Transcript The Rules of the Road - Quinnipiac University

Librarians & Copyright
Law
The Basics
for Print and Electronic
Materials
Presenter Today
Arlene Bielefield, JD, MLS
Chair, Dept. of Information & Library
Science
Southern Ct State University
New Haven, CT 06515
Home Phone and Fax: (860) 349-1966
Office Phone: (203) 392-5781
Email: [email protected]
Great Sites
• Groton School System
www.groton.k12.ct.us/mts/pt2a.htm
• Copyright Office
www.loc.gov/copyright/
• Cyberspace law for Non-Lawyers
http://thunder1.cudenver.edu/www/copyright.ht
ml
More Great Sites
• Library reserve guidelines
www.utsystem.edu/OGC/IntellectualProperty/rs
rvguid.htm
 Fair use guidelines for educational multimedia
http://www.ninch.org/ISSUES/COPYRIGHT/F
AIR_USE_EDUCATION/CONFU/Multimedi
a.html
 When works pass into the public domain
www.unc.edu/~unclng/public-d.htm
Real Property
vs
Intellectual Property
Intellectual Property
 Patents
 Trademarks
 Copyrights
Historical Underpinning
U.S. Constitution gives Congress the
power to “promote the Progress of
Science and the useful Arts, by
securing for limited Times to
Authors and Inventors the exclusive
Right to their respective Writings
and Discoveries.” [Art. 1, Sec. 8]
U.S. Copyright Laws
 1790—Books, Maps, Charts
14 yrs, 1 renewal
 1831—added music
28 yrs
 1870—added printing, statues, fine arts
28 yrs
More U.S. Copyright Laws
• 1909—New duration of
28 yrs, 1 renewal
 1978
Latest law
Very different than earlier laws
Today Copyright Law is
Federal Law
Only!
No state law!
Copyright law parts
 IP clause of Constitution
 Title 17, U.S. Code
 Title 37, Code of Fed Regs (CFR)
 Court decisions
Venue--Federal Courts
1. District Court
Trial court, facts established
2. Circuit Court of Appeals
Challenge outcome of trial
3. U.S. Supreme Court
Final decision
Copyright around the Globe
 Is there an international copyright
Law? NO! But, there’s
 UCC
 Berne Convention
 Gatt Agreement
 Other trade agreements
© in the electronic world
Copyright Law applies to
materials found on the internet
and to electronic resources to
the same extent it applies to
materials in traditional formats.
Copyright Requirements
1. Original work of authorship;*
2. Fixed in a tangible medium of
expression.
*The original work of authorship must involve a
“modicum” of creative effort.
Unregistered Copyright
 With the fixation of an original
work of authorship in a tangible
medium of expression, the author
has a copyright but it is an
unregistered one.
 A copyright holder cannot sue
someone for infringement until the
copyright is registered.
To Register a Copyright
1. Complete appropriate form
2. Attach deposit copies
3. $30
 http://www.loc.gov/copyright/
Copyright Office
101 Independence Ave., S.E.
Washington, D.C 20559
Notice is no longer required!
U.S. Copyright law before 1989
required a notice such as this one:
Copyright © 2003 by Jane Jones
In 1989, that requirement was
eliminated.
What Can be Copyrighted?
 Literary Works
 Musical works, with words
 Dramatic works, with music
 Pantomimes, choreography
 Pictorial, graphic, sculptural
 Motion pics, other AV
 Sound recordings
What cannot be copyrighted?
 Ideas
 Facts
 Something already in the public
domain
 Procedures/Processes
 Systems, Operation Methods
 Concepts/Principles
 Discoveries
Works not covered by ©
 Those not fixed in tangible medium
 Works consisting entirely of
common property
 Federal docs
 Titles, names, short phrases,
slogans, familiar symbols or designs,
mere listings of ingredients or
contents
Duration
 Life of author plus 70 yrs
 Joint authors—life of last surviving
plus 70 yrs
 Works for hire—95 yrs from
publication or 120 from creation
© Bundle of Exclusive
Rights
Copyright holder has exclusive
right “to do and authorize:”
1. Reproduction (make copies);
2. Adaptation: new editions,
abridgements, etc.;
3. Public distribution: sale, lease,
rental, etc.;
More Exclusive Rights
4. Public performance: musicals,
dramas, choreography,
pantomimes, motion pics, other
AV;
5. Public display: Pictorial,
graphic, or sculptural works,
including the individual images
of a motion pic.
Exceptions to Exclusive
Rights
Works in public domain
Facts and Ideas
Fair Use (Section 107)
Reproduction & Distribution by
Libraries & Archives (Section
108)
What is Fair Use?
The “use” by someone other than
the copyright owner,
without the copyright owner’s
permission,
of a copyrighted work.
“Use” includes making a copy,
paraphrasing, quoting, etc.
No Need for ‘Fair Use’ if
you obtain permission to “use” a
copyrighted work.
Caveats:
-Obtain permission in writing.
-Be sure the person giving permission
has the authority to do so.
Purposes of Fair Use
Criticism &
comment
Scholarship or
research
Teaching
Preparation for
teaching
News reporting
Fair Use Factors Stated in
the Law and Used by Courts
1. Purpose & character of use;
2. Nature of copyrighted work;
3. Amount & substantiality of
portion used;
4. Effect of use on market for or
value of work.
Purpose & Character of
Use
Non-profit educational?
Commercial?
Mere copying?
Transformative?
Nature of Copyrighted
Work
Fiction?
Non-fiction?
Published?
Unpublished?
Amount & Substantiality
How much was taken?
What was taken?
If what was taken was the
“heart” of the work, a very small
amount could be too much.
But, All of the work is NOT TOO
MUCH sometimes!
Effect of Use on Value or
Market
Does the taking of the material:
Enhance the market? or
Diminish the market?
Enhance the value? or
Diminish the value?
(The courts consider this the
most important factor.)
Fair Use is considered the
Murkiest Part of the Law
n Congress recognized this at the time it
passed the law
n Congress gathered together concerned
parties at time law was passed
n These parties were asked to develop
Fair Use Guidelines
n These Guidelines have been a “safe
harbor” since 1978
[These Guidelines are part of the
House & Senate Reports]
Fair Use Guidelines
 Congress
realized fair use
guidelines were
needed
 They called
together
interested
parties
 Result: Fair Use
Guidelines for
--copying by
teachers for own
use
--classroom
copying
--classroom use of
videos
College Professors & the
Guidelines
No profs were included in the group that
developed the Guidelines
NYU decided to set their own guidelines
Publishers threatened to sue
NYU backed off and adopted the
Guidelines
Duke did same a couple of years later.
Objections to Guidelines
n Today, some groups that supported the
Guidelines, like the American Library
Association, are attacking them as too
restrictive.
n Their solution is to offer the four factors
used by the courts as guidelines.
n The four factors can be tricky to apply.
Print Reserves
• No time for that?
 Used to be
Consider 4 Fair
guidelines for
Use factors
reserves
• No. of copies
 Now, reserves
allowed?
considered
Consider:
restrictive form of
classroom copying
# of students
• Get permission if
and time
possible
remaining in
semester
Classroom Copies, #1
A teacher may make 1 copy*, for
each student, of a :
1. Chapter from a book;
2. Periodical/newspaper article;
3. Short story, essay or poem;
4. Chart, graph, diagram, cartoon,
pic from book, periodical or
newspaper.
*A copyright notice must appear on
each and every copy! DMCA
Classroom Copies, #2
No copying of consumables
No making of anthologies or
compilations
No more than 9 instances for 1 class
in 1 class term
Limits on amounts and types of
materials
No term to term use of same material
for same class
Fair Use in Electronic
Environment
Some Guidelines PLEASE!
-Reserves
-Distance Learning
-Electronic ILL
-Digital Imaging
-Internet
-Multimedia
Electronic Reserves #1
The print reserves factors apply
In addition, copyright
information should appear on
first screen
Include warning against further
distribution by user
Include citations or attributions
prominently
Electronic Reserves #2
 Limit access via passwords or other
security measures
 Must get permission from © holder
for subsequent use in new term
 Retain material in electronic form
while seeking permission
 Students who have not completed
the course during term may access
the material to complete their work
Last but not Least!
Section 504©(3) states, in part:
The court shall remit statutory damages in
any case where an infringer believed and
had reasonable grounds for believing that
his or her use of the copyrighted work was
a fair use under section 107, if the
infringer was:
an employee or agent of a nonprofit
educational institution, library, or archives
acting within the scope of his or her
employment… .
Moral: Know the Fair Use Doctrine!