preservation 17 U.S.C. 108

What it Allows Section 108 allows libraries to make copies of protected works for the purpose of 1. Private study 2. Preservation 3. InterLibrary Loan (ILL) A few requirements:

Library must be open to the public Copies are not made for commercial purposes Library does not engage in bulk distribution of copies Each copy includes a copyright notice 17 U.S.C. 108 Making Copies for Private Study

Types of Works that can be Copied Literary works, including magazines, journals, newspapers, and books Illustrations, pictures, charts, and graphs that accompany literary works Those audiovisual works that deal with the news

Types of Works that cannot be Copied Musical compositions/scores Most art Most audiovisual works, including movies Making Copies for Private Study The copy becomes the property of the user

You have no reason to suspect that the patron will be using the copy for any other purpose besides private study Your library displays a copyright warning where requests are submitted (online or on paper) and on the work being provided to the patron After a reasonable investigation the library can conclude that a copy cannot be obtained at a

reasonable price (when requesting a substantial portion of the item or a full copy) 17 U.S.C. 108 Making Copies for Preservation Types of Works that Can be Copied

Any type of material including art, audiovisual works, and musical scores Any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.

Making copies for Preservation-Unpublished Works The item being reproduced is currently part of the collection of their collection The copy is for Preservation (it is, or is on the verge of falling apart)

Security (you dont want a patron handling the original) Deposit in another library or archive who has an interest in the item Making Copies for Preservation-Published Works It is being used to replace a damaged, deteriorating, lost, or stolen copy

If the work is in a format that has become obsolete which, under the law, means that the technology needed to play or perform the work is no longer manufactured or is not readily available for purchase They conclude that, after performing a reasonable investigation, an unused replacement copy cannot be obtained at a reasonable price

17 U.S.C. 108 Making Copies for Interlibrary Loan Making Copies for Interlibrary Loan When youre lending: the rules are the

same as for private study When youre borrowing: make sure that your practices are not substituting for a subscription to a periodical or purchase of a work CONTU Guidelines, or Rule of 5: Up to 5 copies from the most recent 5 years of a journal title-another guideline, not law!

17 U.S.C. 108 Copying Equipment Copying Equipment Placing a notice regarding copyright on duplication equipment, including printers, photocopiers, scanners, and media duplication equipment can help release your

institution from liability. 17 U.S.C. 109 First Sale Doctrine First Sale Doctrine Notwithstanding the provisions of section 106 (3), the owner of a particular copy or

phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Essentially

When you own a copyrighted work that is lawfully made under this title you can lend, sell, or dispose of it without having to obtain permission from (or pay a fee to) the rightsholder. This provision allows. Libraries to lend items Folks to sell copyrighted item at garage sales, on eBay You to donate copyrighted items

Remember that owning a copy of a work is not the same as owning the copyright in it! You can sign-away this right via a license 17 U.S.C. 110(1) Face-to-Face Instruction Face-to-Face Teaching

Notwithstanding the provisions of 106 the following are not infringements of copyright: 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. Breaking it Down The 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 Are not infringements of copyright Breaking it Down Unless!

In the case of a motion picture or other audiovisual work The performance of the work, (e.g. playing it) Or the display of individual images Is given by means of a copy that was not lawfully made under this title (U.S. Copyright Law, Title 17 United States Code) and that the person responsible for the performance knew

or had reason to believe was not lawfully made. What Does Lawfully Acquired Mean Here? A copy you have purchased A copy owned by the library or borrowed through a legitimate library lending service such as another Prospector or Interlibrary Loan

A copy the you have borrowed from a colleague A copy you have acquired lawfully for your own personal research (conference materials, etc.) Recommendations Work with faculty to acquire items for the librarys collection Help them understand options for

requesting works through consortia/ILL 17 U.S.C. 110(2) Online Instruction The TEACH Act The Technology, Education and Copyright Harmonization Act, or TEACH Act was

passed by Congress in 2002 to address copyright issues in distance education What the TEACH Act Allows Full performance of any nondramatic music or literary work, e.g. reading of stories, poetry, or text. Performance of musical works Reasonable and limited portions* of all other works,

including audiovisual works (e.g. films, television shows, videogames). Displays of works in any amount comparable to that which is displayed in the course of a live classroom session What the TEACH Act Does Not Allow Digitization of works produced or marketed

primarily for online education Works that are made from a copy that was not lawfully acquired ORthat the transmitter knew or had reason to believe was not lawfully made and acquired TEACH Act Compliance Nonprofit educational institution

At an institutional level, copyright policies, notifications, and educational programming must be in place to help establish the appropriate use of protected works in an educational setting Technological measures must be put into place by system administrators to limit access to only those students enrolled in a course (CMS) Must find ways to prevent students from retaining

works for longer than the class session and to limit the unauthorized further dissemination of copyright works outside the class learning environment Recommendations Only digitize as much as needed to teach a work (clips), though full work may be justifiable!

Stream all audio and media files Use CMS to limit access Work with school administrators to provide some type of copyright education 17 U.S.C. 121 Special Formats for Those with Disabilities

For Patrons With Disabilities Allows libraries to make copies of previously published, nondramatic literary works in specialized formats (e.g. Braille copy for the blind, an audio recording for the hearing impaired, or digital text for those with visual impairment) for use by those with other disabilities. -andAllows the transmission of the performance of a

nondramatic literary or musical work or display to those whose disabilities prevent their attendance in classrooms, when the performance or display is part of the instructional activities of the university. So Long As Materials are reproduced or distributed only in a specialized format exclusively for use by persons with disabilities

Copies bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement You include a copyright notice identifying the copyright owner and the date of the original publication 17 U.S.C. 1201

Digital Millennium Copyright Act DMCA Anticircumvention law Prohibits circumvention of technological measures which protect access to copyrighted works Can include circumventing..

Encryption on a CD or DVD Password protection on a website Technology locking a device Also prohibits creation, sharing, and use to products and programs which allow circumvention*

Good News Only applies to unauthorized use, so if you are circumventing under the auspices of fair use or any other exception the DMCA does not apply.* Chamberlain, Inc. V. Skylink Technologies AIME v. UCLA

Had legal access to the work in question Technology used (Video Furnace) has uses beyond circumventing technological protections. More Good News Exceptions written into the law New exceptions considered by the

Registrar of Copyrights and the Librarian of Congress every 3 years Need an exceptionpursue it! Copyright & Your Library Copyright & Libraries Librarians cant escape it!

Circulating items InterLibrary Loan (borrowing and lending) Course reserve services Duplication equipment License agreements for electronic resources Archives Preservation Online access

Patrons with disabilities Your Role Be aware of library copyright issues Understand how the law applies to libraries Understand which laws may apply to the situation at hand

Have sound copyright policies to guide your use Library Copyright Policies Copyright Policies Having intuitional copyright policies can provide

guidance for staff when using copyrighted works Should be written in plain language so that its easily understandable Work with your institutions attorney Update often! Have Policies for.. Library copying for preservation and private study

InterlibraryLoan Use of orphan works-those works for which the rightsholder cannot be identified Licensing materials Digitization projects Accepting archival donations Copyright Policies for Making Copies for Preservation & Private

Study Reproduction by Libraries and Archives (17 U.S.C 108) Fair Use (17 U.S.C 107) Copyright Policies for Interlibrary Loan

First Sale Doctrine Rule of 5 vs. 17 U.S.C 108 Make sure you are not signing away your ability to lend through ILL in your license agreements! Copyright Policies for Orphan Works

Works for which the rightsholder cannot be identified Look to legal exceptions to make use of work No pending legislation regarding orphan works Copyright Policies for Licensing Materials

It is critically important that you negotiate license agreements, especially for electronic works. Negotiate, negotiate, negotiate! License will trump rights afforded under the law! Read, negotiate, track.

Copyright Policies for Library Digitization Projects You may need to write a new policy for each project! Copyright Policies for Donor Agreements for Archives Donations of rare/unique/historical items to

your archives can be very exciting Does the person donating the items also own the copyright? If not, who does? If so, are they willing to transfer it to you? Copyright & Accessibility Making alternate copies of works for patrons

who have disabilities Fair Use 110(8) Section 121 Other Library Copyright Issues

Film Screenings Any film screening where the public is invited is considered a public performance. As such, you must Purchase the film with public performance rights. Obtain a license for the screening. Are you charging a fee? Monetary fee vs. food or clothing donation

You cannot skip getting a public performance license simply because you are not charging an entrance fee! Story Time This can also be considered a public performance Consider fair use! Are there kits with puppets, recordings

with sound effects, coloring pages, etc. that can be purchased? 3D Printers Objects created using a 3D printer could infringe on copyright, patent, and trademark law. Have a policy in place to help guide the

use of your 3D printer. Warning Notice for 3D Printers http://www.ala.org/offices/sites/ala.org.office s/files/content/3D%20Printer%20Warning%2 0Notice%20for%20Libraries_TLEDITED.pdf Answering Copyright

Questions Recommendations Be careful to provide information rather than legal advice! Have quality resources (print, online) available that you can refer patrons/staff to.

Have policies in place that dictate the use of library equipment. Putting it all Together Why is this all important? Having a basic knowledge of the law will help you better understand your rights and

responsibilities in using protected works It is especially important in academia where we come are constantly having to deal with protected works as part of our regular job duties 11 7

Weve Got it Good There are many exceptions written into the law which allow us to use protected works for educational purposes Your part is to understand your rights and responsibilities under the law Questions?

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License .

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