Jeremy Rowe Copyright Planning Issues

Technology Empowers Making users: producers publishers distributors

Publishers and distributors have been vocal in legal, legislative and policy forums. The major concerns are effect on potential markets and loss of control once materials are digitized. Intellectual resources are increasingly seen as assets and tangible property.

There are few clear-cut answers. Most decisions are made within a benefit/risk continuum for each use The continuum is constantly shifting as the balance between access and control is redefined

Copyright Protects tangible works - giving the creator exclusive right to publish, duplicate, display, and prepare derivative works and to determine and control when others may do so.

Copyright Original Purposes: Protect intellectual property Preserve market for author Provide access for educational purposes Now combine with: Trademark, Trade Secret, Patent

The technologies change faster than the policy environment. Duration of protection has been continually expanding years years years Life of author + 50 years 1998 (US) 2001(EU) - Life + 70 years

Background English publishers vs Stationer’s Charter Authors vs publishers Film rights vs books Musicians vs piano rolls Film/television vs parodies Publishers vs photocopiers Classrooms vs video courses Film Distributers vs VCRs

Background Music Rights holders vs samplers Business Process Patents Publishers and software producers vs digital copies Classrooms vs Internet courses Satellite and Cable TV vs “card mechanics” Teach Act Music publishers vs P2P file exchange

1998 Digital Millennium Copyright Act Extends protection, delays "public domain" additions for 19 years ISP provider protection Strengthens copyright protection and management systems Distance Education study Protection of personal information Boat hull protection Eldred v. Ashcroft challenge

Open Source Reactions Open Source Software (Linux, Apache, Open Source Applications Foundation) P2P Networks Shared Content (project Gutenberg, MIT, Wikipedia, Public Library of Science) General Public Licenses Creative Commons

Copyright Protects Literary works Musical work Dramatic works Pantomimes and choreographic works Pictorial, graphic, and sculptural works Sound recordings

Rights Of The Copyright Holder Copy or reproduce Prepare derivative works (e.g., digitize images) Distribute or market copies Public performance and display (e.g., electronic) Moral rights Can license (e.g., get permission for) some or all of these rights Public domain works:

Creators often sign away rights to publishers which require obtaining permission to duplicate, distribute, or post on WWW pages. Academic Exemption as custom not codified in law or contract.

Using Materials Created By Others Component materials Copyrightable material: Original expression Fixed in tangible medium Notice and publication are no longer required Moral rights: integrity and attribution

“ Fair Use” Criteria 1. The purpose and character of the use. 2. Nature of the Copyrighted work. 3. The amount and substantiality of the portion used in relation to the whole work. 4. The effect on the potential market for, or value of the Copyrighted work. “ Fair Dealing ” - single copies for research and private study - ~ 10%

Differences in international copyright ”Fair Use” For a 1947 publication: UK public domain 1997 US coverage until 2042 China and most WIPO until life of author + 50 For a 1948 publication Canadian public domain

For Each Component Determine Need for Permission Guidelines - narrower than fair use Fair use - more likely if permission difficult (or outrageously expensive) to get Need permission to use materials for more than one semester (electronic reserves) Must comply with copyright and other laws Document Permission in writing

Materials Produced By faculty: Contracts or policy determines ownership By production team: To what extent is each contribution copyrightable? By students: Are they employees or under contract? Do they have the only copies? How do you know the work is original? Unless paid by institution, normally students will own the copyright in their work. This means, for example, their work can't be posted on a web site without their permission.

Use Of Copyrighted Materials In Password Protected Or Secure Environment Must follow guidelines for electronic reserves (or obtain written permission) Only one copy of any copyrighted item for one semester only. The item cannot be used again without written copyright permission. The instructor is responsible for obtaining permissions. A copy of one chapter from a work of a single author or copies of not more than three chapters or articles from a collective work or periodical volume may be used over the course of a semester

Project Planning Plan for the broadest potential uses Review sources of all material Check licenses and restrictions Obtain needed permissions

Alternative Production Resources Owned or self-produced materials Public Domain materials Licensed clip art Commissioned work Copyright Commons General Public Licenses (GPL)

Who Owns Multimedia Materials, The Creator Or Institution? Copyright law - Author/creator of work is usually the owner of copyright May be multiple authors - this is a big fact question, contract to explain Independently copyrightable contributions Mutual intent Clarify in writing

Academic Tradition Universities have released interest in copyrights to faculty for traditional academic publications (e.g., journal articles, text books) Tradition does not address new media (e.g., software, multimedia)

Who Controls The Content ? Institutions want greater control over: -Format -Content Use of institutional name, logo, resources Use of content owned by third parties -Text -Music (mechanical and synchronization rights) - Software and patent issues -Images Copyright Likeness of individuals Privacy and publicity

Can Instructors Take the Material With Them If They Change Jobs? Factors: Sole author Joint author University policy Individually negotiated agreement Ownership v. license to use Nature of intended use

How Are Revenues Shared? Joint authorship under copyright law (without an agreement) Individually negotiated agreement ABOR policy: university owns, authors share in revenue net associated costs Author(s) receive minimum of 50% of first net $10,000 And minimum of 25% of net in excess of first net $10,000

Summary Compare ownership with licensed right to use Evaluate university resources used to develop and to: - Enhance a course with technology to use internally -Create a product that can be marketed separately Play an active role in Creative Commons and open source efforts Play an active role in cooperative/collaborative alternatives

Contact Information: Jeremy Rowe PRISM Executive Committee Director, Research, Strategic Planning and Policy Information Technology Arizona State University Tempe, Arizona