Educating for the Future:Educating for the Future:Copyright Copyright

andand Intellectual Property Issues Intellectual Property Issues

An Updated OverviewAn Updated Overview

Jud Copeland, DirectorJud Copeland, DirectorThe Arnold LeDoux LibraryThe Arnold LeDoux Library

Louisiana State University at EuniceLouisiana State University at Eunice

What is Copyright?What is Copyright?

The original term of copyright created by The original term of copyright created by Congress in 1789 was 14 years.Congress in 1789 was 14 years.

Copyright, as defined in the U.S. Constitution, is Copyright, as defined in the U.S. Constitution, is a right, reserved to authors for limited times. The a right, reserved to authors for limited times. The purpose is “To promote the progress of science purpose is “To promote the progress of science and useful arts, by securing for limited times to and useful arts, by securing for limited times to authors and inventors the exclusive rights to authors and inventors the exclusive rights to their respective writings and discoveries.their respective writings and discoveries.(Section 8 of the U.S. Constitution)(Section 8 of the U.S. Constitution)

How long does an author own the How long does an author own the rights to his/her own work?rights to his/her own work?

Since Congress passed the Sonny Bono Since Congress passed the Sonny Bono Copyright Term Extension Act in 1998, the term Copyright Term Extension Act in 1998, the term of copyright protection for all new works and of copyright protection for all new works and works under protection as the date of enactment works under protection as the date of enactment is the life of the author plus 70 years.is the life of the author plus 70 years.

For works of “corporate authorship,” such as For works of “corporate authorship,” such as with a motion picture, the term of copyright is 95 with a motion picture, the term of copyright is 95 years from the date of creation or 120 years, years from the date of creation or 120 years, whichever comes first.whichever comes first.

** Refer to Public Domain Chart** Refer to Public Domain Chart

What rights does an author own?What rights does an author own?

The creator of a work owns 5 rights:The creator of a work owns 5 rights:• ReproductionReproduction• AdaptationAdaptation• DistributionDistribution• Public PerformancePublic Performance• Public DisplayPublic Display

These rights are considered property These rights are considered property rights and they can be bought, sold, or rights and they can be bought, sold, or licensed as a group or individuallylicensed as a group or individually

How does an author receive a How does an author receive a copyright?copyright?

To receive a certificate of copyright, an To receive a certificate of copyright, an author had to register his/her copyright author had to register his/her copyright with the appropriate office – The Registrar with the appropriate office – The Registrar of Copyright in the United States. of Copyright in the United States.

In addition to registration, certain notice of In addition to registration, certain notice of copyright had to be included on each copy copyright had to be included on each copy of the material. of the material.

According to the Berne Convention (1989), According to the Berne Convention (1989), notice of copyright is no longer required. notice of copyright is no longer required. Any item created in “tangible form” (written Any item created in “tangible form” (written or typed on paper, painted on canvas, or typed on paper, painted on canvas, recorded on tape, or saved to disk) is recorded on tape, or saved to disk) is automaticallyautomatically protected by copyright law. protected by copyright law. No longer is registration required to obtain No longer is registration required to obtain a copyright. The process is automatic and a copyright. The process is automatic and instantaneous. No notice of copyright is instantaneous. No notice of copyright is required either. required either.

What is Intellectual Property?What is Intellectual Property? Intellectual Property (I. P.) means any invention, discovery, Intellectual Property (I. P.) means any invention, discovery,

improvement, copyrightable work, integrated circuit mask improvement, copyrightable work, integrated circuit mask work, trademark, trade secret, and licensable know-how work, trademark, trade secret, and licensable know-how and related rights.and related rights.

Intellectual property includes individual or multimedia Intellectual property includes individual or multimedia works of art or music, records of confidential information works of art or music, records of confidential information generated by the University, data, texts, instructional generated by the University, data, texts, instructional materials, tests, bibliographies, research findings, materials, tests, bibliographies, research findings, organisms, cells, viruses, DNA sequences, probes, plant organisms, cells, viruses, DNA sequences, probes, plant lines, chemical compounds, and theses. I. P. may exist in lines, chemical compounds, and theses. I. P. may exist in written or electronic form, may be raw or derived, and may written or electronic form, may be raw or derived, and may be in the form of text, multimedia, computer programs, be in the form of text, multimedia, computer programs, spreadsheets, databases, graphics, digital images, video spreadsheets, databases, graphics, digital images, video and audio recordings, musical compositions, film, film and audio recordings, musical compositions, film, film strips, slides, charts, transparencies, other visual/aural strips, slides, charts, transparencies, other visual/aural aids or CD-ROMS.aids or CD-ROMS.

Intellectual Property PolicyIntellectual Property Policy

Intellectual Property policy exists to Intellectual Property policy exists to encourage research and innovation, clarify encourage research and innovation, clarify ownership of intellectual property rights, ownership of intellectual property rights, create opportunities for public use of create opportunities for public use of University innovations, and provide for the University innovations, and provide for the equitable distribution of monetary and equitable distribution of monetary and other benefits derived from intellectual other benefits derived from intellectual property. property.

Intellectual Property Policy applies to all faculty, staff, Intellectual Property Policy applies to all faculty, staff, students, and any other persons employed by the students, and any other persons employed by the University; to all persons receiving funds administered by University; to all persons receiving funds administered by the University or receiving other compensation from the the University or receiving other compensation from the University; and to all University-enrolled graduate students University; and to all University-enrolled graduate students and post-doctoral fellows regardless of funding or and post-doctoral fellows regardless of funding or employment status.employment status.

Except as noted in contractual agreements, the University Except as noted in contractual agreements, the University shall be the sole owner of all intellectual property created shall be the sole owner of all intellectual property created through the use of University resources or facilities, through the use of University resources or facilities, supported directly or indirectly by funds administered by supported directly or indirectly by funds administered by the University, developed within the scope of employment the University, developed within the scope of employment by employees, agreed in writing to be a specially by employees, agreed in writing to be a specially commissioned work, or assigned in writing to the commissioned work, or assigned in writing to the University.University.

The TEACH ACTThe TEACH ACT (Technology, Education and (Technology, Education and Copyright Copyright Harmonization Act) Harmonization Act)

President Bush signed into law the President Bush signed into law the TEACH Act on November 2, 2002. TEACH Act on November 2, 2002. The TEACH Act addresses many of The TEACH Act addresses many of the recommendations from the study the recommendations from the study conducted by the Copyright Office conducted by the Copyright Office (1999).(1999).

Primarily, the TEACH Act Amended Primarily, the TEACH Act Amended Section 110 (2) of the Copyright Law Section 110 (2) of the Copyright Law of 1976 Which Had Applied Mostly to of 1976 Which Had Applied Mostly to

Closed Circuit Television Closed Circuit Television Environments and Did Not Support Environments and Did Not Support

the Emerging Distance Learning the Emerging Distance Learning Technologies.Technologies.

The “old” Section 110 (2) of The “old” Section 110 (2) of Copyright Law addressed Copyright Law addressed instructional broadcasting using instructional broadcasting using closed circuit television. Digital closed circuit television. Digital transmissions needed to transmissions needed to support distance education support distance education were not usually permitted.were not usually permitted.

•The TEACH Act expands face-to-face teaching exemptions in the copyright law, allowing teachers and faculty to use copyrighted works in the “digital classroom” without prior permission from the copyright holder.

The TEACH ACT allows nonprofit, educational The TEACH ACT allows nonprofit, educational institutions to transmit materials in a digital institutions to transmit materials in a digital environment once certain definite restrictions are environment once certain definite restrictions are met. The TEACH ACT allows:met. The TEACH ACT allows:

Transmitting performances of ALL of a non-Transmitting performances of ALL of a non-dramatic musical or literary work dramatic musical or literary work

Transmitting “reasonable and limited portions of Transmitting “reasonable and limited portions of any other performance”any other performance”

Transmitting displays of any work or still imagesTransmitting displays of any work or still images NOTE: Unlike FAIR USE, the TEACH ACT has NOTE: Unlike FAIR USE, the TEACH ACT has

several specific conditions that must be met. Be several specific conditions that must be met. Be sure to check the link provided for more sure to check the link provided for more information on this issueinformation on this issue. .

Also refer to the TEACH ACT Check List. Also refer to the TEACH ACT Check List.

Educators and librarians should Educators and librarians should be reminded that there are still be reminded that there are still

options to be explored outside of options to be explored outside of the TEACH Act which might the TEACH Act which might

apply to situations not covered. apply to situations not covered. These are: These are: fair usefair use, permissions, , permissions,

and creative use of library and creative use of library resources.resources.

The ALA Washington Office has created aThe ALA Washington Office has created a

TEACH Web site to help members with the TEACH Web site to help members with the complexities of the TEACH Act: complexities of the TEACH Act:

www.ala.org/washoff/teach.htmlwww.ala.org/washoff/teach.html

Also, be sure to check out the Distance Also, be sure to check out the Distance Education Clearinghouse for sites on Education Clearinghouse for sites on Intellectual Property and Copyright:Intellectual Property and Copyright:

www.uwex.edu/disted/intprop.html www.uwex.edu/disted/intprop.html

The Role for Librarians

Nothing in the TEACH Act mentions duties of librarians.

Fundamentally, librarians have a mission centered on the management and dissemination of information resources.

Distance education is simply another form of that pursuit.

Within the framework of the TEACH Act, librarians may find new opportunities to shape distance education programs.

SummarySummary

The TEACH Act:Major improvement from prior law which severely limited types of works that could be transmitted and required reception by students in classrooms;All types of works are now covered and the locationrestriction has been eliminated;Yet there are real limits on how much and how copyrighted works can be incorporated into an online course;Important to recognize if an instructor’s intended use is permitted under the TEACH Act and the role of fair use in this process.

Fair UseFair Use

Whereas Congress established the rights of Whereas Congress established the rights of authors to their own works, they also authors to their own works, they also acknowledge that students ad researchers acknowledge that students ad researchers need to have access to otherwise need to have access to otherwise protected works in order to build upon protected works in order to build upon existing knowledge. To achieve this goal, existing knowledge. To achieve this goal, Congress established the doctrine of Congress established the doctrine of FAIR FAIR USEUSE. .

The Fair Use doctrine states that The Fair Use doctrine states that reproduction for purposes of “criticism, reproduction for purposes of “criticism, comment, news reporting, teaching comment, news reporting, teaching (including multiple copies for classroom (including multiple copies for classroom use), scholarship, or research” is permitted use), scholarship, or research” is permitted in limited amounts. Section 107 of the in limited amounts. Section 107 of the Copyright Act lists four factors to help you Copyright Act lists four factors to help you determine types of content usage that may determine types of content usage that may be considered Fair Use. be considered Fair Use.

No one factor alone dictates whether a particular No one factor alone dictates whether a particular use is indeed Fair Use. Consideration of use is indeed Fair Use. Consideration of allall four four factors is needed to help determine whether or factors is needed to help determine whether or not copyright permission is required.not copyright permission is required.

Before applying these factors to a particular Before applying these factors to a particular situation, identify if the use is for criticism, situation, identify if the use is for criticism, comment, news reporting, education, comment, news reporting, education, scholarship, or research. If the answer is no, scholarship, or research. If the answer is no, then obtain copyright permission to use the then obtain copyright permission to use the content. If the answer is yes, examine the content. If the answer is yes, examine the following four factors: following four factors:

The four factors:The four factors: 1. The purpose and character of the use, including 1. The purpose and character of the use, including

whether it is for commercial use or for nonprofit, whether it is for commercial use or for nonprofit, educational purposes.educational purposes.

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

in relation to the copyright protected work as a in relation to the copyright protected work as a whole.whole.

4. The effect of the use upon the potential market for 4. The effect of the use upon the potential market for or value of the copyrighted work. The fact that a or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration Fair Use if such finding is made upon consideration of all the above factors.of all the above factors.

Copyright Court DecisionsCopyright Court Decisions & Fair Use & Fair Use

University of Chicago Press v. BISI, Inc.University of Chicago Press v. BISI, Inc.

Princeton University Press v. Michigan Princeton University Press v. Michigan Document Service, Inc.Document Service, Inc.

Basic Books, Inc. v. Kinko’s Graphics Basic Books, Inc. v. Kinko’s Graphics CorporationCorporation

First Sale DoctrineFirst Sale Doctrine

In addition to FAIR USE and the TEACH In addition to FAIR USE and the TEACH ACT, libraries rely on the “first sale” ACT, libraries rely on the “first sale” doctrine to be able to circulate and doctrine to be able to circulate and dispose of materials. This doctrine states dispose of materials. This doctrine states that once a given copy of a work is sold, that once a given copy of a work is sold, the copyright holder no longer may claim the copyright holder no longer may claim the right of distribution over that the right of distribution over that particularparticular copy of the work. This permits libraries to copy of the work. This permits libraries to loan, rent, sell, donate, or destroy any loan, rent, sell, donate, or destroy any copies of the materials they own.copies of the materials they own.

The Digital Millennium Copyright Act The Digital Millennium Copyright Act

Digital or electronic content, such as e-Digital or electronic content, such as e-books, photographs on Web sites and books, photographs on Web sites and electronic databases are subject to the electronic databases are subject to the same protections under the Copyright Act same protections under the Copyright Act as non-digital, traditional or analog works. as non-digital, traditional or analog works.

The Digital Millennium Copyright Act The Digital Millennium Copyright Act (DMCA) was passed into law in 1998 to (DMCA) was passed into law in 1998 to address some of the issues unique to address some of the issues unique to digital copyright. digital copyright.

Many people assume that online content, or Many people assume that online content, or content found on Web sites, is not subject to content found on Web sites, is not subject to copyright law and may be freely used and copyright law and may be freely used and modified without permission. This is not true. modified without permission. This is not true. Others may think that online content is not Others may think that online content is not protected unless it carries a copyright notice. protected unless it carries a copyright notice. This is not true either. This is not true either.

Copyright law protects almost all content on the Copyright law protects almost all content on the Web or in any other digital or electronic format. Web or in any other digital or electronic format. Therefore permission is most likely required to Therefore permission is most likely required to use that work beyond Fair Use. use that work beyond Fair Use.

What is protected by the DMCA?What is protected by the DMCA?

Any copyright-protected content in a non-Any copyright-protected content in a non-digital form will be protected in a digital digital form will be protected in a digital form. Examples of copyright-protected form. Examples of copyright-protected materials include:materials include:

Print and electronic booksPrint and electronic booksAnalog and digital musical recordingsAnalog and digital musical recordingsPrint and e-mail lettersPrint and e-mail lettersWeb sitesWeb sitesEmbedded works in Web sitesEmbedded works in Web sites

Both electronic and non-electronic databases Both electronic and non-electronic databases (such as professional directories and collections (such as professional directories and collections of images) may be copyright-protected if they of images) may be copyright-protected if they involve some level of creativity by the author in involve some level of creativity by the author in the selection or organization of the data. With the selection or organization of the data. With the proliferation of new databases in electronic the proliferation of new databases in electronic form, Congress is discussing new legislation to form, Congress is discussing new legislation to protect even those databases that do not meet protect even those databases that do not meet the requirements in the Copyright Act. the requirements in the Copyright Act.

In order to help copyright holders protect their digital In order to help copyright holders protect their digital content, the DMCA contains provisions forbidding content, the DMCA contains provisions forbidding circumvention of digital protections and protecting circumvention of digital protections and protecting copyright management information.copyright management information.

The anti-circumvention provisions prohibit the The anti-circumvention provisions prohibit the unauthorized circumvention of technological measures unauthorized circumvention of technological measures which control access to or restrict the use of a copyright-which control access to or restrict the use of a copyright-protected work. Such technological measures may protected work. Such technological measures may involve a password or encryption. Breaking the password involve a password or encryption. Breaking the password or encryption is illegal. or encryption is illegal.

Copyright management information includes the title of a Copyright management information includes the title of a work, the name of the author or copyright holder and work, the name of the author or copyright holder and other identifying information. Intentionally removing or other identifying information. Intentionally removing or altering such information violates a provision of the altering such information violates a provision of the DMCA. DMCA.

DMCA and Unique UsesDMCA and Unique Uses

The electronic environment features methods of The electronic environment features methods of “reusing” copyright-protected materials. These “reusing” copyright-protected materials. These methods include:methods include:

ScanningScanning Using Content from a Web SiteUsing Content from a Web Site Posting Content to a Web SitePosting Content to a Web Site Forwarding E-MailForwarding E-Mail Linking to a Web SiteLinking to a Web Site Electronic Discussion Lists, Bulletin Boards and Electronic Discussion Lists, Bulletin Boards and

Newsgroups Newsgroups

Other Campus Copyright Issues Other Campus Copyright Issues

When it comes to copyright, academic When it comes to copyright, academic institutions must address a wide range of areas institutions must address a wide range of areas in addition to the “reuse” of educational text-in addition to the “reuse” of educational text-based content.based content.

For example, is computer software being illegally For example, is computer software being illegally used and copied in your institution? What are used and copied in your institution? What are the legal implications of faculty, staff and the legal implications of faculty, staff and students downloading music files? Who is students downloading music files? Who is responsible for unauthorized content on a responsible for unauthorized content on a student Web site? student Web site?

Academic institutions must establish Academic institutions must establish compliance guidelines for the use and compliance guidelines for the use and distribution of a variety of “other types” distribution of a variety of “other types” of copyrighted materials including:of copyrighted materials including:

Computer SoftwareComputer Software Peer-to-Peer (“P2P”) File SharingPeer-to-Peer (“P2P”) File Sharing Illegal Online ContentIllegal Online Content Content Use for Business PurposesContent Use for Business Purposes The Use of Student-Created MaterialsThe Use of Student-Created Materials

LinksLinks Copyright Clearance CenterCopyright Clearance Center www.copyright.comwww.copyright.com U.S. Copyright OfficeU.S. Copyright Office www.copyright.govwww.copyright.gov Public DomainPublic Domain www.unc.edu/~unclng/public-d.htmwww.unc.edu/~unclng/public-d.htm Copyright Crash Course Copyright Crash Course www.utsystem.edu/ogc/intellectualproperty/cprtiwww.utsystem.edu/ogc/intellectualproperty/cprti

ndx.htmndx.htm

ConclusionConclusion Legalities Governing Digital Resources are in a Tremendous Legalities Governing Digital Resources are in a Tremendous

FluxFlux

The laws and statutes The laws and statutes The case law studiesThe case law studies The beliefs of copyright owners The beliefs of copyright owners The practices of usersThe practices of users

The Electronic Environment Offers New Opportunities to The Electronic Environment Offers New Opportunities to Make Works Conveniently Available and to Use Others' Make Works Conveniently Available and to Use Others' Works in New WaysWorks in New Ways

But Technology and the Change it Brings Can Threaten the But Technology and the Change it Brings Can Threaten the Balance that Enables Copyright Law to Fulfill its PurposeBalance that Enables Copyright Law to Fulfill its Purpose

Librarians and Patrons Must be Conscious of Their Activities Librarians and Patrons Must be Conscious of Their Activities and the Value of Works to their Ownersand the Value of Works to their Owners

Understand Copyright Policy, TEACH ACT, FAIR USE, University Understand Copyright Policy, TEACH ACT, FAIR USE, University Policy, and the “risks of using others’ works” Policy, and the “risks of using others’ works”

Use good judgmentUse good judgment

Establish Connections to Licensing CollectivesEstablish Connections to Licensing Collectives Make it easier for patrons to get permission when they need itMake it easier for patrons to get permission when they need it

Visit Georgia Harper’s Visit Georgia Harper’s Copyright Crash CourseCopyright Crash Course for Online for Online Copyright SupportCopyright Support

When in Doubt, Obtain Permission!When in Doubt, Obtain Permission!

Presented atPresented at

Louisiana Library Association Louisiana Library Association Annual Conference Annual Conference Alexandria, LAAlexandria, LAApril 26 – 28, 2005April 26 – 28, 2005