Transcript COPYRIGHT IN THE DIGITAL AGE: Issues for Faculty Members Hunter College March 22, 2012

COPYRIGHT IN THE
DIGITAL AGE: Issues
for Faculty Members
Hunter College
March 22, 2012
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What is copyright?
A form of protection provided by federal law
to the author of an original work fixed in any
tangible medium of expression through which
the work can be perceived or communicated.
17 U.S.C. Sec. 102
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But, not just any work of
authorship . . .
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Original – Facts aren’t protected. Factual
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Fixed in a Tangible Medium of Expression –
compilations may be if there is originality in
selection, coordination or arrangement of data.
e.g., improvisational speech, a musical composition
or dance choreography is not protected until written
down, notated, recorded, etc.
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Sec. 102(a) Categories of Works
of Authorship
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Literary works (includes
computer programs)
Dramatic works
Pictoral, graphic &
sculptural works
Motion pictures & other
audio visual works
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Musical works
Pantomime &
choreographic works
Sound recordings
Architectural works
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What isn’t covered by copyright?
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Facts
Discoveries and ideas
Works in the public domain
U.S. Government works
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Who owns the copyright?
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Typically the creator of the work
Student work belongs to the student – you should not use it
without permission
Copyright can be jointly owned if there are multiple authors
Work-for-Hire exceptions (and CUNY exceptions to the
exception)
Collective Work: copyright in collective work is separate from that
in the individual contributions
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Joint Ownership –
Any Joint Creator can . . .
Modify, reproduce and distribute copies of the
entire work
 Grant a non-exclusive license to others
without the consent of the other co-creators
(but must share the profits)
 Transfer his/her interest to another without
the consent of the other co-creators
TAKE AWAY: Enter into a written agreement
with your co-authors
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Work-For-Hire (Sec. 101)
Work prepared by an employee within the scope of
employment OR work that has been specifically
ordered or commissioned for use as:
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A contribution to a
collective work
Part of a motion
picture or other audio
visual work
A translation
A supplementary work
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An instructional text
A test
Test answer material
An atlas
Sound recording
A compilation
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What are the copyright owner’s
exclusive rights?
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Reproduce in copies or phonorecords
Prepare derivative works
Distribute copies or phonorecords
Perform publicly. In the case of Sound Recordings,
this right is limited to performing publicly by digital
audio transmission (webcasting)
Display publicly
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When does copyright protection
attach to a work?
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Immediately, automatically, upon fixation in a
tangible medium of express
Registration with the Copyright Office is
voluntary, but gives owners the right to
statutory damages and attorneys fees
Use of a copyright notice is voluntary, but
generally forecloses a defense of innocent
infringement
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How long does copyright last ?
(U.S. Law)
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Works published before 1923 are in the public domain.
Works created on or after January 1, 1978 are protected
from the date when fixed for a term of life of the author
plus 70 years (or if work of corporate authorship, the
shorter of 95 years from publication, or 120 years from
creation.)
See chart prepared by Peter B. Hirtle, Cornell University
(http://copyright.cornell.edu/resources/publicdomain.cfm)
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Copyright Infringement
Any exercise of a copyright owner’s exclusive
rights without the permission of the owner
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Penalties and Remedies
Federal courts may:
 Issue an injunction
 Impound and destroy infringing articles
 Award actual damages and lost profits proven by
plaintiff
 Impose criminal penalties for willful infringement
 In the case of registered works, award attorneys fees
and costs. The copyright owner may also elect to
receive statutory damages of between $750-$30,000
for any one work, and up to $150,000 in case of
willful infringement.
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Innocent Infringer Rules
Sec. 504(c)(2)
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Court may reduce statutory damages to as little as
$200 if infringer was unaware and had no reason to
believe that use was an infringement.
Court shall remit statutory damages if the infringer
thought that use of copyrighted material was a fair
use AND the infringer was an employee of a
nonprofit educational institution acting within the
scope of employment.
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Limitations on Exclusive Rights
Sec. 107 - 121
Focus on two:
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Certain performances and displays for
educational purposes (Sec. 110)
Fair Use (Sec. 107)
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Use in Face-to-Face Teaching
Sec. 110(1)
Who: teachers and students at nonprofit educational
institutions
What: perform or display copyrighted works, including
showing lawfully made copies of movies and videos,
playing music, performing plays, showing art works, etc.
in the course of face-to-face teaching
Excludes: photocopying of materials for classroom use,
making course packs, on-line uses, and any other
reproduction, distribution or making of derivative works
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Transmission of Certain Works
Sec. 110(2) [TEACH Act]
Who:
Accredited nonprofit educational institutions
What: Teachers and students may transmit (e.g., via the internet):
 the performance of ALL of a non-dramatic literary or musical
work (poetry & short story readings [audio only], all music other than
opera, musicals and music videos)
 REASONABLE AND LIMITED PORTIONS of any other
performance (includes all audiovisual works, plays, opera, musicals
and other dramatic musical works)
 displays of any work in AMOUNTS COMPARABLE TO
TYPICAL FACE-TO-FACE displays (includes photographs and
other still images)
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Excludes:
 works produced or marketed primarily for use as
mediated instructional activities transmitted via digital
networks
 works the instructor knows or has reason to believe were
not lawfully made or acquired
 textbooks, course packs and other materials in any
media typically purchased by students for their independent
use
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Additional Conditions: The
performance or display must be:
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A regular part of a 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; and
For and technologically limited to students
enrolled in the class.
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Additional Conditions: CUNY
must:
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Have policies and provide information to the CUNY community about
copyright;
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Give notice that the materials used in the course may be protected by
copyright;
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Apply technological measures that reasonably prevent recipients from
retaining the works beyond the class session (not defined in the law) and
further distributing them.
In general, this means that controls must be in place so that a student
can’t maintain a copy of the work after logging out. The student may
return to the work repeatedly during the course, but can’t back up or store
the work outside of the course.
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Not interfere with technological measures taken by copyright owners that
prevent retention and distribution (but see new rule re hacking film clips).
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Digitizing Works
TEACH permits digitizing analog works under these conditions:
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The copies are kept only by the institution and used only for
the activities authorized by Section 110(2) ; and
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The work is not available in a digital version that is free from
technological protection.
Example: Section 110(2) authorizes the use of movie clips. If
you can’t rip from a DVD, you can digitize the clip from an
analog tape, but TEACH doesn’t permit you to digitize the
entire tape.
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TEACH ACT IN A NUTSHELL:
The TEACH Act is intended to cover
classroom-type instruction delivered on-line.
It does not cover materials an instructor may
want students to study, read, listen to or
watch on their own time outside of class. For
these uses, the instructor must look to the
principles of fair use.
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FAIR USE
Sec. 107
“The fair use of copyrighted work for
purposes such as criticism, comment, news
reporting, teaching (including multiple copies
for classroom use), scholarship, or research
is not an infringement of copyright.”
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Fair Use
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Supplements TEACH
Likely to be most useful in re supplemental
teaching materials not covered by TEACH
and materials for which it is difficult to get
permission because no ready market or slow
response times (i.e., movies and music)
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Four Factor Test
Not all educational uses are “fair use.” The
Copyright Law lists four factors to be considered:
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The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion of
the work used
The effect on the potential market for the work
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Where the Courts are going . . .
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Is the use transformative? Does it use the copyrighted
material for a broadly beneficial work different from that
of the original intent?
 E.g, educational use of entertainment material
 Addresses first 2 factors (purpose & nature)
Is an appropriate amount of the work being used, given
the nature of the work and the use?
 Address the 3rd factor (amount & substantiality)
If answer to both is “yes”, courts today are likely to find
use to be fair.
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Journal & News Articles
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TEACH doesn’t really apply
BEST: Link to an authorized copy, such as from a
database licensed by CUNY
Don’t pull text from a subscription website (WSJ) unless
Terms of Use permit
Do password protect
Don’t use journal article repeatedly without permission –
not transformative; generally OK w/news article so long
as most appropriate, relevant and timely
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Film Clips
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New rule allows all college faculty members, and film &
media studies students only, to break encryption on a
DVD to incorporate short portions of films into new works
for the purpose of criticism or comment, and where the
person engaging in the circumvention believes and has
reasonable grounds for believing that circumvention is
necessary to fulfill the purpose of the use
Rule only covers motion pictures – not other A/V material
(such as video games and slide presentations)
Not an entire work
“New work” could be podcast lecture with embedded
clips, a DVD with clips for in-class lecture
Unstated assumption that this is a “fair use”
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Entire Films
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No consensus in university legal community
TEACH refers to “reasonable & limited
portions” – legislative history hints that entire
film may be OK on rare occasions
Some argue that if permissible to show in
classroom, why isn’t it OK to stream if
password protected. Courts aren’t there yet.
Alternative: Make DVD or iTunes download
part of reading list
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Music
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TEACH permits use of complete nondramatic works and clips of other musical
works
Clips usually acceptable under Fair Use; less
clear with entire long works (operas) – see
Entire Film; consider having students
purchase work
Background music for podcasts, etc.: may not
be an educational or transformative use
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Photographs & Images
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ARTstor or other CUNY-licensed databases
If pulling from internet, make sure take from a legal
source – look at website terms of use
Consider images freely available for educational use
from various image libraries
TEACH permits “slide show” typical of Art History
course in physical classroom, but doesn’t cover
database of those images for “out-of-class” study
Use of “thumbnails” for educational purposes
generally considered by institutions to be a fair use
VRA Fair Use Statement
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Fair Use Good Practices
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Link to authorized sites and use freely available works
where possible
Own a legal copy or take from authorized sites
Remember that website terms of use are contracts
Use only as much as you need
Include copyright information
Password protect if possible
Apply technological controls against downloading
If you want to use repeatedly, get permission (unless use
is transformative and is the most appropriate, relevant
and timely material)
Follow any College rules & guidelines
Do the 4-factor analysis: can you justify the use?
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Resources
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OGC Copyright Materials:
http://www.cuny.edu/about/administration/offices/la/copyrightmaterials.html
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CUNY Libraries (C)opyright @ CUNY:
http://www.cuny.edu/libraries/services/copyright.htm
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Visual Resources Association: Statement on Fair Use
http://www.vraweb.org/organization/pdf/VRAFairUseGuidelinesFinal.pdf
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AU Center for Social Media Best Practices:
http://www.centerforsocialmedia.org/fair-use/best-practices
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Jane E. Davis, Esq.
Associate General Counsel
The City University of New York
[email protected]
212-794-5382
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