Copyright for K-12 Librarians and Educators

April 11, 2013Carrie Russell, Director of the Program on

Public Access to InformationALA

Office for Information Technology Policy crussell@alawash.org

Purpose of the Copyright Law

1. To ensure that authors are paid2. To promote learning and the dissemination of

knowledge3. To manage the financial interests of rights

holders4. To ensure that the heirs of rights holders can

continue to benefit from creative works

“The Constitution does not establish copyright, but provides that Congress will have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of the people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.”

H.R. 2222, pp 6-7, Copyright Act of 1976

Copyright is Good

• Benefits the public by making creative works available

• Understands that creators stand on the shoulder of giants

• Creates economic markets for works• Is flexible• Loves non-profit libraries and schools

The dwarf sees farther than the giant, when he has the giant's shoulder to mount on.

Wikipedia, the Free Encyclopedia

Do not be this person.

Review of Copyright Law

• Exclusive rights make up the limited monopoly created by Congress– reproduction – distribution – derivative works – public performance – public display

• Exclusive rights are divisible and can be inherited, given or contracted away

• Original and creative works fixed in a tangible medium get automatic copyright protection

• Distinction between copyright and a copy (the physical object)

There are “holes” in the Copyright Monopoly

• “Exceptions” are legal rules that allow one to use a copyright without prior authorization and without a fee

• “Limitations” are ways in which the monopoly is restricted

Statutory monopoly limited by:– user privileges like fair use, first sale, interlibrary loan, etc. – public domain (current term: life plus 70 years)– checks on what can be protected (not facts, lists, processes, federal

government documents, etc.)– idea v. expression dichotomy– and others

• If copyright monopoly was not curbed – what would be the result?

Socially beneficial uses of copyright materials

• Are central to the purpose of the law• Are often reflected in copyright exceptions (ex.

public performances in the classroom)• Places of learning, enrichment, and

scholarship have a special status under the law• Non-profit, educational institutions are one of

the few institutions that are specifically singled out as needing exceptions

Copyright is often confused with…

Some other intellectual property law – Patents, trademark, trade secret

Contract law (licensing)– When you ask and get permission to use a copyrighted

work from the copyright holder, you get a license to use the work

– We try to get user rights we would expect in the copyright law reflected in a license agreement

Fair use guidelines– Do not have the force and effect of law– But you might use these as your institutional policyPlagiarism – You can infringe and plagiarize at the same time, or you

can do one or the other separately

Plagiarism v. Copyright Infringement

• Is harder to spell• Is wrong• Is something that

should be taught – Little kids/older kids

• Any style format is fine

• Cite references

• Is a federal law• Breaking the copyright

law• Is bounded by

limitations to copyright• Unlikely• Cite references

Drama Queen.

“Oh yeah, you can say that but what if we get sued.”

Your Liability• Unlikely that a teacher or librarian would be

taken to court, but still could happen• Section 504(c)(2) limits statutory damages for

alleged infringers who work at a non-profit, educational institutions

• 11th Amendment – Constitutional doctrine that state or state agencies cannot be sued for dollar damages by the federal government

• Risky proposition to go to court; many disputes settled out of court

The Copyright Police

Fair Use

• Most important for you to know• Section 107, codified with the Copyright Act of 1976• Determined on a case by case basis• Requires one to think and make a judgment • You may never know for sure that a use of a

copyright is fair or not

Four Factors of Fair Use

• Purpose of the use (Why do you want to use a copyright?)

• Nature of the publication (What is the material that you are using?)

• Amount (How much of the works are you using?) • Effect on the market (What economic harm are you

causing?)

#1 Purpose of the Use

Fair Not Fair Non profit,

educational useFor profit,

commercial use

Uses often fall in betweenthe two ends.

#2 Nature of the Publication

Fair Not Fair Already published,

factualUnpublished,

“creative”

#3 Amount Used

Fair Not Fair Portions,

just the amount needed to satisfy the use

The entire work,flagrant,

made to avoid purchase

#4 Effect on the Market

Fair Not Fair No effect,

enhances future salesDirect impact on the market

Trails Category: Recognize how to use information responsibly, ethically, and legally

AASL Information Power: IP-S8-I2TRAILS Objective: From the list the learner will correctly identify the maximum

length of a sound clip from a popular song that may be legally incorporated into a school project.You are creating a video for your science class, and you want to include a sound clip from a popular song. How much of the song may you include without violating copyright?

CHOOSE ONE ANSWER.( ) up to 3% of the song length, but no more than 9 seconds( ) up to 10% of the song length, but no more than 30 seconds( ) up to 20% of the song length, but no more than 1 minute( ) There is no time limit because the song is being used for a

classroom assignment.

Here is the black and white (no gray!), ill-considered, short term option.

Fair Use Guidelines• Motion Media: Up to 10 percent or 3 minutes, whichever is less, of a single

copyrighted motion media work. • Text Material: Up to 10 percent or 1,000 words, whichever is less, of a single

copyrighted work of text. • Poems: An entire poem of less than 250 words, but no more than three poems

by one poet or five poems by different poets from a single anthology. In longer poems, the 250-word limit still applies, plus no more than three excerpts by one poet or five excerpts by different poets from a single anthology may be used.

• Music, Lyrics and Music Video: Again, up to 10 percent, but no more than 30 seconds of music and lyrics from a single musical work. Any alterations of a musical work shall not change the basic melody or the fundamental character of the work. For example, a music instructor could use a piece of music and change the rhythm or emphasis on certain instruments to show how this would alter the music. However, the basic melody must still be recognizable.

“Bupkus!”

What If I Am Wrong?

• It’s alright, we are all wrong sometime or the other

• Think critically • Do not ruminate on the rights holder’s opinion • “See the gray.”• Defend library user, student, educator, faculty

rights to the fullest extent under the law

Transformative Uses

• Recast so something new is created• Used to create something for which

the original work was not intended • Use of work is in kind and amount

necessary to accomplish goal • Uses in aggregate to make a point • Use is socially beneficial

Real Court ExamplesAll Commercial Uses

• Campbell v. Acuff-Rose Music, Inc. (parody)

• Blanch v. Koons (collage)

• Perfect 10 v. Amazon.com (search engine)

• A.V. et al. v. iParadigms (new purpose)

• Bill Graham Archives v. Dorling Kindersley (to make a point or argument)

Other Copyright Exceptions• Section 108 – allows libraries and archives to make copies for library

users, interlibrary loan, replacement and preservation

• Section 109 – allows owners of locally acquired copies the right to distribute that copy (library lending, used book stores, garage sales, etc.)

• Section 110 – allows teachers to display or perform works in the face-to-face classroom and in the digital or distance education classroom via digital networks

• Section 117 – owner of a software program can make a back-up copy

• Section 121 – allows for the making of accessible copies for people with disabilities

More Copyright Exceptions

• Section 110 – allows teachers to display or perform works in the face-to-face classroom and in the digital or distance education classroom via digital networks

• Section 117 – owner of a software program can make a back-up copy

• Section 121 – allows for the making of accessible copies for people with disabilities

These exceptions don’t address every situation (go to fair use)These exceptions are not the final word (try fair use)

Digital

• Must assume copyright protection; notice

and registration not required

• Fair use applies except when ….

• License, “terms of use” defines what you

can do with the work

• Implied license sometimes can be presumed

• Point to work (URL) when possible

A way to think through your copyright situation…

this is as concrete as I am going to get

• Is your desired use of a protected work infringing?

• What exclusive rights are exercised? • Is there a specific exception that allows this use?• If not, is this a fair use?• If not, can your teaching goal be met in another

way that is not infringing?• If not, seek permission.

My recommendations…

• Work with your library community• Tell them what they can do, before telling

them what they cannot do• Ask why? Why do you want to use this work in

this way?• Help make infringing uses, fair uses• Make decisions through the librarian lens

Things to Remember

• The four factors of fair use are on a continuum

• Non-profit educational uses are not always fair

• The existence of a permissions market does not negate fair use

• Copying of entire works is sometimes OK• Transformative uses are favored• Licensing may affect your user rights

Thank You!

Carrie Russellcrussell@alawash.org

800.941.8478