Digital Library and Archives, University Libraries, Virginia Tech Legal Tightrope Walking: Copyright and Fair Use in Digital Libraries, WebCT, etc. Applying Copyright in Scholarship and Instruction Gail McMillan Digital Library and Archives, University Libraries, Virginia Tech http://scholar.lib.vt.edu Radford University National Library Week 2004 U.S. Consitution Article I Section 8 | Clause 8 - Patent and Copyright Clause of the Consitution. [The Congress shall have power] "To 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." We will review rights and obligations outlined in US copyright law and cover the four criteria that must be addressed under the Fair Use Guidelines. If there is interest we can also review the TEACH Act and discuss what may be different for teaching and learning in the distributed environment. We will also review of some of the key resources that can help faculty answer their questions about copyright law. I AM NOT A LAWYER. The key principle we want to impart is: if you don’t own it you shouldn’t use it without permission unless you have, in good conscience, applied all four of the fair use factors and the balance tips in favor of fair use.

Copyright Law: U.S. Code, Title 17 Section 102: Original authorship stabilized Section 106: Exclusive rights of creators Limitations to exclusive rights Section 107: Fair use Section 108: Library services Section 110: Instruction--TEACH Act http://fairuse.stanford.edu/ Section 102: What can be copyrighted? original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be communicated, USC Title 17 Chapter 2 Creators Creators' assignees Employers: explicit works for hire As of March 1, 1989, the copyright warning does not have to appear on a work for it to be legally copyrighted.

Rights of copyright holders 1. Reproduction 2. Modification 3. Distribution 4. Public performance 5. Public display Title 17 U.S.C. Sec. 106 Public performance and public display are particularly relevant issues in the TEACH Act which brings distance education more inline with what is not-copyright-infringement in face-to-face classroom instructional sessions. It's publicly available on the web so I can use it without asking, right? Not.

Permission or license to use a copyrighted work is NOT required if Work is a fact or an idea Phone number, earth is round Public domain US government documents Old: http://www.unc.edu/~unclng/public-d.htm Fair use http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test TEACH Act

Fair Use © Myth: It's OK--it's for educational purposes. Before using someone else's work without permission, weigh ALL 4 FACTORS 1. Purpose and character of use 2. Nature of the work 3. Amount, substantiality 4. Effect http://www.copyright.iupui.edu/ checklist.htm

1. Purpose and character of use Commercial or educational use For profit or not Degree of transformation; value added For criticism, commentary, news reporting, teaching, scholarship, research FAIR USE 1 of 4 Another way to look at how to balance these issues is presented in the NEXT SLIDE. FACTOR 1: What is the character of the use? http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test 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

2. Nature of the copyrighted work Worthy of (extensive) protection? Character of the work? fact (information) or fiction (imaginative) Published facts weigh in favor of fair use Unpublished original expressions weigh in favor of seeking permission FAIR USE 2 of 4 Facts and ideas cannot be copyrighted but the way that you describe and present them can. (Brad says: expression and structure. ) Think of it as a continuum between unprotected ideas and facts and protected expression. FACTOR 2: What is the nature of the work to be used? http://www.utsystem.edu/OGC/IntellectualProperty/copypol2.htm#test weigh in favor of fair use: *Fact *Published tip the balance in favor of seeking permission: *Imaginative *Unpublished Is the letter you wrote to your high school sweetheart his/hers to publish?

3. Amount and substantiality Use only what is necessary Quantity and quality in relation to whole work FAIR USE 3 of 4 a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. from http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test NOT FAIR USE (from http://www.publaw.com/fairuse.html) 300 words quoted in a magazine article from approximately 30,000 words in President Gerald Ford's manuscript of his memoirs [1979 Time mag purchased pre-pub serial rights from Harper & Row, but The Nation scooped, from http://cyber.law.harvard.edu/people/tfisher/FairUse1.htm] 200 words quoted from the unpublished letters of J.D. Salinger in an unauthorized, published biography, 1987 from http://www.publaw.com/fairuse.html http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html Fair use. Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on one page of Hustler magazine. Rev. Falwell made several hundred thousand copies of the page and distributed them as part of a fund-raising effort. Important factors: Rev. Falwell's copying did not diminish the sales of the magazine (since it was already off the market) and would not adversely affect the marketability of back issues. A poster of a "church quilt" was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).) Do you own the copyright to the email you receive?

4. Effect Harm to potential market or value of a work after a portion has been used separately from the whole 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 Re the Ford case and weighing all 4 fair use factors Purpose and character of use : Commercial pub (Nation) Nature of the copyrighted work : more fact than fiction but it’s up to the author to control publication Amount, substantiality : Substance over-road quantity amount of the Nation's use of Ford's memoirs was not very large (300 words from memoirs) Effect : The Court stated that the market effect "is undoubtedly the most important element of fair use.”

Fair use Did the scales tip in favor of fair use after weighing all 4 factors? If not Ask for permission Use library services Title 17 U.S.C. Sec. 108 Libraries can but individuals can’t It's OK to use someone else’s work as long as I give proper attribution It’s like free advertising. Open to the public or to others doing research Notice of copyright Reproduction or distribution without profit Reserve Services Copying articles, chapters Limiting to university community Limiting to one term, not sequential Course Management Systems

You asked but they never responded. You don’t have permission. Copyright permission services Copyright Clearance Center http://copyright.com RSiCopyright http://www.rsicopyright.com/ Association of American Publishers http:// www.publishers.org You asked but they never responded. You don’t have permission. CCC: A service charge is applied per item using the following formula: ($ .015 per page) x (# of pages) x (# of students). The minimum service charge per item requested is $2.50; the maximum service charge per item is $6.50. In addition to the service charge, you pay a royalty fee set by the copyright holder which is then paid to the copyright holder. https://www.copyright.com/Help/HelpEccsFAQ.asp CCC title catalog of publications (pre-authorized) “(Title) (Volume/Edition) by (Author). Copyright (Copyright Year) by (Copyright holder). Reproduced with permission of (Copyright holder) via Copyright Clearance Center." Four to six weeks prior Info@vopyright.com (978) 646-2600

Copyright Resources Copyright Management Center (IUPUI) http://www.copyright.iupui.edu/ Crash Course in Copyright (UTAustin) http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm Library of Congress, Copyright Office http://lcweb.loc.gov/copyright/ Legal Information Institute (Cornell) http://www4.law.cornell.edu/uscode/17/ Stanford University Libraries http://fairuse.stanford.edu TEACH Toolkit http://www.lib.ncsu.edu/scc/legislative/teachkit/guidelines.html