March 28, 2003 SOM Northrop MBA Committee Alien Nation Copyright in the 21 st Century Rosemary A. Chase George Mason University Libraries University Copyright Officer March 2003

Intellectual Property Issues in Higher Education Digital Millennium © Act – TEACH Act – What we need to know But first…

March 28, 2003 SOM Northrop MBA Committee Presume EVERYTHING IS OWNED [copyrighted, patented, trademarked] …by someone.

March 28, 2003 SOM Northrop MBA Committee Only the owner can copy distribute perform display or make a derivative work.

March 28, 2003 SOM Northrop MBA Committee “FAIR USE” LETS YOU USE OTHERS’ WORKS…

March 28, 2003 SOM Northrop MBA Committee …BUT NOT VERY MUCH, AND NOT FOR VERY LONG.

March 28, 2003 SOM Northrop MBA Committee Sometimes you need to ask permission …ahead of time.

March 28, 2003 SOM Northrop MBA Committee What is Copyright? … exclusive rights granted only to the owners of original works. Literary… musical… artistic…etc. A set of EXCLUSIVE RIGHTS

March 28, 2003 SOM Northrop MBA Committee Basis for U.S. Copyright  In the early 18 th century, authors were given a 14 year exclusive term and the opportunity to renew for an additional 14 years, if they were still living … Statute of Anne: 1710 Model for U.S. Constitution, Article I, Section 8.

March 28, 2003 SOM Northrop MBA Committee U.S. Constitution Article I, Section 8: “The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Title 17 of U.S. Code - Federal Copyright Law

March 28, 2003 SOM Northrop MBA Committee Copyright...  Work Must Be: –Original expression –Fixed in a tangible form Begins: –At the moment original work is fixed Example: Graphic created in PhotoShop is protected as soon as saved to disk.

March 28, 2003 SOM Northrop MBA Committee Non-Protected Works - Cannot be Copyrighted  Facts  Titles  Names  Short Phrases  Ideas

March 28, 2003 SOM Northrop MBA Committee Public Domain  Non-Protected Works  Lost Copyright  Abandoned Works  Expired Copyright  Federal Government Works

March 28, 2003 SOM Northrop MBA Committee Registration & Notice  Copyright may be registered  © Notice may be placed on work  Neither are required in order to be “copyrighted”

March 28, 2003 SOM Northrop MBA Committee §. 106: Owners have exclusive rights to…  Reproduce - make copies  Make derivative works  Distribute - copies  Perform publicly  Display publicly

March 28, 2003 SOM Northrop MBA Committee Statutory Exceptions “Limitations on Exclusive Rights”  Fair Use – section 107  Reproduction by libraries and archives – section 108  Exemptions of certain performances and displays – section 110

March 28, 2003 SOM Northrop MBA Committee What is Fair Use? It is the portion of a work which is considered to be a fair amount to reproduce for certain fair purposes. UHMM…could you be more specific?

March 28, 2003 SOM Northrop MBA Committee § 107. Limitations on exclusive rights: Fair use “ Notwithstanding the provisions of section 106, the fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, …

March 28, 2003 SOM Northrop MBA Committee § 107: Fair Use … for purposes such as: – criticism, comment, news reporting –teaching (including multiple copies for classroom use) –scholarship –or research …is not an infringement of copyright.

March 28, 2003 SOM Northrop MBA Committee § 107: Fair Use “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include…”

March 28, 2003 SOM Northrop MBA Committee …all of these (the famous “four factors”) 1. Purpose 2. Nature 3. Amount 4. Effect All Four Factors must be considered.

March 28, 2003 SOM Northrop MBA Committee §. 107: Fair Use  Purpose/Character of Use - commercial or nonprofit educational?  Nature of Work - fact or fiction?  Amount and Substantiality - 10%??  Effect of use on Market or Value

March 28, 2003 SOM Northrop MBA Committee Agreement on Guidelines for Non-profit Classroom  From the House Report which accompanied the Copyright Act of 1976  Only considered contemporary technology – i.e. photocopies & phono records  The Guidelines (included in your handouts) give examples, definitions and prohibitions.

March 28, 2003 SOM Northrop MBA Committee Digital Millennium Copyright Act… Known as the DMCA  Signed October 1998  Intended to bring FAIR USE to the digital environment but did NOT

March 28, 2003 SOM Northrop MBA Committee DMCA Digital Millennium Copyright Act  What did it change? –Reduced liability for OSPs (Online Service Providers) such as libraries and other technology providers for what their clients do with institutional equipment –

March 28, 2003 SOM Northrop MBA Committee DMCA Digital Millennium Copyright Act  What did not change? §107- Fair use was not expanded to include digital environment.

March 28, 2003 SOM Northrop MBA Committee DMCA Digital Millennium Copyright Act  Why should I be informed about the DMCA? –When our campus receives “cease & desist” notices based on alleged infringement found on Mason’s servers, closer scrutiny may not be far behind… –DMCA’s offer of reduced liability has strings attached…

March 28, 2003 SOM Northrop MBA Committee DMCA Digital Millennium Copyright Act –STIPULATIONS include Institution agent required to register with the Library of Congress to field complaints Instruction on copyright and policy must be offered Posted notices required on equipment

March 28, 2003 SOM Northrop MBA Committee Where is my fair use?  TEACH Act – signed November 2002  legalizing fair use for distance learning – and other avenues for online publishing in non-profit education…

March 28, 2003 SOM Northrop MBA Committee TEACH Act ( was S.487)  Technology, Education and Copyright Harmonization Act. –Passed the Senate in June 2001 Introduced in the House as HR 2100 Twenty-First Century Distance Learning Enhancement Act and passed the House committee UNCHANGED.

March 28, 2003 SOM Northrop MBA Committee TEACH Act  HR 2215 – Department of Justice Re- Authorization Legislation –Includes the TEACH Act language, easing copyright rules for Distance Learning –Signed into law November 2, 2002.

March 28, 2003 SOM Northrop MBA Committee TEACH Act  Alters §110(2) to include Distance Education & digital transmissions in addition to “closed-circuit” T.V.  Restrictions include: –Limiting access to enrolled students –Providing technology measures to prevent retention of the work in accessible form

March 28, 2003 SOM Northrop MBA Committee TEACH Act  The GOOD NEWS –Expands allowed works Display/performance of almost all types Quantity limitations –Expands receiving locations All locations – not just closed-circuit T.V.

March 28, 2003 SOM Northrop MBA Committee TEACH Act More GOOD NEWS… –Allows storage Retention and access for limited time –Allows digitizing of analog materials Only if not already available in that form

March 28, 2003 SOM Northrop MBA Committee TEACH Act  The BAD NEWS –Law still based on “mediated instructional activities” –Institution must impose restrictions on access –Encourages increased centralization of Distance Learning course design and implementation …which may lead to increased content monitoring Raising issues of academic freedom –Not the same broad rights as “face to face” classroom allowances

March 28, 2003 SOM Northrop MBA Committee TEACH ACT For Instructors…  What’s allowed –“reasonable and limited portions” of dramatic or non dramatic literary and musical works, “in an amount comparable to that which is typically displayed in the course of a live classroom session.”

March 28, 2003 SOM Northrop MBA Committee TEACH Act For Instructors  What’s off limits for digitization –Anything marketed in that format –Anything “not lawfully made and acquired” under U.S. Copyright Act.

March 28, 2003 SOM Northrop MBA Committee What has TEACH Act done for Electronic Reserves?  …nothing. Legislation specifically excludes Electronic Reserves  We continue to rely on the old CONFU Guidelines.

March 28, 2003 SOM Northrop MBA Committee Electronic Reserves CONFU GUIDELINES IN BRIEF  Documents are accessible only by faculty name and course  Access is limited to currently enrolled students and faculty  Password is assigned to each instructor  Faculty may LINK to electronic library reserves from their department pages or personal pages

March 28, 2003 SOM Northrop MBA Committee Electronic Reserves  The first page of each reading/article must have a full bibliographic citation.  DMCA requirement: A copyright notice must appear on the first page of each document to accompany the complete citation (replaces the generic stamp used for so many years: “This material may be protected by copyright law, Title 17, U.S. Code.”)

March 28, 2003 SOM Northrop MBA Committee Why isn’t everyone using E-reserves?  Most book chapters are not permitted when permission is requested.  Students say it takes too long to download the readings.  Professors still want to scan their required readings onto web courseware… risky business…

March 28, 2003 SOM Northrop MBA Committee Using Course Ware Q. Can I scan articles into WebCT without getting permission? After all, it IS password protected and no one can get to it. A. Not more than one semester. We recommend letting the Library do the scanning and taking on the permissions responsibility, not to mention the cost.

March 28, 2003 SOM Northrop MBA Committee According to DMCA  As University personnel, it is your responsibility to: –Inform your students of the restrictions discussed today –Instruct your students on proper attribution, acknowledgments and citations to appear on each reading copied –Resist the temptation to turn a blind eye to the portion limitations and systematic abuse

March 28, 2003 SOM Northrop MBA Committee Kinko’s Case  The added damages in the Kinko’s case were NOT based on financial loss to the publishers.  “Kinko’s had failed to instruct its employees in the pertinent aspects of copyright law…[so that] substantial damages are necessary to deter Kinko’s future infringements.” P. 625, Ginsburg et al. Liability Issues…

March 28, 2003 SOM Northrop MBA Committee  You cannot be “directed by a higher authority” to do anything that you suspect would be an infringement.  Intent to infringe is NOT required, to be found liable.  Often university policies do NOT deal with any new technology. Liability Issues…

March 28, 2003 SOM Northrop MBA Committee Question...      Is it OK for faculty to photocopy for their students the information they have printed off the Web? NO, not unless they have proof it’s PD. Their only legal copy is the personal copy printed/downloaded from the web site. Each student should print out her own copy.

March 28, 2003 SOM Northrop MBA Committee Question…..      Can a professor use a student essay from last semester in a collection of readings for future semester course packet or reserves? –Yes, but only with express written consent from each student author.

Can a collection of photocopied articles and book chapters (course reader) ever be considered a “fair use” for course reserves? NO Any compilation of previously published readings is considered a new publication. Question...      

Can a stack of photocopied loose articles and book chapters ever be considered a “fair use” for electronic reserves? It might be, but only the first time - independently accessed by individual students. Question...      

March 28, 2003 SOM Northrop MBA Committee Questions?????? NO and NO. How about scanning in newspaper articles – the newspaper is PD, right?… Wrong. Can we scan into ERS a set of maps? Aren’t maps facts, like common knowledge?

March 28, 2003 SOM Northrop MBA Committee Is an instructor allowed to put on reserve, a photocopy of a textbook or workbook that can be bought in the bookstore? Question...       NO.

March 28, 2003 SOM Northrop MBA Committee In conclusion  We are not police officers, but we do have responsibilities and should take them seriously.  Remember: These are not your personal rules. But it is a good idea to take the responsibility to educate your university community and to promote compliance. It is your responsibility to uphold University policy & promote academic integrity.

March 28, 2003 SOM Northrop MBA Committee Bottom line… Educational purpose –does NOT equal FAIR USE. 10% IS NOT ALWAYS FAIR USE. OUT-OF-PRINT does NOT mean out-of -COPYRIGHT. WWW is NOT public domain.

Copyright Assistance Office George Mason University Libraries MSN 5D9 Johnson Ctr. Rm. 120 George Mason University Fairfax, VA Monday – Friday: 8:00 – 4: