Copyright and

Fair Use

Copyright Defined

• From Merriam Webster’s Online Dictionary:copy·right: the exclusive legal right to

reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)

• From Dictionary.com:copy·right: … the legal right granted to an

author, a composer, a playwright, a publisher, or a distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.

10 Myths to Explore…

http://www.templetons.com/brad/copymyths.html

What Is Copyright?

• a form of protection provided by the laws of the United States (title 17, U. S. Code)

• given to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.

• protection available to both published and unpublished works.

Granted by the U.S. Constitution

Article 1 The Legislative Branch Section 8 Powers of Congress

• Congress shall have Power....…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…

Article 1 Section 8 Key points:

• Science and arts should be encouraged • The purpose of copyright is creation and dissemination

of knowledge • Congress is granted the power to encourage creation of

new works, but only via a very specific method, by granting authors and inventors exclusive rights

• Rights granted are for a limited time • That authors and inventors benefit from copyright is a

side effect of encouraging the dissemination of knowledge, NOT a direct intent of copyright

• The rights of authors and inventors are granted by Congress and are NOT intrinsic or natural

from Complete Copyright: an Everyday Guide for Librarians by Carrie Russell, ed. American Library Association

Copyright Act of 1976

Generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords

• To prepare derivative works based upon the work

• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending

• To perform the work publicly**

• To display the work publicly**

**in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work

• To perform the work publicly by means of a digital audio transmission (in the case of sound recordings)

Copyright Act of 1976 continued

“Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Common examples include: recordings of music, drama, or lectures. •A sound recording is not the same as a phonorecord.•A phonorecord is the physical object in which works of authorship are embodied. •The word “phonorecord” includes cassette tapes, CDs, LPs, 45 r.p.m. disks, as well as other formats.

Note: Sound recordings are defined in the law as :

What is covered?

• Literary• Musical• Dramatic• Pantomimes• Sound recording*• Architectural work• Internet• Choreographic work

The expression of an idea, not the idea itself

“fixed in any tangible medium of expression”

What is not covered?

• Names

• Titles

• Slogans

• Ideas

Trademarks can protect these

• Concepts• Procedures • Processes

• Facts and works consisting entirely of information that is common property and containing no original authorship such as – standard calendars– height and weight charts– tape measures and rulers– lists or tables taken from public documents or other

common sources

What is not covered?

Patents protect these

What is not covered?

• Works in the Public Domain

A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone.  The reasons that the work is not protected include:

(1) the term of copyright for the work has expired(2) the author failed to satisfy statutory formalities to perfect the copyright (3) it is a work of the U.S. Government.

Who Can Claim Copyright?

• The copyright immediately becomes the property of the author (or those deriving their rights through the author) who created the work whether the work has been published or not.

• The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

• Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

• Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors.

• In the case of works made for hire, the employer and not the employee is considered to be the author

Who Can Claim Copyright?Section 101 of the copyright law defines “work made for hire” as:

1. a work prepared by an employee within the scope of his or her employment

2. a work specially ordered or commissioned for use as: • a contribution to a collective work • a part of a motion picture or other audiovisual work • a translation • a supplementary work • a compilation • an instructional text • a test • answer material for a test • an atlas

Duration of Copyright

Prior to 1978• Materials are

protected 75 years from date of publication

• or 100 years from the date of creation-(which ever expires first)

After 1978• Materials are

protected at the time of creation and lasts 50 years after the death of the author/creator

Notice of Copyright

• No longer required (eliminated effective March 1, 1989) under law, although it is often beneficial

• Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication.

Notice of Copyright

For Visually Perceptible Copies should contain:

1. The symbol © or the word “Copyright,” or the abbreviation “Copr.”

2. The year of first publication of the work 3. The name of the owner of copyright in the

work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: © 2006 John Doe

Notice of Copyright

For Phonorecords embodying a sound recording should contain:

1. The symbol (the letter P in a circle)

2. The year of first publication of the sound recording

3. The name of the owner of copyright in the soundrecording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice.

Example: 2006 A.B.C. Records Inc.

FAIR USE “allowing portions of copyrighted work to be used without the authors permission.”

One of the more important limitations on the copyright holder’s exclusive rights to reproduce or to authorize others to reproduce the work in copies or phonorecords is the doctrine of “fair use.”

Found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code).

http://www.copyright.gov/fls/fl102.html

Determining Fair Use

• There is no simple test to determine what is fair use.

• Section 107 of the Copyright Act sets forth four factors to determine whether a use is a "fair use":

Four Factors of Fair Use

1. The purpose and character of use -

including whether such use is of a commercial nature or is for nonprofit educational purposes

Four Factors of Fair Use

2. Nature of the copyrighted work

Four Factors of Fair Use

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

Four Factors of Fair Use

4. The effect of the use upon the potential market for or value of the copyrighted work.

Four Factors of Fair Use

It is important to understand that:• these guidelines are not law, but represent a

consensus of fair use.• uses that exceed these guidelines may or may

not be fair use. • the more one exceeds these guidelines, the

greater the risk that fair use does not apply.• only the courts can determine whether any

particular use falls within fair use.

The Guidelines apply to use:

...without permission,

...of portions,

...of lawfully acquired copyrighted works,

...in educational multimedia projects,

...created by educators or students,

...as part of a systematic learning activity,

...by nonprofit educational institutions.

Fair Use From Adventures of the American Mind

Lets see what experts say

Fair Use Conditions

Fair Use Test

Preparation of

Educational Multimedia

Using Portions

of Copyrighted Works

The Guidelines recognize different needs for students and educators.

Students

• May incorporate portions of lawfully acquired copyrighted works when producing their own educational multimedia projects for a specific course.

• May perform and display their own projects in the course for which they were created.

• May retain these projects indefinitely in their own portfolios as examples of their academic work for later personal uses such as job and school interviews.

Educators

May incorporate portions of lawfully acquired copyrighted works when producing educational multimedia projects to support their teaching needs.

Educators may present their projects:

...face-to-face instruction

...assigned to students for directed self-study

...remote instruction (with limitations)

for a period of up to two years after the first instructional use with a class.

Instructional use beyond two years requires permission for each copyrighted portion incorporated in the production.

Educators may retain projects indefinitely:

• for presentations to peers, for example, at workshops and conferences.

• in portfolios for personal uses such as promotion or job interviews.

Limitations

Preparation and use of projects created under these guidelines are subject to limitations of: Portion Copying Distribution

Overview of the

Fair Use Guidelines for

Educational Multimedia

Media Allowable portion for Fair Use

Motion (video) 10% or 3 minutes (<)

Text 10% or 1000 words (<)

Music Lyrics

Music Video

10% ≤ 30 seconds

Illustrations

Photographs

≤ 5 images from a single author

≤10% from collective works

Databases ≤ 10% or 2500 fields (<)

Copyright and New Technologies

From Education World http://www.education-world.com/a_curr/curr280c.shtml

The following slides include information from this article

Please read the section on software vs freeware!

Article by Linda StarrEducation World®

Copyright © 2004 Education World

Originally published 08/23/1999Updated 09/28/2005

Things to Avoid Doing on Your Teacher Website

• copying word for word and posting links that contain descriptions of the linked sites. Posting links that contain only a URL and the title of the site is generally acceptable.

• downloading graphics, including bullets, logos, fonts, photographs, and illustrations.

• framing information from another site, particularly if you delete the site's ads or identifying information or make it look as if the information is your own.

Things to Avoid Doing on Your Teacher Website

• deep-linking to an interior page of a site. Bypassing advertising or identifying information on a site's main page may deprive the copyright owner of revenue.

• copying a site's html code.

REMEMBER

works posted on other sites might not have been posted by the copyright owner or with the copyright owner's permission. Just because a copyrighted work is already posted on the Web doesn't mean it's there legally. Even sites that have obtained the required permission may not have the right to transfer that permission to you.

What about your Blog or Wiki

• Consider the same questions of fair use

• Treat it as you would a website or distance learning

Quick Copyright Facts for Technology Users

Most information on the Internet is not in the public domain.

Most software, including freeware, is not in the public domain.

A good way to determine whether a multimedia resource is copyright protected or in the public domain is to relate it as closely as possible to a print resource.

Quick Copyright Facts for Technology Users

Always get permission to use a copyrighted online work from the owner of that work, not from a secondary source. If you plan to use the work online, be sure to get permission to use the work electronically.

Print rights and electronic rights are not the same thing.

Sometimes, asking permission is simply polite, even if you're not legally required to do so!

Copyright Infringement vs Bad Manners

Even if you are not legally required to ask permission, it is a good idea and good manners when you…

• post or quote from: e-mails posted to a mailing list, message board, or newsgroup. Most participants in such groups intend their remarks for a limited audience and may not appreciate wider distribution.

• post or quote from personal e-mails. • link to sites that contain large amounts of video or

audio. The resulting traffic can seriously strain some servers.

The Digital Millennium Copyright Act of 1998

• Attempts to deal with copyright and digital works• Lots of litigation, lots of proposed legislation to

“fix” the DMCA• Some believe there should new, separate

legislation for the protection of digital materials• Messy; we know most digital works are licensed• Should federal legislation help protect

fundamental user rights to info in a licensed world?

Conference on Fair Use(CONFU)

CONFU proposed fair use guidelines for new technologies: Educational Fair Use Guidelines For Distance Learning, Educational Fair Use Guidelines For Digital Images and Fair-Use Guidelines For Electronic Reserve Systems. •the groups that developed these guidelines failed to endorse them. •use them -- but be aware that many educators and librarians have reservations about them.

"It is unknown whether the guidelines developed [by CONFU] represent a 'safe harbor' for educators and librarians," Nancy Willard told Education World. "Some educators and librarians fear that following the guidelines will result in undercutting a more expansive scope of fair use.

Tips and Reminders

Quoting or crediting the author of a copied work does not satisfy copyright requirements.

Copyright notice does not need to be visible for a work to be under copyright

When in doubt about either the copyright status of a work or the appropriateness of your use of that work, get permission.

Copyright and Fair UseActivities

• Take a Copyright and Fair Use Quizhttp://www.techlearning.com/db_area/archives/TL/2002/10/copyright_quiz.php

• "A Visit to Copyright Bay" for educatorshttp://www.stfrancis.edu/cid/copyrightbay/fairuse.htm

ResourcesUnited States Copyright Office

• Here is the main page that has been created with the desire to serve the copyright community of creators and users, as well as the general public.http://www.copyright.gov/

• U..S. Copyright – Basic questions and answers. http://www.copyright.gov/circs/circ1.html

• U.S. Copyright – Fair Use direct link. http://www.copyright.gov/fls/fl102.html

• Circular21 - Copyright for Educators and Librarians 24-page booklet in pdf format contains information for teachers and librarians dealing with the reproduction of copyrighted works and includes information about the number of copies, the length of a reproduction and lots of other good information. http://www.copyright.gov/circs/circ21.pdf

Resources• Taking the Mystery out of Copyright

This feature at the Library of Congress’ Learning Page is a great way to get students thinking about copyright.

  http://www.loc.gov/teachers/copyrightmystery/

• U. S. Patent Office Kids’ Pages http://www.uspto.gov/go/kids/kidantipiracy03.htm

• Fair Use Guidelines for Educational Multimedia

http://www.indiana.edu/~ccumc/mmfairuse.html http://www.libraries.psu.edu/mtss/fairuse/

• Crash Course in Copyrighthttp://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

• Copyright FAQ http://www.aimnet.com/~carroll/copyright/faq-home.html

Copyright for Teachers and School Librarians

• Education World Copyrights and Copying Wrongs, a series on copyright and fair use

http://www.education-world.com/a_curr/curr280a.shtml

• Adventure of the American Mind http://users.mhc.edu/facultystaff/awalter//Brim%20site/index.html

• Free Presentations in PowerPoint format http://languagearts.pppst.com/plagiarism.html

• ALA Copyright Advisory Network (public domain chart, issues, etc.)http://librarycopyright.net/wordpress/?page_id=16 Fair Use Checklist http://www.copyright.iupui.edu/checklist.pdf

Resources

Additional resources can be found in the Wiki

http://ebrit.wikispaces.com