Copyright and Fair Use – What Clinicians and Educators Need to Know October 19, 2006 Robert B. Donin General Counsel Dartmouth College (603) Bill Garrity Director of Biomedical Libraries Dartmouth College/DMS & DHMC (603) © 2006 Trustees of Dartmouth College

CME Learning Objective Know the basics of copyright and fair use as they apply to academic environments

CME Accreditation “The Dartmouth-Hitchcock Medical Center is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians.”

Conflict of Interest Neither Bob Donin nor Bill Garrity has any financial relationship to those in a position to control the content of this presentation This presentation has no commercial support

Introductions

1. What is a Copyright? Exclusive right of creator of original “work of authorship” “fixed in any tangible medium of expression” to exercise certain controls over that work Copyright vs. Physical Property – © purely intangible - should not be confused with material object © purely intangible - should not be confused with material object Example: Garrity purchases CD-ROM copyrighted by Donin Corp. Garrity can lawfully use CD-ROM and sell to Katz, but may not make and distribute copies without Donin Corp’s permission Example: Garrity purchases CD-ROM copyrighted by Donin Corp. Garrity can lawfully use CD-ROM and sell to Katz, but may not make and distribute copies without Donin Corp’s permission

2. What can be Copyrighted? “Works of authorship” Examples: literary works (books, articles, fiction and non- fiction) musical works (both score and lyrics) pictorial/graphic works, art, sculpture, photographs web pages, motion pictures, audiovisual works, video games computer software sound recordings

3. What Cannot Be Copyrighted? Ideas, procedures, concepts Facts United States Government works Titles and simple phrases Out-of-copyright works (term expired - see below)

4. Who Owns the Copyright? General rule: natural person who is author/creator copyright can be joint Exception: in case of “work made for hire” copyright belongs to employer of creator: prepared by employee within the scope of employment; or prepared by independent contractor per written agreement which identifies the work as a “work made for hire” AND work falls within one of nine categories listed in Copyright Act Exception to the exception: by College policy, works prepared by Dartmouth teaching faculty generally are not considered “works made for hire”

5. How/When Does an Author Obtain a Copyright? © arises automatically by law © arises at instant of creation -- as soon as work is “fixed in any tangible medium of expression”

Isn’t Registration with the Copyright Office in Washington, D.C., Required? Isn’t Registration with the Copyright Office in Washington, D.C., Required? No - registration only required to bring infringement action for statutory damages

6. Is It Necessary to Put a Copyright Notice on the Work? Not any more - works created since March 1, 1989, don’t need affixed notice (e.g., © 2006 Trustees of Dartmouth College) but notice is still advisable “Copyright” or “Copr.” may be used instead of “©”

7. What is the Period of Copyright Protection? Works owned by individuals: life plus 70 years Works-made-for-hire: 95 years from date of first publication, or 120 years from date of creation, whichever is shorter Eldred v. Ashcroft: challenge to 1998 extension of term by 20 years – Supreme Court rejected Eldred v. Ashcroft: challenge to 1998 extension of term by 20 years – Supreme Court rejected

8. What are the Exclusive Rights of the Copyright Owner? Five exclusive rights: 1.To reproduce work in copies 2.To prepare derivative works (i.e., adaptations) based on copyrighted work 3.To distribute copies of work 4.To perform work publicly (i.e., to recite, play, dance, or act it) 5.To display work publicly

9. Are the Exclusive Rights of Copyright Absolute? No - Copyright Act contains exceptions that allow limited use of copyrighted work without owner’s permission Most important exceptions: Fair use “Instructional exemption” “Classroom copying” guidelines

Exceptions to Copyright Owner’s Exclusive Rights (cont’d) Fair Use: Limited use by person other than copyright owner for purposes such as criticism, teaching, scholarship, or research Four-part test: 1.Purpose and character of use (including commercial vs. non-profit educational) 2.Nature of copyrighted work 3.Amount and substantiality of portion used vs. work as whole 4.Effect on potential market for or value of work

Exceptions to Copyright Owner’s Exclusive Rights (cont’d) “Instructional Exemption”: Performance or display of a work by teachers or students in the course of face- to-face teaching

Exceptions to Copyright Owner’s Exclusive Rights (cont’d) “Classroom Copying” Guidelines: Guidelines agreed upon by the publishing industry and educational organizations at time of the 1976 Copyright Act establish “safe harbor” for classroom copying for educational use, but provide limited help because of “brevity” and “spontaneity” requirements

Exceptions to Copyright Owner’s Exclusive Rights (cont’d) What do the Classroom Guidelines Permit? Guidelines are on Dartmouth website at: Basic requirements: Spontaneity Spontaneity “The inspiration and decision to use the work and the moment of its use... are so close in time that it would be unreasonable to expect a timely reply to a request for permission.” Brevity Brevity Cumulative effect Cumulative effect

10. Are Databases Protected by Copyright? Facts not protected Compilation may be protected, but standard is strict one: originality in choosing, grouping or organizing facts originality in choosing, grouping or organizing facts only elements added by author - not underlying facts - are protected only elements added by author - not underlying facts - are protected

11. Peer-to-Peer File Sharing Copying of commercial music and video files without permission of the copyright holder for personal enjoyment is generally illegal Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (2005) – File-sharing services such as Grokster may be held liable for copyright infringement committed by users of their software. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (2005) – File-sharing services such as Grokster may be held liable for copyright infringement committed by users of their software. Case turned on Grokster’s “principal, if not exclusive, intent to bring about infringement,” not on the mere fact that it provided file-sharing technology Case turned on Grokster’s “principal, if not exclusive, intent to bring about infringement,” not on the mere fact that it provided file-sharing technology Not all file-sharing is illegal Sharing with permission of copyright owner Sharing with permission of copyright owner Fair use Fair use See Peer-to-Peer File Sharing and Copyright Law

12.If What I Want to Do Is Not Covered by Any of the Exceptions, How Do I Get Permission to Reproduce or Distribute Someone Else’s Copyrighted Work? 1.Check the Dartmouth Library database of licensed materials; or 2.Find the copyright owner and ask permission; or 3.Obtain permission through a clearing house such as Copyright Clearance Center.

How Do I Get Permission to Reproduce or Distribute Someone Else’s Copyrighted Work? 1.Check the Dartmouth Library database of licensed materials Dartmouth may already have rights to reproduce the work

How Do I Get Permission to Reproduce or Distribute Someone Else’s Copyrighted Work? (cont’d) 2.Find the copyright owner and ask permission Permission may be oral or written; written is better Permission may be oral or written; written is better No special form for request, but include: publication you wish to use; precise pages/chapters/photos, etc. you wish to use; number of copies you want to make; purpose of use (e.g., “a handout in a course on microbiology at Dartmouth Medical School”) No special form for request, but include: publication you wish to use; precise pages/chapters/photos, etc. you wish to use; number of copies you want to make; purpose of use (e.g., “a handout in a course on microbiology at Dartmouth Medical School”) Copyright owner may charge fee, but you may be able to negotiate low/no fee Copyright owner may charge fee, but you may be able to negotiate low/no fee

How Do I Get Permission to Reproduce or Distribute Someone Else’s Copyrighted Work? (cont’d) 3.Obtain permission through a clearing house such as Copyright Clearance Center ( Web-based system for obtaining permission Web-based system for obtaining permission Open an account Open an account Standard fees Standard fees

Common Misconceptions All educational uses are fair use Giving authors credit absolves infringement If an author dies, his/her work then moves into public domain Adding something to the copyrighted work precludes infringement Works that do not have a copyright notice are in the public domain Material on the web is in the public domain

Copyright Resources Dartmouth College University of Texas “Crash Course in Copyright” Indiana University U.S. Copyright Office

Copyright Resources (con’t) Cornell University “Campus Copyright: Rights and Responsibilities” ARL, AAU, AAUP, and AAP “Copyright Law for Libraians and Educators,” Kenneth D. Crews, 2 nd ed., ALA, 2006