COPYRIGHT

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Transcript COPYRIGHT

© Copyright
Concepts & Misconceptions
Duane Harbin
15 November 2002
© 2002, Duane Harbin
URL for this presentation:
http://people.smu.edu/dharbin/
Scope Notes:
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
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?
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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:
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To
To
To
To
To
reproduce the work
prepare derivative works
distribute the work
perform the work publicly
display the work publicly
What governs copyright?
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The Constitution
Federal Statutes & Regulations
Case Law
International Treaties
BUT NOT
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Conventions & Guidelines
The Constitution
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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
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U.S. Copyright Act of 1976 (Title 17)
Sonny Bono Copyright Term Extension
Act of1998
Digital Millennium Copyright Act of 1998
Technology, Education and Copyright
Harmonization (TEACH) Act of 2002
International Treaties
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Berne Convention: as of 1988
World Intellectual Property Organization
(WIPO) Treaty: 1996
Conventions & Guidelines
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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?
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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
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2002: Eldred v. Ashcroft
What can be protected by
copyright?
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“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?
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
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual
works
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Sound recordings
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Architectural works
What cannot be protected by
copyright?

Works that have not been fixed in a
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)
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
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1991: Feist Publications v. Rural
Telephone Service Company, Inc.
What is “Fair Use?”
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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?”
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§107 of Title 17 stipulates four factors to
consider in determining Fair Use:
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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.
Case Law
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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
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§107 of Title 17 specifically describes as Fair
Use (subject to the four factors):
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Teaching (including multiple copies for classroom
use
Scholarship
Research
§110(1) exempts performances for face-toface teaching in non-profit educational
institutions
Statutory Exceptions for
Education: The TEACH Act
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§110(2) now allows:
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Transmitting a performance of all of a nondramatic literary or musical work
Transmitting reasonable and limited
portions of any other performance
Transmitting displays of any work in
amounts comparable to typical face-to-face
displays
Statutory Exceptions for
Education: The TEACH Act
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Exceptions:
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Applies only to accredited, nonprofit,
educational institutions
Does not apply to works produced or
marketed primarily for in-class use in
digital distance education
Does not apply to materials made or
acquired unlawfully
Statutory Exceptions for
Education: The TEACH Act
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Exceptions:
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Does not apply to textbooks or
coursepacks students would typically
purchase
Covers only works an instructor shows or
plays during class; NOT to out of class
assignments
Statutory Exceptions for
Education: The TEACH Act
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CONDITIONS: The performance or display
must be …
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A regular part of systematic mediated
instructional activity
Made by, at the direction of, or under the
supervision of the instructor
Directly related and of material assistance to the
teaching content
For and technologically limited to the students
enrolled in the class
Statutory Exceptions for
Education: The TEACH Act
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CONDITIONS:The institution must …
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Maintain policies and provide information on the
use of copyrighted material and give notice that
material may be copyrighted.
Apply technology that reasonably prevents
students from retaining and further distributing
material beyond the class session
Not interfere with technological measures applied
by copyright owners to prevent retention and
distribution
Statutory Exceptions for
Education: The TEACH Act
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§112(f) permits instructors to copy digital
works and digitize analog works if …
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Copies are retained only by the institution and
used only for the activities authorized by §110
Analog works may be digitized only if no digital
version is available free of technological
protections that would prevent uses authorized
under §110
Resources on the TEACH Act
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http://www.utsystem.edu/ogc/
intellectualproperty.htm
http://www.educause.edu/ir/library/
pdf/ERM01610.pdf
http://www.ala.org/washoff/teach.html
Statutory Exceptions for
Libraries
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§108 of Title 17 allows libraries and
archives to make individual copies of
print works for users, interlibrary loan,
preservation, and replacement,
PROVIDED …
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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
Libraries
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§108 limitations for PRESERVATION
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Item must be from the library or archive’s
collections
Digital copies may NOT be made accessible
outside the library
Statutory Exceptions for
Libraries
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§108 limitations for REPLACEMENT
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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
Libraries
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§108 limitations for USER REQUESTS &
INTERLIBRARY LOAN
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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
Libraries
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§108 limitations for USER REQUESTS &
INTERLIBRARY LOAN
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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
Libraries
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§108 limitations for USER REQUESTS &
INTERLIBRARY LOAN
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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
Libraries
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Other provisions of §108
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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
Libraries
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Other provisions of §108
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The “Final 20 years”
For purposes of preservation and
replacement, §108 also applies to musical,
graphic, or audiovisual works
Digital Millennium Copyright
Act
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New §1201 of Title 17 divides
technological means into two
categories:
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Those that prevent unauthorized access to
copyrighted material
Those that prevent unauthorized copying
of copyrighted material
Only access is prohibited to protect Fair
Use
Digital Millennium Copyright
Act
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§1201 prohibits making or selling devices or
services for either type of circumvention if:
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They are primarily designed or produced to
circumvent
They have limited commercial purpose or use
other than circumvention
They are marketed for use in circumvention
BUT manufacturers are not required to actively
implement any counter measures (except
Macrovision)
Digital Millennium Copyright
Act
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§1201 explicitly does NOT …
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Affect the rights, remedies, limitations, or
defenses to infringement, including Fair
Use
Enlarge or diminish vicarious or
contributory copyright infringement
Digital Millennium Copyright
Act
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Exceptions to §1201:
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Good faith determination to obtain access for
nonprofit libraries, archives, and educational
institutions
Reverse engineering for interoperability
Encryption research
Protection of minors
Personal privacy
Security testing
Digital Millennium Copyright
Act
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§1202 of Title 17 protects Copyright
Management Information (CMI),
specifically prohibiting:
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Removing, altering or falsifying CMI
Knowingly distributing material with false
or altered CMI
… with intent to induce, enable,
facilitate or conceal infringement
Digital Millennium Copyright
Act
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§1204 makes violation of §1201 or
§1202 a criminal offense
Nonprofit libraries, archives and
educational institutions are entirely
exempted from criminal liability
Digital Millennium Copyright
Act
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New §512 provides new limits to liability
for online service providers, including
nonprofit educational institutions for:
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Transitory communications
System caching
Storage of information at the direction of
users
Information location tools (e.g. hyperlinks,
search engines, etc.)
Digital Millennium Copyright
Act
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In addition, §512(e) exempts nonprofit
educational institutions of liability for
infringement by faculty or graduate students
performing a teaching or research function if:
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Infringing activities do not provide access to
course materials required or recommended in the
past three years
The institution has not received more than two
notifications of the infringement in three years
The institution provides all users with information
describing and promoting copyright compliance
Copyright & Contract/License
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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
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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
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1. Users have the right to "time-shift"
content that they have legally acquired.
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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)
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2. Users have the right to "space-shift"
content that they have legally acquired.
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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)
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3. Users have the right to make backup
copies of their content.
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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)
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4. Users have the right to use legally
acquired content on the platform of
their choice.
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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)
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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)
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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.