Copyright Law and the TEACH ACT

Presented by

Kevin M. Lemley

The Basics of Copyright

Copyright applies to any original work of authorship.

Books, pictures, paintings, television shows, movies, brochures, songs, sculptures, and software.

Only need a minimum level of creativity.

The Rights That Make up Copyright

Copy, Distribute, Derivative Works, Public Performance, and Public Display.

The copyright owner has the exclusive use of these rights.

Idea/Expression Dichotomy

Copyright only protects the particular expression, not the idea.

Double-entry accounting

When the Copyright is Created

The copyright is created at the moment the work is fixed in a medium.

The author does not have to provide copyright notice [©].

Copyright Term

It all started with a 14-year term

Expansions in the 20th century

Current term

Under Copyright or in Public Domain?

In the Mood (Glenn Miller Orchestra)

Sing, Sing, Sing (Benny Goodman)

Happy Birthday

King Porter Stomp (Jelly Roll Morton)

Amazing Grace

The Basics of Copyright Infringement

Two elements: (1) access and (2) substantial similarity.

Secondary liability if we assist others or profit from their infringement.

Independent creation is a defense.

“Standard” Copyright Infringement Case Is the work protected by copyright?

Is the accused work infringing?

Honda del Sol commercial

Infringement in the University Setting

(1) Professor makes copies of journal articles and distributes to the entire department.

(2) Uploading pictures onto course websites.

(3) Uploading pictures onto student organization websites/newsletters.

(4) Posting cartoons on websites.

(5) Course pack materials.

Civil Liability for Infringement

Civil Penalties:

(1) Actual Damages; or

(2) Defendant's Profits; or

(3) Statutory Damages (up to $150,000 per work).

Plus the plaintiff's attorney fees.

Criminal Penalties

Criminal liability accrues only for willful infringement. It arises under the following:

(1) Infringement for commercial advantage (felony level at $2,500);

(2) Infringement within a 180 day period which has a retail value of at least $1,000 (felony level is same);

(3) Distributing a work before it is released for commercial distribution (automatic felony).

The Basics of Fair Use

Fair use applies to purposes such as criticism, comment, news reporting, teaching, scholarship or research. See 17 U.S.C. § 107.

This does not mean the use is always fair use.

The Fair Use Factors

The Copyright Act requires analysis of 4 factors to evaluate fair use:

(1) the character of the use, including if it is a commercial nature or nonprofit;

(2) the nature of the copyrighted work;

(3) the amount of the portion used compared to the copyrighted work as a whole; and

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

See 17 U.S.C. § 107. All 4 factors must be evaluated, but the final factor is often the most determinative.

Fair Use?

Hillary Clinton 1984 ad

Wedding dance

Wedding song

Fair Use Pop Quiz

Which of the following is fair use for amount of a book taken and used in your course pack?

(a) 30%

(b) 18%

(c) 8%

(d) 5%

Evaluating Fair Use

You are not guaranteed that a use is fair use.

The copyright owner can still bring the lawsuit; fair use is a defense.

Norms in the education industry frown upon one educator suing another educator.

Classroom Rights

Teachers get "additional rights" in the classroom.

You can display or perform a copyrighted work as long as it is related to the curriculum. See 17 U.S.C. 110(1).

Exception: You cannot show an illegal copy of an audiovisual work.

Overview of the TEACH Act The TEACH Act provides rights for distance learning classes.

Institution Conditions

(1) Policies and provide information about copyright;

(2) Reasonably prevent students from keeping works after class session and redistributing them; and

(3) Not interfere with technological controls by copyright owners.

Conditions on the Work

(1) Made under supervision of instructor;

(2) Directly related to a regularly-taught class; and

(3) Technologically limited to students in the class.

Works You Can Use Entirely

(1) Performances of a non-dramatic literary work

Includes: reading a short story, poem, or article

Excludes: performing a play or transmitting audiovisual works (e.g., movies)

(2) Performances of a non-dramatic musical work

Includes: playing/singing a song

Excludes: opera or transmitting audiovisual works (e.g., music videos)

(3) Still images (pictures)

Works You Can Use Only a Portion

For some works, you can only use a limited amount:

Transmit reasonable and limited portions of other performances

No definition of "reasonable and limited"

Copies You Can Make

A new provision of the Copyright Act allows you to make copies of digital works and make digital copies of analog works. See 17 U.S.C. § 112(f).

Limitations:

(1) The copies are retained only by the school and used only for authorized activities under Section 110; and

(2) The digital copy of an analog work has technological controls.

Works Not Covered by the TEACH Act Some works are off limits under the TEACH act:

(1) Works that are marketed primarily for performance or display as part of instructional activities transmitted via digital networks. Note: use may qualify as fair use, just not protected under the TEACH Act.

Protects the market for educational videos.

(2) Illegal copies

(3) Watch out for hybrid situations

You can copy and transmit a VHS but not a technologically-controlled DVD.

No Cases Yet on TEACH Act

No cases have been published yet on the TEACH Act.

Helpful in the sense that educators are not being sued.

Unhelpful in the sense we have had no judicial interpretation of the act.

Getting Permission

For written works, the Copyright Clearance Center manages the largest database. The fees are less for academic use than commercial use.

For pictures Getty Images has an extensive database of rights-managed and royalty-free images.

Music licenses are available through ASCAP and BMI. Typically these licenses are for university radio stations or performing groups such as bands. You may prefer iTunes.

Get permission (in writing) directly from the author. Make sure the person you contact is the copyright owner.

Selecting Course Materials—Preliminary Matters For any writing, picture, video or music,

assume the work is under copyright.

See that you are comfortable it falls within the TEACH Act or is fair use.

If not, get permission.

Selecting Course Materials—Substantive Considerations Choose materials with high educational value

but low market value. Consider the various risks of:

(1) Showing a clip of Schindler’s list or a clip of a low-profit independent film;

(2) Posting 5 pages from the current bestseller or 5 pages from an obscure textbook.

Linking Rather Than Broadcasting

Continuous broadcasting could create problems.

Linking is much more advantageous. Provide your students with the link rather than the work itself.

Search Google Video and YouTube to find helpful clips.

Make Your Own Materials

Consider preparing your own written materials.

You are free to read another's work and then create your own expression of that idea.

In fact, this is the policy behind copyright.

Keep the Website Closed

The website you use to post materials should be closed, via password protection, to only your students and certain university personnel.

Closing the website provides you with protection:

(1) Much more likely to be fair use;

(2) Difficult to discover; and

(3) Limits the "harm" caused to the owner.