Copyright Basics

Before we begin … This presentation provides basic

information about Copyright law. It is not meant to provide legal advice.

Before we begin … If you wish to remain in compliance with

Copyright law, without question, you should always follow the Classroom Guidelines provisions.

What Copyright Protects … “Books, articles, photographs, paintings,

sculpture, software, websites, architecture, pantomimes, ballets, music, sound recordings, and even doodles, scribbles, and graffiti.”

IUPUI Copyright Management Center

What Copyright Protects … Scope: Copyright can apply to any

“original work of authorship” that is “fixed in any tangible medium of expression.”

IUPUI Copyright Management Center

Exceptions … 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)

Exceptions … Facts, slogans, titles, simple phrases

(remember, Copyright is not the same as Trademark)

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices

Exceptions … Works consisting entirely of

information that is common property and containing no original authorship (examples – standard calendars, height and weight charts, tables from public documents)

Exceptions … Works with expired copyrights. (See

chart for copyright duration) Work that is copied as “fair use.” (More

on this in just a bit …)

When does Copyright begin? Automatic Protection: As soon as you

create an “original” work that is “fixed,” you get copyright protection automatically.

Copyright Notice: No longer required for protection, but provides some legal and practical benefits.

Copyright Registration: No longer must be registered with the U.S. Copyright Office to be protected, but does provide some legal and practical benefits.

IUPUI Copyright Management Center, Copyright Quick Guide. http://www.copyright.iupui.edu/quickguide.htm

Fair Use … The Fair Use exemption was established

"...to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”

Codified in the Copyright Act of 1976 as 17 USC Section 107.

Fair Use … “Notwithstanding the provisions of

sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Fair Use …In determining whether the use made of a work in

any particular case is a fair use the factors to be considered shall include — 

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;3. The amount and substantiality of the portion

used in relation 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.

Fair Use … Still an unsettled area of law Fair Use is a balancing test, not a black

and white list of rules Not meeting one of the four criteria

does not eliminate you from using this exception (but, it does weigh against you)

Purpose and Character of Use …

Do you intend to make a profit? Profit-making does not automatically

eliminate you if you are providing some sort of public service

If your creation is a “new” product, a parody, for example, it may fall within fair use

Nature of the Material Copied …

The less “creative” the material is, the more this favors fair use. Data and facts cannot be copyrighted

(presentation/format can be copyrighted, however)

The more “creative” the material is, the more copyright comes into play.

Probably the least important factor

Amount of Material Copied …

The more you copy of a work, the less likely it will fall into “fair use.” BUT

Quantitative and Qualitative factors come into play

If one percent of a book comprises the “heart” of the material, copying that one percent is the same as copying the entire work (example: 300 – 400 words copied from President Ford's unpublished memoirs)

Amount of Material Copied …

It really depends … On the purpose of the copy, and The nature of the material

… which brings us to the most important factor of all

What is the commercial effect?

The extent of harm the copies have on the artist's or author's market. How much have sales of the original work been affected because of competition from the copies?

What is the market for the work? Parodies have different markets than the original.

Some guidelines for minimizing the commercial effect …

Always consider whether copying harms the market or sale of the copyrighted material

Materials used in the class should include a citation to the original source of publication and a form of a copyright notice

Consider whether materials are reasonably available and affordable for students to purchase—whether as a book, coursepack, or other format

Some guidelines for minimizing the commercial effect …

Do not post any copies on the Internet with open access. As an alternative, consider posting the material on a closed or password-protected site under the TEACH Act

Avoid making copies for any commercial or profit-making pursuit

Materials found in WOU Library subscription databases are “owned” by WOU – may use w/o infringement

When in doubt …

Try to obtain permission from the copyright holder, or …

Follow the Classroom Guidelines

The Classroom Guidelines … Were intended to be a “safe harbor,” a

minimum statement of fair use Generally so restrictive that if followed,

use would always be fair use

New additions to the law …

Digital Millenium Copyright Act Passed in 1998

The TEACH Act Deals with transmission of materials

to distance education audience

Digital Millenium Copyright Act …

Makes it a crime to circumvent anti-piracy measures

Limits ISPs’ copyright infringement liability Limits universities copyright infringement

liabilities when they serve as ISP In return, an expectation to remove all

online materials that infringe on copyright Allows libraries to make archival copies of

materials

From the UCLA Online Institute for Cyberspace Law and Policy, The Digital Millennium Copyright Act. http://www.gseis.ucla.edu/iclp/dmca1.htm

TEACH Act …

The Technology, Education, and Copyright Harmonization Act

Focuses on transmission of performances/displays for distance education audiences

Sets criteria for instructors to follow

TEACH Act Checklist …

1. Avoid use of commercial works that are sold or licensed for purposes of digital distance education.

2. Avoid use of pirated works, or works where you otherwise have reason to know the copy was not lawfully made.

North Carolina State University Libraries, TEACH Act ToolkitI. http://www.lib.ncsu.edu/scc/legislative/teachkit/

TEACH Act Checklist …

3. Limit use of works to an amount and duration comparable to what would be displayed or performed in a live physical classroom setting.

4. Supervise the digital performance or display, make it an integral part of a class session, and make it part of a systematic mediated instructional activity. North Carolina State University Libraries, TEACH Act ToolkitI. http://www.lib.ncsu.edu/scc/legislative/teachkit/

TEACH Act Checklist …

5. Use software tools provided by the university to limit access to the works to students enrolled in the course, and to prevent copying and retention for longer than the class session.

6. Notify the students that the works may be subject to copyright protection and that they may not violate the legal rights of the copyright holder. North Carolina State University Libraries, TEACH Act ToolkitI. http://www.lib.ncsu.edu/scc/legislative/teachkit/

Getting Permission …

Print Materials - Contact publisher directly, or contact:

Copyright Clearance Center [www.copyright.com]222 Rosewood Dr.Danvers, MA 01923

Expect to provide: title; author, book's date or edition; portion of the book you want to copy; standard number or ISSN, ISBN or LCCN

The process is expedited online, even getting permission nearly immediately in many cases. If the CCC doesn’t have the title you are looking for, then you must try and contact the publisher directly.