Transcript Copyright 2000 - Sharing Information in the Digital Age

Copyright Law on Campus
Marc Lindsey
Copyright Specialist-WSU
Washington State University Board of Regents © 2007
Introduction:
How Copyright Impacts Campus Life
• Teaching Materials
• Student Assignments: Plagiarism or
Infringement?
• Web Sites
• Thesis and Dissertation Publishing
• Research
• Entertainment: RIAA’s War on File Sharing
What Does Copyright Protect?
Generally anything of an artistic nature. This includes
research and any academic work. The copyright statue
specifically names:
• Literary works
• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic work
• Pictorial, graphic, and sculptural works
• Motion pictures and audiovisual works
• Sound recordings
• Architectural works
Three Elements of Copyright
Copyright protects an expression
of an idea that:
1. Is fixed in a tangible medium,
2. Is original, and
3. Creative
Application of Copyright
to Photographs
Burrow-Giles Lithographic Co.
v. Sarony - S. Ct. 1884. The first
case to recognize that
photographs are sufficiently
original to be protected as
artistic works.
Application of Copyright
to Cartoons
Walt Disney Productions v. The
Air Pirates (9th CA 1978).
Cartoons are protected because
they “…contain unique
elements of expression.”
What is Not Protected
• Materials Not Creative Enough
• Unexpressed Ideas
• Expired Copyrights ("Public Domain")
• Works Copied as Fair Use
Idea/Expression Dichotomy
Mere ideas are NOT protected by copyright.
Examples of stolen ideas:
• Canterbury Tales – Chaucer took the idea from
Italian author Boccaccio
• Harry Potter –Dimitri Yernetz got the idea from J.K.
Rowling when she wrote a book about a young
magician named “Tanya Grotter.”
• Vanilla Sky – Cameron Crowe’s movie was a
remake of “Open Your Eyes.” Penelope Cruz
stared in both.
When Copyright
Protection Springs
Into Existence
The moment the artistic idea is
transferred to a fixed medium.
Another way to explain it is,
when the expression of the idea
can be related to others.
Duration of Copyrights
For works created on or after
January 1, 1978, the term is life of
author plus 70 years (or if
copyright owner is a corporation,
95 years from publication, or 120
years from creation whichever is
first.
Materials in the Public Domain
• Created before 1923, (Copyright expired)
• Created before January 1, 1978 without the
Copyright Notice, (Copyright Lost)
• Created by the U.S. Government
• Created by others who donate the work to Public
Domain
How Does Copyright Protect?
Copyright Infringement:
1. Someone Copies Someone Else’s Work that IS
Protected;
2. Without the Creator’s Permission; and
4. Copying Does Not Qualify as Fair Use or Other
Statutory Exemption From Copyright
Artists’ Exclusive Rights
Creator of a work is only one who can:
• Make a copy of it;
• Make a derivative or revision;
• Distribute or publish the work;
• (for poems, songs, plays or movies) perform the
work in public;
• (for paintings, graphics, photos, sculptures)
display the work in public.
The Copyright
Infringement Lawsuit
• Filed in federal court
• Expensive to defend
• Impossible for most to pay any judgment
• Judgment is forever unless paid or
discharged in Bankruptcy
Three Ranks of Liability
• Direct: The person who downloads files or
hosts any sites that permit others to
download files.
• Contributory: Any person who
encouraged or assisted the downloading.
• Vicarious: Anyone who supervised and
had financial interest in downloading.
Specifically the University Internet Service
Provider.
Civil Damages
• Actual damages, i.e., lost profits
• Statutory damages from $750 to $30,000 per
infringing copy
• If copying found “willfully” $150,000 for each
infringing copy
• Attorney’s fees if copyright was registered
NO ELECTRONIC THEFT ACT (NET)
Federal crime to intentionally copy software, movies or music
if value of original exceeds $1000 OR
Person copying expects to receive files in return.
$1000 - $2500 = one year in prison
Over $2500 = up to five years in prison.
When Infringement
May Occur on Campus
• Course Assignments
• Designing and Posting Web Pages
• Music and Videos for Education
• Music and Videos for Recreation
• Down Loading and Using Material From the
Internet
• Email and Attachments
Plagiarism is:
From the Syllabi of Bruce Terry, Ohio Valley University
• The presentation of another’s work as your own,
whether you mean to or not.
• Copying or paraphrasing passages from another’s
work without acknowledging that you’ve done so.
• Translating passages from another’s work in another
language without acknowledging that you’ve done so.
• Copying another writer’s work without putting the
material in quotation marks even if credit is given.
• Allowing another writer to write any part of your essay
is plagiarism .
How to Avoid Plagiarism
1. Quote all words, phrases or other
expressions from other authors you use;
and
2. Acknowledge the source.
How to Detect Plagiarism:
Helpful Websites
• /www.ncusd203.org/central/html/where/plagiarism_
stoppers.html
• /turnitin.com/static/home.html
• /www.plagiarism.org/
Plagiarism vs. Copyright Infringement
• Work can be plagiarism but not copyright
infringement
• Work can be copyright infringement but not
plagiarism
• Work can be both infringement and plagiarism
When copying or down loading
their work is ok
• You have their permission - the safest
bet
• The work is so old it has lost its
copyright
• The work was created by the
government - not a lot to be found
• The copying is permitted by a mystic
principle known as “Fair Use”
Getting Permission the Real Safe Harbor
• Copyright Clearance Center
• (978) 750-8400
• www.copyright.com
• Directly from author/publisher
Information You Need to Ask
for Permission to Copy
• Title of the work
• Date or edition of the work
• Name of the author or artist
• Portion of the work you intend to copy
• Standard number (ISSN, ISBN or LCCN)
Procedure for Getting Permission
• Contact Copyright Clearance Center
• Online: click Short Form, follow instructions.
(Reference WSU Account)
• Wait for permission. Immediately if done
online. 24 Hours by fax.
• Must use credit line: (Author) © (Year)
Reprinted by permission.
• Cost: $.0075 x (no. of pages) x (no. of copies)
What is Fair Use?
“Fair use is one of the most
unsettled areas of the law. The
doctrine has been said to be so
flexible as virtually to defy
definition.”
Princeton University Press v.
Michigan Document Services, Inc.
Making unauthorized copies is OK
if it is Fair Use
17 U.S.C. §107
“[T]he fair use of a copyrighted work,
including such use by reproduction in
copies…for purposes such as criticism,
comment, news reporting, teaching
(including multiple copies for classroom
use), scholarship or research, is not an
infringement of copyright.”
The factors in §107 that are used
to determine Fair Use
• Nature of the copyrighted work
• Amount and substantiality of portion used in
relation to the copyrighted work as whole
• Effect of the use upon potential market for or
value of copyrighted work
• Purpose and character of use, (nonprofit vs.
commercial)
Purpose and Character of the Use
• Nonprofit – Fair use
• Commercial – Not fair use
• Educational – Fair use
• Entertainment – Not fair use
• Transformative (new work, e.g. Parody) –
Fair use
• Substitute for original – Not fair use
Nature of the Materials Copied
• Factual or scientific – Fair Use
• Fiction or dramatic – Not fair use
• Unpublished – Not fair use
• Published – Fair use
• Published but out-of-print – Fair use
Amount of the
Copyrighted Work Copied
Consider qualitative value as well as quantitative
> 50% but not “heart of the work” –
Fair use
< 10% but is “heart of the work” –
Not fair use
Photos
The Commercial Effect
• Educational use that doesn’t substitute for
original – Fair Use
• Copies diminish sales of original work
- Not fair use
• Copies diminish sales in potential market
- royalty market?
Multiple Emails of Entire Article
for Class
Purpose of copies?
Nature of materials copied?
Amount of original copied?
Commercial effect?
Likely to be Fair Use:
Posting a copy of any of the following on a
password protected web site for class:
1. A chapter from a book
2. An article from a periodical or newspaper
3. A short story, short essay, or short poem,
whether or not from a collective work
4. A chart, diagram, graph, drawing, cartoon,
or picture from a book, periodical, or
newspaper
The Federal Courts:
What is not Fair Use
• Production of course packs for sale to
students? Not Fair Use. Basic Books, Inc. v.
Kinko’s Graphic Corp (S.D.N.Y. 1991).
• Multiple copies of entire scientific journals
for research staff in corporate research
department? Not Fair Use. American
Geophysical Union v. Texaco Inc. (2d Cir.
1995).
The 9th Circuit : What is not Fair Use
• Multiple copies of 50% of Cake Decorating Book
for class? Not Fair Use. Marcus v. Rowley (9th Cir.
1983).
• Multiple copies of certain clips from News Station’s
video of plane crash (less than 10%) for customers’
research? Not Fair Use. Los Angles News Service
v. Tullo (9th Cir. 1992).
Most Recent Federal Case:
Not Fair Use
Multiple copies of course packs for class.
Excerpts of text books( 5%-30%). Students
reimburse professor for copies. Princeton
University Press v. Michigan Document
Service, Inc. (2d Cir. 1996) Cert. Den’d 1997
Likely Not Fair Use:
• Multiple copies of entire book, periodical,
newspaper, or collective work
• Multiple copies of test forms
• Students in class charged a fee to cover
copy expenses
• Downloading music or movies from the
Internet for entertainment
Between likely Fair Use
and Not Fair Use:
The Fair Use Continuum
• 1 copy each of
3 chapters in a book from the
library?
• 1 copy each of 5 photographs from a book you
purchased for class research?
• 1 copy of a Far Side cartoon because you like
it?
• Down load an entire single from Garth Brook’s
latest CD for posting on your personal web
page?
Digital Millennium Copyright Act
(“DMCA”)
• Prohibits hacking or “circumvention” of any
protection of Intellectual Property, e.g. a DVD, for
copying or reverse engineering
• Grants Internet Service Providers (includes all
colleges) immunity from money judgments in
copyright infringement suits ONLY if certain
procedures are observed.
DMCA Procedures for Immunity
• Register a DMCA claim agent with the U.S. Copyright
Office;
• Post a notice of copyright policy warning users that internet
services may be terminated for repeat copyright
infringement;
• Provide all college internet users an education in copyright
law;
• “Take Down” procedures when DMCA Claim is received.
TEACH Act: 17 USC Section 110
New Law in Distance Education
Permission is not needed to transmit by closed
website:
• Entire performances of “nondramatic” literature
or music; and
• “Reasonable portions” of any other works.
TEACH Act: Numerous Limitations
There are some 22 conditions for qualifying materials and
activities for copyright exemption. Some of the more important
are:
• Only accredited non-profit educational institutions with a
copyright policy and education program qualify.
• Cannot use any materials that are sold specifically for digital use
in class rooms.
• See check lists for other conditions:
- www.lib.ncsu.edu/scc/legislative/teachkit/checklist.html
- www.copyright.iupui.edu/teachlist.htm
Copyright and Internet:
Copying “FAQs”
• Cannot copyright commonly used words or
phrases used to compose FAQs.
• FAQs are stereotypical format.
• Additional similarity (between original and copy)
beyond generic formatting required to establish
copyright infringement.
Mist-On Systems, Inc v. Gilley’s European Tan Spa
Copyright and Internet:
Uploading “Thumbnail” Images
• Uploading any content = making a copy
• Uploading thumbnail images for search engine
data is fair use and OK.
• Purpose of copies is transformative or for entirely
new utility.
Leslie Kelly v. Arriba Soft Corp.
Copyright and Internet:
Hyperlinking or Deep Linking
• Is not copyright infringement by itself because
there is no copying taking place.
• Might be “Tortuous Interference.”
• Avoid hyperlinking pages that have significant
advertising on Home page.
Ticketmaster Corp. v. Tickets.com, Inc.
Copyright Piracy
• Infringement committed “willfully and
for…commercial advantage.” 17 USC 506a
• Most common piracy includes mass production
and sale of boot leg cassette tapes, computer
software, concert T shirts.
• Punishable by fine of $250,000 or jail term up to 5
years, or both. 18 USC 2319
Copyright Policy
• Compliance with Law
• Good faith fair use analysis
• Sovereign
Immunity: Chavez Case
• Work with College Legal Counsel
• Comply with DMCA?
Copyright Policy
• Publish Guidelines? (permissions/fair use)
• Designate Copyright
“Guru?”
• Establish central permissions? (giving and getting)
• Use TEACH Act Procedure?
• Advocate Self Created Teaching Materials
Sovereign Immunity: The Chavez Case
• It is unconstitutional to sue state institutions for
copyright infringement. (11th Amendment)
• State colleges are immune from these lawsuits.
• However, individuals (faculty, staff), are not
immune.
• There is very little economical incentive to sue
individuals.
• There will soon be legislation that induces colleges
to waive immunity.
Copyright Guidelines
Materials or activities most likely to involve copyright issues:
1. Course Pack or any substitute for primary class text book.
Exhibit A.
2. Ancillary Material (do not substitute primary text book)/Reserve
Materials. Exhibit B.
3.Password protected class web sites.
Exhibit C
4. Open web sites including blogs, wiki. Exhibit D
More Resources on Copyright Law
• Copyright Law On Campus by Marc Lindsey
available from WSU Press, 335-3518 0r
[email protected]
• http://publishing.wsu.edu/copyright
• http://fairuse.stanford.edu
• www.utsystem.edu/ogc/intellectualproperty/cprtind
x.htm#top
• WSU Copyright Specialist
[email protected]
- (509) 335-1214
Presentation Conclusion
Thanks for Attending
Call (509) 335-1214
For Questions or Further Information