Copyright

USERS

OWNERS

Finding the balance

Promote Progress Limit Ownership

DISCLAIMERThis presentation is not legal

advice. Any and all comments or interpretations pertaining to the law made during this presentation are in

no way legally binding.

© Janet Tillman/The Master’s College, 2004-2008, permission is granted for non-profit educational use; any reproduction or modification should include this statement.

Attribution

FRIDGE, PiCLE and PNAM mnemonics as well as the flowchart are used by permission from Mary Minow, JD Policy Analyst for the California Association of Library Trustees and Commissioners http://www.librarylaw.com/

Intellectual Property

Copyright PatentTrademark Trade Secret

Important for Educators and creators of Web pages

Copyrightable Works

Literary works – not limited to literature

Musical works Dramatic works Pantomimes and choreographic works Pictorial, graphic, sculptural works Motion pictures and other audiovisual

works Sound recordings Architectural works

What it is

Copyright protects the EXPRESSION of an idea

The work must be in a fixed tangible medium

The work must have a modicum of originality

The work must have at least a minimal level of intellectual creativity

What it is not

Facts, Ideas and slogans cannot be copyrighted

Extemporaneous speeches, live sermons, lectures, performances, etc. cannot be copyrighted

Quality, aesthetics, effort or similarity to other works are irrelevant

Owner’s Exclusive Rights

Duplication (Reproduction)

Distribution

Derivation (Adaptation)

Display

Public Performance

Exceptions to the Rule

Fair Use U.S. Code, Title 17, Sec. 107 http://www.copyright.gov/title17/92chap

1.html#107

Face to Face Teaching and the TEACH Act U.S. Code, Title 17, Sec.110 http://www.copyright.gov/title17/92chap

1.html#110 VERY Important for DEEP professors!!

When is it OK to copy someone else’s work?

Public Domain?

Yes

No

Fair Use?

Weigh the PNAMNo

Get Permission

Maybe Maybe not

Use

Unless it’s in the PiCLE jar

if it’s in the FRIDGE

Public Domain = in theFRIDGE

Facts

Recipes

Ideas

Dedicated works

Government works (U.S.)

Expired Works

The PICLE of Protecting Work

Physical Inaccessibility

Copyright

Licenses/contracts

Encryption

FAIR USE

PNAM and risk tolerance

No

Public Domain?

Fair Use?

Maybe Maybe not

Fair Use Factors urpose and Character of the use

of the work being copied

ature of the work

mount and substantiality of the portion being used in relation to the whole

arket effect

P

N

A

M

Purpose Commercial

activity Profiting from

use Bad faith

behavior Entertainment Denying credit

to original author

Nonprofit Educational

Teaching Research Scholarship Criticism Comment Transformative Parody News reporting Restricted access

Oppose

Favor

Nature

CreativeFictionalUnpublished

Factual/nonfictional

Important to favored educational objectives

Published work

Oppose

Favor

Amount Substantial in

proportion to the whole

Central to or “heart of the work”

Small quantity Portion is not

central or significant to entire work

Amount is appropriate for educational purpose

Oppose

Favor

Market effect Could replace sales Hurts the current

market or the potential market

Reasonable available licensing mechanism

Affordable permission available

Numerous copies made

Made accessible on Web

Repeated or long-term use

User owns legal copy

One or few copies made

Does not significantly hurt the market or the potential market

No similar product

No licensing

OpposeFavor

Does Fair use Apply?OpposeFavor

Creative

Central to or “heart of the work”

Could replace sales

Non-profit EducationalTeachingCommentRestricted accessImportant to favored

educational objectivesPublished workSmall quantityAmount is appropriate for

educational purposeDoes not significantly hurt the

market

Does Fair use Apply?

P NAM

P + N + A + M = Is It Fair Use?

Ø_$_

$$ $

Favorable

Unfavorable

Unfavorable w/ “good faith effort”

In Good Faith

Risk ToleranceNo guarantees, but…

Owners look for deep pockets

Registered copyright owner gets more money

Librarians and non-profit educational institutions might pay $0 damages, if “good faith analysis” can be documented.

When Fair Use Does Not Apply

Public Domain?

No

Fair Use?

No

Get Permission

When Fair Use Does NOT Apply

Get Permission E-mail Webmaster Copyright Owner Get in writing/keep on file

Good Faith effort If unable to locate owner make disclaimer “I’ll

remove this (from the Web) if you want”

Copyright Police are out there Lawyers for the owners Disgruntled constituents, employees

Getting Permission: How to find copyright owners

Harry Ransom Humanities Research Center – Univ. Texas Austin http://www.hrc.utexas.edu/index.html

Copyright Clearinghouse http://www.copyright.com/

Getting Permission

Sample Permission Letters http://www.librarylaw.com/perm.htm

Copyright Crash Course-Permissions http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm Great site that lists all the major rights

collectives plus logistics, best efforts etc. in requesting permissions

What about all those Guidelines?

Abiding by guidelines cannot protect you from law suits nor guarantee a favorable outcome.

Guidelines often restrict fair use more than the copyright law allows

Many are inappropriate for higher education

Guidelines are not law

Guidelines have no force or effect of law; none have been enacted into law by Congress; none have been adopted as a binding standard of fair use in any court decision.

However, they are considered a “safe harbor” and demonstrate “good faith effort”

Tests of Guidelines

Brevity Spontaneity Cumulative Effect Each copy must contain a notice of

copyright

Myths about copyright

If I give credit to the owner it’s OK to use it.

If it doesn’t have a copyright notice, it’s not copyrighted.

If I don’t charge for it, it’s not a violation

It’s not a felony and I have my rights!

If it’s on the Internet, it’s public domain

What about the Web?

Affected by Copyright and Trademark Law

Law lags behind technology

Fair use is flexible

Very little case law related to the Internet and none about Fair Use or Ed’l Purposes

Extrapolate and make your best guess

Extrapolate and Apply PNAM

Purpose: Limiting access to your students only or

by password can demonstrate educational purpose.

Nature: Use nonfiction, scientific over fiction or

motion pictures

Extrapolate and Apply PNAM

Amount: The shorter the better Use only what is appropriate for the

educational purpose

Market effect: Reduce it by limiting who has access to

the system Limit to one semester Use only news or academic works Use materials not easily available to

purchase

Help your students

Place a notice: “These materials are made available at this site for the educational purposes of students enrolled in my class at The Master’s College. The materials are subject to U.S. Copyright law and are not for further reproduction or transmission.”

Ask your students to respect the law or risk losing the opportunities for creative teaching in the future.

Register with Copyright Office

Copyright protection is instantaneous

Registration not required but strongly recommended

International Copyrights protected by Berne Convention and GATT treaty.“All Rights Reserved”

Copyright notice is no longer necessary but it is recommended

Proper form for notice: “Copyright [date] by [author/owner]” or “© [date] by [author/owner]”“[date] by [author/owner]” (phonorecords)

Notice should be Noticeable

Copyright Notice

Other Copyright Tutorials

NCSU Copyright Tutorial: http://www.lib.ncsu.edu/scc/tutorial/main.html

Crash Course in Copyright: http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

Other Copyright Tutorials

Copyright Primer: http://www.umuc.edu/cgi-bin/cgiwrap/primer/primerwrap.cgi/enter.php#

CopyOwn-Tutorial: http://www.inform.umd.edu/copyown/tutorial/

Helpful Web Sites

Nolo: Law for All http://www.nolo.com/lawcenter/ency Trademarks & Copyright Rules for Webmasters

Library of Congress Copyright Office http://lcweb.loc.gov/copyright/

TEACH Act: http://www.copyright.gov/legislation/pl107-273.html#13301

Helpful Web Sites

Digital Millenium Copyright Act (DMCA): http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_bills&docid=f:h2281enr.txt.pdf

DMCA Summary: http://www.loc.gov/copyright/legislation/dmca.pdf

Helpful Web Sites

Copyright Management Center: http://copyright.iupui.edu/

Stanford University Libraries Copyright and Fair Use: http://fairuse.stanford.edu/

UCLA Cyberspace: http://www.gseis.ucla.edu/iclp/dmca1.htm

Helpful Web Sites

CETUS: Fair Use of Copyrighted Works: http://www.cetus.org/fairindex.html

What Every Teacher Should Know about copyright: http://www.2learn.ca/copyright/locate

Helpful Web Sites

LibraryLaw.com (http://www.librarylaw.com) Links to the best copyright sites for libraries, as well as other library law sites and articles.

Fair Use Harbor in Copyright Bay (http://www.stfrancis.edu/cid/copyrightbay/fairuse.htm) A game for teachers

Copyright Registration for Online Works (http://http://www.copyright.gov/circs/circ66.pdf) The Copyright Office website gives instructions on registering web pages in its Circular 66: Copyright Registration for Online Works.