Transcript COPYRIGHT
© Copyright
Concepts & Misconceptions Duane Harbin 8 November 2002 © 2002, Duane Harbin
Scope Notes: Repeat after me: “Duane is not a lawyer and cannot give me legal advice.” United States only Selective, not comprehensive
Why are we talking about copyright?
Valuable corporate property may soon enter the public domain Changes in technology have upset the balance between the cost of compliance and the ease and quality of copying The existing conventions of copyright do not fit new media
What exactly is copyright?
Legal protection for authors of original works, reserving their rights to: To reproduce the work To prepare derivative works To distribute the work To perform the work publicly To display the work publicly
What governs copyright?
The Constitution Federal Statutes & Regulations Case Law International Treaties BUT NOT Conventions & Guidelines
The Constitution Article 1, Section 8: “The Congress shall have power… 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.”
Federal Statutes & Regulations U.S. Copyright Act of 1976 (Title 17) Sonny Bono Copyright Term Extension Act of1998 Digital Millennium Copyright Act of 1998
International Treaties Berne Convention: as of 1988 World Intellectual Property Organization (WIPO) Treaty: 1996
Conventions & Guidelines National Commission on New Technological Uses of Copyrighted Works (CONTU): 1976 Conference on Fair Use (CONFU): sponsored by the Working Group on Intellectual Property Rights: 1994
How long does copyright last?
Steamboat Willy – 1928
How long does copyright last?
For works created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author’s death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first;
How long does copyright last?
For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047;
How long does copyright last?
For pre-1978 works still in their original or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured.
Case Law 2002: Eldred v. Ashcroft
What can be protected by copyright?
“Original works of authorship” that are fixed in a tangible form of expression, including the following categories: Literary works; Musical works, including any accompanying words Dramatic works, including any accompanying music Pantomimes and choreographic works
What can be protected by copyright?
Pictorial, graphic, and sculptural works Motion pictures and other audiovisual works Sound recordings Architectural works
What cannot be protected by copyright?
Works that have
not
tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded) been fixed in a
What cannot be protected by copyright?
Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
What cannot be protected by copyright?
Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
What cannot be protected by copyright?
Works consisting
entirely
of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
Case Law 1991: Feist Publications v. Rural Telephone Service Company, Inc.
What is “Fair Use?” Certain use of copyrighted material without the permission of the copyright owner is not infringement. Such use is known as “Fair Use” Under §107 of Title 17, Fair Use includes criticism, comment, and news reporting
What is “Fair Use?” §107 of Title 17 stipulates four factors to consider in determining Fair Use: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The effect of the use upon the potential market for or value of the copyrighted work.
Statutory Exceptions for Education & Libraries §107 of Title 17 specifically describes as Fair Use: Teaching (including multiple copies for classroom use Scholarship Research SUBJECT TO the criteria mentioned above.
Case Law 1991: Basic Book, Inc. v. Kinko’s Graphics Corp. – 1991 1992-1995: American Geophysical Union v. Texaco 1993: Playboy Enterprises, Inc. v. Frena 1994: Campbell v. Acuff-Rose Music, Inc.
Statutory Exceptions for Education & Libraries §108 of Title 17 allows libraries and archives to make individual copies of print works for users, interlibrary loan, preservation, and replacement, PROVIDED … The copy is not for commercial use Collections are open to the public or available to researchers The copy includes notice of copyright
Statutory Exceptions for Education & Libraries §108 limitations for PRESERVATION Item must be from the library or archive’s collections Digital copies may NOT be made accessible outside the library
Statutory Exceptions for Education & Libraries §108 limitations for REPLACEMENT A suitable replacement cannot be located at a fair price with reasonable effort Digital copies may NOT be made accessible outside the library
Statutory Exceptions for Education & Libraries §108 limitations for USER REQUESTS & INTERLIBRARY LOAN Copies are limited to a single article or “small part” of a copyrighted work Copies become the property of the requester Copies must display copyright notice
Statutory Exceptions for Education & Libraries §108 limitations for USER REQUESTS & INTERLIBRARY LOAN Copies of complete works or substantial portions are permitted IF after reasonable investigation, the library determines that a copy is NOT available at a fair market price
Statutory Exceptions for Education & Libraries §108 limitations for USER REQUESTS & INTERLIBRARY LOAN Libraries are not liable for copyright infringement if public reproduction equipment bears a copyright warning This does not exempt individual library clients from liability for copyright infringement
Statutory Exceptions for Education & Libraries Other provisions of §108 Libraries may not engage in “systematic reproduction” nor fulfill requests they have cause to believe will result in systematic reproduction of copyrighted works Libraries may not engage in copying as a means of avoiding subscribing to or purchasing copyrighted materials
Statutory Exceptions for Education & Libraries Other provisions of §108 The “Final 20 years” For purposes of preservation and replacement, §108 also applies to musical, graphic, or audiovisual works
Copyright & Contract/License Rights reserved to the copyright owner may be assigned by contract.
Rights not covered by the contract are
not
affected by the contact.
BUT you do not necessarily need to hold copyright to something to sell it under license.
Copyright Law vs. Contract Law Copyright is controlled by federal & international law Contract law is controlled by local jurisdictions Contracts
must
be negotiable
Fair Use in the Digital Age?: DigitalConsumer.org’s BILL OF RIGHTS 1. Users have the right to "time-shift" content that they have legally acquired. This gives you the right to record video or audio for later viewing or listening. For example, you can use a VCR to record a TV show and play it back later.
Fair Use in the Digital Age?: BILL OF RIGHTS (continued) 2. Users have the right to "space-shift" content that they have legally acquired. This gives you the right to use your content in different places (as long as each use is personal and non-commercial). For example, you can copy a CD to a portable music player so that you can listen to the songs while you're jogging.
Fair Use in the Digital Age?: BILL OF RIGHTS (continued) 3. Users have the right to make backup copies of their content.
This gives you the right to make archival copies to be used in the event that your original copies are destroyed.
Fair Use in the Digital Age?: BILL OF RIGHTS (continued) 4. Users have the right to use legally acquired content on the platform of their choice.
This gives you the right to listen to music on your Rio, to watch TV on your iMac, and to view DVDs on your Linux computer
Fair Use in the Digital Age: BILL OF RIGHTS (continued) 5. Users have the right to translate legally acquired content into comparable formats. This gives you the right to modify content in order to make it more usable. For example, a blind person can modify an electronic book so that the content can be read out loud.
Fair Use in the Digital Age?
BILL OF RIGHTS (continued) 6. Users have the right to use technology in order to achieve the rights previously mentioned. This last right guarantees your ability to exercise your other rights. Certain recent copyright laws have paradoxical loopholes that claim to grant certain rights but then criminalize all technologies that could allow you to exercise those rights. In contrast, this Bill of Rights states that no technological barriers can deprive you of your other fair use rights.