Applying Copyright in Scholarship and Instruction Gail McMillan Director, Digital Library and Archives University Libraries http://scholar.lib.vt.edu March 25, 2003 Focus on two main areas 1. Research and scholarship 2. Publication Instruction

US Constitution, Article I, Sect. 8 Promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.   Copyright Law: U.S. Code, Title 17 Assigns rights and then limits them Chapters 1 and 3, largely

Copyright Law: U.S. Code, Title 17 Section 102: Original authorship stabilized Section 106: Exclusive rights of creators Section 107: Fair use, limit exclusive rights Section 108: Libraries, limit exclusive rights Section 110: Performance and displays Section 102: What can be copyrighted in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be communicated,

Who owns the copyright? Creators of original works Creators' assignees Employers: explicit works for hire New York Times et al., Petitioners, v. Jonathan Tasini et al. Greenberg v. National Geographic Magazine Why officially register your copyright? Possibly receive greater compensation, with less documentation when filing an infringement suit USC Title 17 Chapter 2 Creators' assignees AND Employers: explicit works for hire NYT v Tasini Tasini had a contract to write for the printed newspaper NYT not allowed to reproduce and resell in other media Greenberg v. National Geographic 1st 50 years on CD, registered as same as paper versions, I.e., not a derivative work Court said can’t reformat and sell without permission without changing (e.g., adding value)

Rights of copyright holders 1. Reproduction 2. Modification 3. Distribution 4. Public performance 5. Public display Title 17 U.S.C. Sec. 106

Permission or license to use a copyrighted work is NOT required if Work is a fact or an idea Work is in the public domain http://www.unc.edu/~unclng/public-d.htm Fair use http://scholar.lib.vt.edu/copyright/doesntsa.html# http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test

Public Domain Lolly Gassaway: http://www.unc.edu/~unclng/public-d.htm USC Title 17 Chapter 3

Fair Use Before using someone else's work without permission,balance ALL 4 FACTORS 1. Purpose and character of use 2. Nature of the copyrighted work 3. Amount, substantiality 4. Effect Title 17 U.S.C. Sec. 107

1. Purpose and character of use Commercial or educational use © Myth: It's OK--it's for educational purposes. For profit or not Degree of transformation; value added © Myth: I modified it; now it's mine. Pretty Woman: 2 Live Crew (Campbell, aka Skywalker, et al.) v. Roy Orbison Estate (Acuff Rose Music, Inc.), 1993/94 For criticism, commentary, news reporting, teaching, scholarship, research FAIR USE 1 of 4 FACTOR 1: What is the character of the use? http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test * Nonprofit * Educational * Personal * Criticism * Commentary * News reporting * Parody * Otherwise "transformative" use * Commercial

2. Nature of the copyrighted work Character of the work for example, fact (information) or fiction (imaginative) Worthy of (extensive) protection? FAIR USE 2 of 4 FACTOR 2: What is the nature of the work to be used? http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test * Fact * Published * A mixture of fact and imaginative * Imaginative * Unpublished Again, uses on the left /top tip the balance in favor of fair use. Uses on the right/bottom tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance. Which way is your balance tipping after assessing the first two factors?

3. Amount and substantiality © Myth: Copying just a little bit is OK. Use only what is necessary Quantity and quality in relation to whole work President Ford's memoirs: Harper & Row, Pub’rs, Inc. (Time) v. Nation Enterprises, 1985 http://www.publaw.com/fairuse.html FAIR USE 3 of 4 From http://www.publaw.com/fairuse.html President Ford contracted with Harper & Row to publish his memoirs. Harper & Row then contracted with Time magazine the exclusive right to publish, one week before the book would be shipped, a 7500 word excerpt from the book. The Nation magazine obtained a copy of the Ford manuscript several weeks before Time's publication of the article and published its own 2,250 word article that included quotes, phrases and facts from the manuscript. Following the publication of the Nation article, Time canceled publication of its article and did not pay remaining monies that were due Harper & Row. Harper & Row then proceeded to sued the Nation for copyright infringement. Weigh 4 fair use factors 1. Purpose and character of use : Commercial pub (Nation) 2. Nature of the copyrighted work : more fact than fiction but it’s up to the author to control publication 3. Amount, substantiality : Substance over-road quantity amount of the Nation's use of Ford's memoirs was not very large (300 words from memoirs) 4. Effect : The Court stated that the market effect "is undoubtedly the most important element of fair use.”

4. Effect Harm to potential market or value of a work after a portion has been used separately from the whole © Myths Attribution is as good as permission. It's free advertising. original by Brad Templeton http://www.templetons.com/brad/copymyths.html FAIR USE 4 of 4 FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions? http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test * After evaluation of the first three factors, the proposed use is tipping towards fair use * Original is out of print or otherwise unavailable * No ready market for permission * Copyright owner is unidentifiable * Competes with (takes away sales from) the original * Avoids payment for permission (royalties) in an established permissions market  

© 1997 by [your name] or Copyright by [your name] © Myths It doesn't say it's copyrighted! It's on the Web so I can use it without asking. As of March 1, 1989, the copyright warning does not have to appear for a work to be legally copyrighted. Reminders © 1997 by [your name] or Copyright by [your name] ALL RIGHTS RESERVED

Consider adding statements that grant permission or restrict use. “Permission is given to copy this work provided credit is given and copies are not intended for sale." "Use or inclusion of any portion of this document in another work intended for commercial use will require permission from the copyright owner." Insert Special Collections’ Conditions of Use clause?

Libraries and Title 17 U. S. C. Sec Libraries and Title 17 U.S.C. Sec. 108 or, Why the library can but you can’t Open to the public or to others doing research Reproduction or distribution of the work includes a notice of copyright or that the work may be protected by copyright Reproduction or distribution without profit Libraries and Title 17 U.S.C. Sec. 108 Reproduction or distribution without any purpose of direct or indirect commercial advantage Collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field Reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section

University Libraries’ Policies. http://scholar. lib. vt ETDs (Electronic Theses and Dissertations) EReserve and Reserve Desk Interlibrary Loan Photocopy Services Alternative Media CCUMC Consortium of College and University Media Centers http://www.indiana.edu/~ccumc/ Show each unit’s policies Only EReserve/Reserve is currently linked

ETDs: electronic theses and dissertations. http://scholar. lib. vt Permission: Receive and Give Request Permission: Sample letter Publishers' email addresses Negotiate with publishers Publishers' Surveys US Copyright Office Handout Permission: Receive and Give Request Permission: Sample letter Publishers' email addresses Elsevier's copyright permission policy Negotiate with publishers US Copyright Office Register your copyright Copyright Information from University Libraries Publishers' Surveys

Copyright for Instruction USC Title 17 Section 110 Limitations of certain performances and displays Face-to-face classroom settings Broadened by TEACH Act (Nov. 2, 2002) Don’t forget to apply fair use

TEACH: Technology Education and Copyright Harmonization Act Fair use standards in digital education environment Modifies Title 17 USC Sec. 110 and 112 Mediated instruction Integral part of class session Accredited nonprofit educational institution Limited to enrolled students Accurately informed about copyright compliance Reasonably prevent Retention beyond course Unauthorized further dissemination AAUP Legislative News http://www.aaup.org/Issues/DistanceEd/legsalert/newsip.htm From November 2002 Update: Intellectual Property: As one of the last actions of the regular session of the 108th Congress, both houses passed S. 487, the TEACH Act, as an amendment to another bill, HR 2215, which provided supplementary appropriations for the Department of Justice for FY 2002, and became PL: 107-273 on November 2, 2002. The TEACH Act clarifies copyright protection for use in digital distance education, and grew out of a 1999 recommendation by the Copyright office. http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm

TEACH Act: Works allowed Show nondramatic literary works Show nondramatic musical works Everything else in reasonable and limited portions All in amounts as if in face-to-face classroom

TEACH Act: Don’t use Works marketed primarily for distance education Unlawfully made or acquired copies Materials meant for additional study outside of class Use EReserve, Reserve, BlackBoard, etc.

TEACH Act: Do Copy only at direction of or under supervision of instructor Transmit as an integral part of class session that is a “regular part of the systematic, mediated instructional activities” Use © materials only when directly related to the lesson Limit to students enrolled in the course

Copyright Resources VT Library’s copyright Web site http://scholar.lib.vt.edu/copyright Copyright Management Center Kenneth Crews, IUPUI http://www.copyright.iupui.edu/dist_learning.htm Crash Course in Copyright Georgia Harper, University of Texas at Austin http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test US Copyright Law http://www.law.cornell.edu/uscode/17/ Stay Alert to Changing Copyright Legislation http://www.loc.gov/copyright/legislation/ Library of Congress, Copyright Office