Jeremy Rowe Copyright Planning Issues

Technology Empowers Making users: Creators 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.

French lawmakers approved an online copyright bill that would require Apple to break open the exclusive format behind its market-leading iTunes music store and iPod players. Lawsuit maintains that both Koch and Fast Life "are liable for at least eighty-one separate counts of copyright infringement as a result of their unlawful and unauthorized marketing, selling and distributing of at least five CDs and one DVD containing copyrighted musical compositions and sound recordings of The Game." Those recordings include Untold Story, Untold Story Vol. 2 and G.A.M.E.

A federal judge on Monday ordered a stem-cell research opponent’s Web site shut down after ruling that the site illegally copied a Web site that supports such research. A jury decided the title track to late rapper Notorious B.I.G.'s album Ready To Die violates copyright law because it includes portions of a song by the Ohio Players without permission or paying royalties. The jury awarded $3.5 million in punitive damages and at least $733,000 in direct damages plus interest. Further, Judge Todd Campbell ruled the 1994 album and individual song of the same name may not be played on the radio, sold in retail stores or downloaded. Campbell said such action was needed to bolster the integrity of the copyright law.

The claimants, authors Michael Baigent and Richard Leigh, allege that Dan Brown’s famed novel breached copyright in adapting material from their book The Holy Blood and the Holy Grail. Actor Marc John Jefferies who recently appeared in the Fifty Cent film, "Get Rich or Die Tryin," has been slapped with a $5.9 million lawsuit for copyright violations related to the popular children's spy book series "Secret Agent MJJ." MPAA filed seven lawsuits against Torrentspy and other search companies that help visitors find content or instruct them how to download it.

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.

Trademark A word, name, symbol, or device used by a manufacturer or merchant to identify and distinguish their goods from others. (active only while used and enforced)

Copyright Original Purposes: Protect intellectual property Preserve market for author Provide access for educational purposes Now combines 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 (1600) Authors vs publishers(1706) Translations of books (1853 Uncle Tom’s Cabin) Mark Twain author rights advocacy (1875) Photographers vs printers (1885 Sarony) Film rights vs books(1903 Ben Hur) Sheet music publishers vs piano rolls (1907) Musicians performance rights (1913 Sousa) Reselling News (1918 Assoc. Press/ International News Service) Film/television vs parodies( 1938/46 Night at Casablanca)

Background Publishers vs photocopiers (1968) Rights of Publicity (1970 “Here’s Johnny”) Broadcast editing/censorship (1976 Monty Python) Film Distributors vs VCRs (1979 Universal v Sony) Classrooms vs video courses (1984 Kastenmeier) Music Parody (1991 Acuff Rose v 2 Live Crew Pretty Woman) Music Rights holders vs samplers Business Process Patents Publishers and software producers vs digital copies

Background Classrooms vs Internet courses Satellite and Cable TV vs “card mechanics” “Deep” Links (1997 Shetland News/Times) Teach Act (2002) 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 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. English/Canadian concept of “Fair Dealing” single copies for research and private study

“ Fair Use” Issues 1. Similarity 2. Substantiality 3. Source (direct v illegal copy) 4. Animus Fundi (intent) 5. Level of competition 6. Impact on market

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

Reproduction of material from the Libraries and Archives - Material with restrictions -Library and Archives -Third-party material -Public domain material -Pre-authorized licenses -Linking to websites -Crediting

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

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)

March 25 th Orphaned Works Comments An orphan work is a work presumed to have copyright protection, but whose owner cannot be located even after a good faith search. Given the high costs of litigation and the inability of most creators, scholars and small publishers to bear those costs, non-renewed works or those with uncertain ownership the result - orphan works often are not used even where there is no one who would object to the use.

A committee appointed by the Library of Congress will hold two public roundtables in March 2006—in Los Angeles and in Washington, D.C.— to gather insights and opinions on how to revise copyright exceptions for libraries and archives. The group is studying how Section 108 of the Copyright Act (titled “Limitations on exclusive rights: Reproduction by libraries and archives”) may need to be amended to address the relevant issues and concerns of libraries and archives, as well as creators and other copyright holders. Cultural heritage institutions, in carrying forward their missions, have begun to acquire and incorporate large quantities of “born digital” works (those created in digital form) into their holdings to ensure the continuing availability of those works to future generations.

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, Strategic Partnerships and Special Initiatives School of Computing and Informatics Arizona State University Tempe, Arizona