Transcript CONFU - Conference on Fair Use

Copyright Tutorial
The Basics
Rosemary A. Chase
George Mason University Libraries
University Copyright Officer
What follows is a foundation for
the understanding of copyright law
and its many exceptions and
exemptions.
Unless one has a grasp of how it all
started, it is difficult to appreciate
the evolution it is experiencing.
But first…let’s begin with a
few safe assumptions…
What is Copyright?
… exclusive rights granted only to the
owners of original works.
Literary… musical… artistic…etc.
A set of EXCLUSIVE RIGHTS
Basis for Copyright
A little history…
 “To every cow, her calf.” An Irish king in
settling property rights in a manuscript.
 In the mid - 15th century with the
invention of the printing press, laws
were passed in London to control the
presses – and what was printed –
 Authors lose rights at first printing…
Basis for Copyright
A little more history…
By 1694, these same printing
institutions wanted Parliament to
grant them rights in
perpetuity…so, between the 16th
and 17th centuries, controlling print
content became control of print.
Basis for U.S.
Copyright
 In the early 18th century, authors were
given a 14 year exclusive term and the
opportunity to renew for an additional
14 years, if they were still living…
Statute of Anne: 1710
Model for U.S. Constitution, Article I, Section 8.
U.S. Constitution
Article I, Section 8:
“The Congress shall have Power…To
promote the Progress of Science and useful
Arts, by securing for limited Time to
Authors and Inventors the exclusive Right
to their respective Writings and
Discoveries.”
 Title 17 of U.S. Code - Federal Copyright
Law
Copyright...
 Work Must Be:
– Original expression
– Fixed in a tangible form
Begins:
–At the moment original work is fixed
Example: Graphic created in PhotoShop
is protected as soon as saved to disk.
Non-Protected Works
-Cannot be Copyrighted
Facts
Titles
Names
Short Phrases
Ideas
Public Domain
Non-Protected Works
Lost Copyright
Abandoned Works
Expired Copyright
Federal Government Works
Registration & Notice
Copyright may be registered
© Notice may be placed on work
Neither are required in order to
be “copyrighted”
§. 106: Owners have
exclusive rights to…
Reproduce - make copies
Make derivative works
Distribute - copies
Perform publicly
Display publicly
Statutory Exceptions
“Limitations on Exclusive Rights”
 Fair Use – section 107
 Reproduction by libraries and
archives – section 108
 Exemptions of certain performances
and displays – section 110
What is Fair Use?
It is the portion of a work which
is considered to be a fair amount
to reproduce for certain
fair purposes.
UHMM…could you be more specific?
The fair use statute (paragraph…) is in your
handouts.
§ 107. Limitations on
exclusive rights:
Fair use
“Notwithstanding the provisions of
section 106, the fair use of a copyright
work, including such use by
reproduction in copies or phonorecords
or by any other means specified by that
section, …
§ 107: Fair Use
…for purposes such as:
– criticism, comment, news reporting
– teaching (including multiple copies for
classroom use)
– scholarship
– or research
…is not an infringement of copyright.
§ 107: Fair Use
“In determining whether the use made
of a work in any particular case is a
fair use the factors to be considered
shall include…”
…all of these
(the famous “four factors”)
1.
2.
3.
4.
Purpose
Nature
Amount
Effect
All Four Factors must be considered
EQUALLY.
§. 107: Fair Use
 Purpose/Character of Use - commercial or
nonprofit educational?
 Nature of Work - fact or fiction?
 Amount and Substantiality - 10%??
 Effect of use on Market or Value
Agreement on Guidelines
for Non-profit Classroom
 From the House Report which accompanied
the Copyright Act of 1976
 Only considered contemporary technology
– i.e. photocopies & phono records
 The Guidelines (included in your handouts)
give examples, definitions and prohibitions.
Digital Millennium
Copyright Act…
Known as the DMCA
 Signed October 1998
 Intended to bring FAIR USE to the
digital environment but did NOT
DMCA
Digital Millennium Copyright Act
 What did it change?
– Reduced liability for OSPs (Online Service
Providers) such as libraries and other
technology providers for what their clients
do with institutional equipment –
DMCA
Digital Millennium Copyright Act
 Why should I be informed about the
DMCA?
– When our campus receives “cease & desist”
notices based on alleged infringement found on
Mason’s servers, closer scrutiny may not be far
behind…
– DMCA’s offer of reduced liability has
strings attached…
DMCA
Digital Millennium Copyright Act
– STIPULATIONS include
Institution agent required to register with the
Library of Congress to field complaints
Institution policy must be posted
Instruction on copyright and policy must be
offered
Posted notices required on equipment
Where is my fair use?
 TEACH Act – signed November 2002
 legalizing fair use for distance learning –
and other avenues for online publishing in
non-profit education…
TEACH Act
 Alters §110(2) to include Distance
Education & digital transmissions in
addition to “closed-circuit” T.V.
 Restrictions include:
– Limiting access to enrolled students
– Providing technology measures to prevent
retention of the work in accessible form
TEACH Act
 The GOOD NEWS
– Expands allowed works
• Display/performance of almost all
types
• Quantity limitations
– Expands receiving locations
• All locations – not just closed-circuit
T.V.
TEACH Act
More GOOD NEWS…
– Allows storage
• Retention and access for limited time
– Allows digitizing of analog materials
• Only if not already available in that
form
TEACH Act
 The BAD NEWS
– Law still based on “mediated instructional
activities”
– Institution must impose restrictions on access
– Encourages increased centralization of Distance
Learning course design and implementation
• …which may lead to increased content monitoring
• Raising issues of academic freedom
– Not the same broad rights as “face to face”
classroom allowances
TEACH ACT
For Instructors…
 What’s allowed
– “reasonable and limited portions” of dramatic
or non dramatic literary and musical works, “in
an amount comparable to that which is typically
displayed in the course of a live classroom
session.”
TEACH Act
For Instructors
 What’s off limits for digitization
– Anything marketed in that format
– Anything “not lawfully made and acquired”
under U.S. Copyright Act.
What has TEACH Act done for
Electronic Reserves?
 …nothing. Legislation specifically
excludes Electronic Reserves
 We continue to rely on the old
CONFU Guidelines to apply fair use
Electronic Reserves
CONFU GUIDELINES IN BRIEF
 Documents are accessible only by faculty name
and course
 Access is limited to currently enrolled students
and faculty
 Password is assigned to each instructor
 Faculty may LINK to electronic library reserves
from their department pages or personal pages
Electronic Reserves
 The first page of each reading/article must have a
full bibliographic citation.
 DMCA requirement: A copyright notice must
appear on the first page of each document to
accompany the complete citation (replaces the
generic stamp used for so many years: “This
material may be protected by copyright law, Title
17, U.S. Code.”)
Why isn’t everyone using
E-reserves?
 Most book chapters are not permitted when
permission is requested.
 Students say it takes too long to download
the readings.
 Professors still want to scan their required
readings onto web courseware… risky
business…
Using Course Ware
Q. Can I scan articles into WebCT without
getting permission? After all, it IS
password protected and no one can get to
it.
A. Only the first semester. We
recommend letting the Library do the
scanning and taking on the permissions
responsibility, not to mention the cost.
According to DMCA &
TEACH:
 it is your responsibility to:
– Inform your students of the restrictions
discussed today
– Instruct your students on proper attribution,
acknowledgments and citations to appear on
each reading copied
– Resist the temptation to turn a blind eye to
the portion limitations and systematic abuse
Liability Issues…
 You cannot be “directed by a higher
authority” to do anything that you suspect
would be an infringement.
 Intent to infringe is NOT required, to be
found liable.
 Copyright Policy protects the institution and
its faculty only if they have followed policy.
Question...    
Is it OK for faculty to photocopy for
their students the information they
have printed off the Web?
NO, not unless they have proof it’s PD.
Their only legal copy is the personal copy
printed/downloaded from the web site. Each
student should print out her own copy.
Question…..    
Can a professor use a student essay from
last semester in a collection of readings for
future semester course packet or reserves?
–Yes, but only with
express written consent from each
student author.
Question...     
Can a collection of photocopied
articles and book chapters (course
reader) ever be considered a
“fair use” for course reserves?
NO
Any compilation of previously
published readings is considered a
new publication.
Question...     
Can a stack of photocopied loose
articles and book chapters ever be
considered a
“fair use” for electronic reserves?
It might be, but only the first
time - independently accessed
by individual students.
Questions??????
Can we scan into ERS a set of maps?
Aren’t maps facts, like common knowledge?
NO and NO.
How about scanning in newspaper
articles – the newspaper is PD,
right?…
Wrong.
Question...     
Is an instructor allowed to put on reserve,
a photocopy of a textbook or workbook that
can be bought in the bookstore?
NO.
In conclusion
 We are not police officers, but we do have
responsibilities and should take them
seriously.
 Remember: These are not your personal
rules. But it is a good idea to promote
compliance. It is your responsibility to
uphold University policy & promote
academic integrity.
Bottom line…
 Educational purpose
– does NOT equal FAIR USE.
10% IS NOT ALWAYS FAIR USE.
OUT-OF-PRINT does NOT mean
out-of -COPYRIGHT.
WWW is NOT public domain.
University Copyright Office
http://library.gmu.edu/copyright
George Mason University Libraries
MSN 5D9 Johnson Ctr. Rm. 120
George Mason University
Fairfax, VA 22030-4444
Monday – Friday: 8:00 – 4:30
703-993-2544
[email protected]