What is Copyright?

What is Copyright?

What Is Copyright, and What Does It Cover?

Why?

  • It’s the law
  • It’s the right thing to do
  • It gives you rights as well as obligations

What Is Covered by Copyright

In the beginning, copyright law was intended to cover only books. During the 19th century, the law was expanded to include maps, charts, engravings, prints,  musical compositions, dramatic works, photographs, paintings, drawings, and sculptures. Motion pictures, computer programs, sound recordings, dance, and architectural works became protected by copyright during the 20th century.

Copyright protections fall under Title 17 of the United States Code and covers “original works of authorship.”

So what makes a work original?

  1. Fixity: not the idea but the fixed expression or the manifestation of the idea
  2. Originality
  3. Minimal creativity

What Is NOT Covered by Copyright

  • Works for which the copyright has expired
  • Works that federal government employees produced within the scope of their employment
  • Works clearly and explicitly donated to the public domain
  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or spontaneous  speeches or performances that have not been written or recorded)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • Works consisting entirely of information that is common property and contains no original authorship (for example, standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Fair Use & Public Domain

Fair Use & Public Domain

Fair Use

What Is Fair Use?

Fair Use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. (See Title 17, section 107.)

Fair Use in Academia

The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. The complexity of Fair Use and its importance in academia make it imperative that every member of the CSU community understands how to make judgements concerning Fair Use.

Review these Common Scenarios to help you determine whether or not Fair Use is appropriate.

What Determines Fair Use?

The following four factors are used to determine if a use is fair:

  1. The purpose of the use (e.g., commercial vs. educational)*
  2. The nature of the copyrighted work (e.g., to what extent is it a creative work)
  3. The amount of the material used (the greater the amount copied, the less likely it is to be Fair Use)
  4. The effect of use on the potential market for or value of the work

* Not all uses in an academic context are automatically considered fair!

Tools to Help You Determine Fair Use

Fair Use Evaluator: Helps users collect, organize, and document the information they may need to support a Fair Use claim and provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy.

Fair Use Checklist: From Columbia University, this widely regarded tool walks you through the necessary steps to determine if how you will use a resource falls within Fair Use. It has been road tested as well: In the recent Georgia State legal case, the court noted that the checklist was a good tool for faculty use.

Understanding Fair Use: Developed by The University of Minnesota Libraries.

Public Domain & Researching Copyright Status

What Is Public Domain?

A public domain work is a creative work that is not protected by copyright and that may be freely used by everyone.

More information available at:

University of Minnesota Libraries

Stanford University Libraries

When Is a Work in the Public Domain?

Works fall into the public domain for three main reasons:

  1. the term of copyright for the work has expired
  2. the author failed to satisfy statutory formalities to perfect the copyright
  3. the work was produced by the U.S. Government.

As a general rule, most works enter the public domain because of old age, such as any work published in the United States before January 1, 1925. Another large block of works are in the public domain because they were published before 1964 and their copyright was not renewed. (Renewal was a requirement for works published before 1978.) A smaller group of works fell into the public domain because they were published without copyright notice (copyright notice was necessary for works published in the United States before March 1, 1989).

Use the Copyright Slider Tool to determine is a work is still protected by copyright.

Creative Commons

What is Creative Commons?

Creative Commons (CC) is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools. It does not replace copyright; instead, it works alongside copyright.

Content creators may choose from a selection of free, easy-to-use copyright licenses that provide a simple, standardized way to give the public permission to share and use your creative work—on conditions of your choice. CC licenses allow you to easily change your copyright terms from the default of “all rights reserved” to “some rights reserved.”

Conversely, the application of a CC license to a piece of intellectual property tells content consumers that they may use, share, and sometimes modify your content for free.

CC licenses are frequently applied to photographs and artwork, videos, music and audio files, presentations, coursework, ebooks, blog posts, and wiki pages.

In the Classroom

In the Classroom

Using Copyrighted Works in the Classroom

Course Resources

We all have resources we have come to rely on in our courses, whether it is a tried-and-true text or a VHS from 1987. Sometimes utilizing those materials in a modern environment can be challenging because of copyright. The CSU Libraries have tools and resources to help:

  • Ebook packages allow the freedom of breaking from traditional print texts across multiple disciplines. Ebooks are available from many different publishers and with many different licences. Some allow unlimited usage; some allow multiple, concurrent users; and some are only available to one person at a time. Link to the ebook using the permalink from your library’s website.
  • The CSU Libraries provide subsidized access to several hundred million full-text articles via subscription databases and publisher ejournal collections. Instructors are strongly encouraged to identify and assign relevant articles from these collections for use as required or supplemental course readings. By linking out to full-text articles and ebooks, rather than downloading copies and storing them locally, there are no copyright restrictions or costs associated with their use, and libraries can maintain statistics on usage to better inform collection decisions.
  • Streaming videos are viewed over the web, rather than downloaded to a local device. The Libraries subscribe to many packages of streaming videos. Faculty can embed clips and create playlists: Ask your librarians how!
  • Digital rights management (DRM) refers to the rules media vendors put on a user’s ability to save, share, or otherwise copy items from their media collections. DRM may also include a limit on the number of users who can access the items simultaneously.  Each media and ebook collection has different DRM rules: Look to their help pages or ask your librarian to find out.

Showing Movies

As part of your class/within a Learning Management System (LMS) such as Blackboard/Canvas/Moodle:

Movies can be an integral part of a course’s learning materials. Showing a movie as part of a course generally falls under Fair Use, because there is no charge for admission and the movie is an integral part of your curriculum. Your campus library may even offer a service for digitizing a movie (or a section of a movie) and streaming it within your campus LMS.

 

On Campus, not part of a class:

Showing movies for entertainment can be a fun activity for students, and a way to take a break from the stress of the semester. However, public performance does not fall under Fair Use and will require the permission of the copyright owner—and perhaps a public performance fee. Some of the movies in your library collection may have public performance rights: You should check with your librarian or your media library.

Obtaining public performance rights isn’t difficult, and your library might even be able to assist you with this. It is often a matter of making a phone call or sending an email to the film distributor. Swank Motion Pictures and Criterion Pictures USA are two such service providers. If you aren’t able to pay a fee for performance, then you might consider showing a film that is in the public domain or whose creators allow public performance. The Library of Congress has some information about finding films within the public domain.

The TEACH Act

Uses that would qualify as use when materials are shared with students who are on the physical campus may not qualify as Fair Use if students are in an online course. The “Technology, Education and Copyright Harmonization Act,” commonly known as the TEACH Act, was enacted by Congress on October 4, 2002. It is a full revision of Section 110(2) of the U.S. Copyright Act. Its provisions broadened the scope of copyrighted materials that could be transmitted digitally to support distance education and courses with a digital component, with certain restrictions.

Obtaining Permissions

Overview

Permissions to use copyrighted material must be obtained when the use is not covered by copyright law and its exceptions. Permissions should be in writing and from the copyright holder. Maintain copies of all of the correspondence.

What do publishers or journals allow you to do with yours or others work? SHERPA/RoMEO is a database of publisher policies. Check SHERPA or the journal itself for information. Other resources include:

Getting Permission

Step 1: Contact the Copyright Owner

Step 2: Secure Permission

Step 3: Keep a Record

Permission requests should include:

  1. Your name, address, telephone number, and email address.
  2. Your title/position and name of university.
  3. The date of your request.
  4. A complete and accurate citation (this helps to narrow down exactly to the work you are requesting permission for and whether the requestee holds the copyright at all).
  5. A precise description of the proposed use of the copyrighted material as well as when and for how long the material will be used. Be sure to state if you intend to provide online open access to this resource. Include the URL to the digital collection if applicable.
  6. If mailed by post, incorporate a signature line for the copyright holder including their title if they are representing a company and the date. If this is an email request, convert the email to PDF and save. It helps to rename the file and keep in a folder of permission requests if you are seeking more than one. Example: IEEE_Leroy_permission2010.pdf (IEEE = publisher name; Leroy = author’s name; permission2010 = object and date of request). Convert response to PDF as a record, it helps to add YES or NO before “permission” in the  file name structure (example: IEEE_Leroy_YESpermission2010.pdf)

What If I Reach a “Dead End”? Can It Be Considered an Orphan Work?

Problems:

  1. You can’t identify a copyright owner
  2. You can’t locate the copyright owner
  3. You’ve contacted the copyright owner but receive no response

Possible solutions:

  1. Reevaluate the possibility that your use is fair
  2. Replace the materials with other works
  3. Alter your planned use
  4. Conduct a risk-benefit analysis

Resources: Places to Help Find the Copyright Holder

Common Scenarios

We will next examine the fair use merit for different types of copyrighted works used in the classroom.

Journal Article for Classroom Use

SCENARIO 1: A professor copies one article from a periodical for distribution to the class.

FAIR USE? Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh against fair use.

Posting Copyrighted Article to Web Page

SCENARIO 2: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.

FAIR USE? No, if access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder’s right of public distribution. If access to the web page is restricted, then it is more likely to be fair use.

Course Packs

SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack.

FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic course pack. It’s the instructor’s obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following: clearance services, university bookstores or copy shops, or Department administration.

Textbooks

SCENARIO 4: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.

FAIR USE? No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.

SCENARIO 5: A professor decides to make three copies of a textbook and place them on reserve in the library for the class.

FAIR USE? No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place a copy of the textbook, not the copies, on reserve.

Public Domain Materials

SCENARIO 6: A teacher copies a Shakespearean play from a copyrighted anthology.

FAIR USE?  Yes. The play is in the public domain and not subject to copyright protection.

Unpublished Letters

SCENARIO 7:A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives.

FAIR USE? The answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution’s office of legal affairs for advice.

Journal Article for Personal Use

SCENARIO 8: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.

FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference.

Out-of-Print-Book

SCENARIO 9: A library has a book that is out of print and unavailable. The book is an important one in the professor’s field that she needs for her research. The professor would like to copy the book for her files.

FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.

SCENARIO 10: Using the same facts as explained in SCENARIO 10 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web?

FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder’s public distribution of the book.

Movies

SCENARIO 11: The library owns a film on DVD that is typically viewed each semester during class time; the DVD is held within the Reserves collection. This semester, the course in question will have two online sections and one on-campus section. The faculty member has asked the library whether a digital copy could be made available via the Learning Management System for the distance education students. The film is not currently available for the library to purchase a copy via its streaming media provider.

FAIR USE? Maybe. Because the course in question is online, Fair Use must be considered in tandem with the TEACH Act, which specifically addresses distance education. Per Section 110(2) of the TEACH Act, our instructor would have to pare down the film to “reasonable and limited portions” to show them to the online students or make them available over the internet to face-to-face students. Each individual institution must decide for itself the definition of reasonable and limited.

Faculty Author Rights

Faculty Author Rights

Information for Faculty Authors: What Are Your Rights?

What are your intellectual property rights as the creator of content? Do you own the copyright to your published articles (Answer: You may or may not depending on the contract you signed with the publisher). What options do faculty authors have for retaining their copyright? We’ll explore the above questions in this section.

Copyright holders retain 5 basic rights:

  1. Right to Reproduce
  2. Right to Prepare Derivative Works
  3. Right to Distribute
  4. Right to Display Publicly (related to artistic works)
  5. Right to Perform Publicly (related to musical or dramatic works)

What Could You Lose If You Sign Away Your Rights (e.g., to a Publisher)?

You could lose the right to:

  • Use your work in a course pack
  • Place copies on print or electronic reserve
  • Mount a copy on your web site
  • Deposit a copy in your institutional repository
  • Distribute a copy to colleagues

If you transfer your copyright to a publisher, your rights will be limited by Fair Use when using your work in the future. Traditionally, academic publishers have required that authors transfer copyright to them, but this standard is changing. More and more campuses are creating Open Access policies that require authors to retain some rights to their work. The assignment of non-exclusive rights to publishers is becoming much more common.

So, What Should I Do?

A variety of tools are available to help you navigate and negotiate for keeping some of your rights. The Scholarly Publishing and Academic Resources Coalition (SPARC) can walk you through the process of creating an Author Addendum to attach to a journal publisher’s copyright agreement to ensure that you retain certain rights. You can use these forms to negotiate to retain the copyright to your work:

Additionally, the Authors Alliance and Creative Commons have developed a tool for authors to terminate their transfer of rights for previously published works: ToT Tool

Librarians are happy to help you:

  • Negotiate with the publishers to retain explicit ownership of your content.
  • Transfer, via an author addendum, to the publisher only those rights needed for publication.
  • Specify other rights of particular value to you or your home institution.
  • Explore publishing opportunities that will facilitate the widest dissemination of your work to help you fulfill your personal and professional goals as a scholar.

Court Rulings

Court Rulings

Relevant Court Rulings

U.S. Copyright law is constantly evolving based on court rulings. The below cases are of particular note to academic institutions and faculty members.

Texaco Case

American Geophysical Union v. Texaco Inc. – 60 F.3d 913 (2d Cir. 1994)

In 1995, Texaco paid more than $1 million dollars to six publishers because a company researcher systematically made copies of scientific articles from a single-use subscription without obtaining permission from the publisher. That the research was for commercial gain, the court found that Texaco would probably not have purchased multiple copies of the journals, and the copies took the place of purchasing multiple copies (thereby competing with the publishers’ ability to collect license fees) all ruled against Fair Use.

Kinko’s Case

Basic Books, Inc. v. Kinko’s Graphics Corporation – 758 F.Supp. 1522 (S.D.N.Y. 1991)

Kinko’s in all paid about $2 million to several publishers for making and selling course packs. Kinkos made the copies, assembled the packs, and sold them without seeking permission for the copyrighted materials.

UCLA Case

AIME et al. v. Regents of UCLA et al. – Case number 2:10-cv-09378-CBM-MAN Document 48

The Association for Information Media (AIME), a NY-based trade group, and AVP, an educational video publisher and one of AIME’s clients, sued UCLA for streaming videos for student use. The case has been thrown out. Twice. Notable in this case is that AIME and AVP are not the copyright holders.

Georgia State Case

Cambridge University Press et al. v. Patton et al. – Case number 1:08-cv-01425-ODE

This case involves several publishers suing several individuals at Georgia State for using copyrighted materials in e-reserves.  Much has been written about the case as it has far reaching implications. An original ruling found mostly in favor of Georgia State, but appeals have been filed and oral arguments on the appeal have begun. The case is still ongoing as of July 27, 2017, when the 11th Circuit Court of Appeal heard arguments.

First Sale Doctrine

Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S. Mar. 19, 2013)

This case went all the way to the U.S. Supreme Court. Supap Kirtsaeng, a graduate student at the University of Southern California had his friends and family buy hundreds of low-cost Asian editions of Wiley textbooks. He then had them shipped to the US and resold them. Wiley sued and lost. Wiley appealed and won. The Supreme Court ruled in favor of Kirtsaeng.

Google Books

Author’s Guild et. all v. Google Inc – Case 1:05-cv-08136-DC Document 1088

This case involves Google’s project to digitize millions of books in university libraries as well as those commercially available. The Author’s Guild sued, and the case was dismissed in New York district court. The Author’s Guild appealed, but the U.S. Court of Appeals for the Second Circuit ruled in favor of Google and Fair Use.

Copyright with Covid-19

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