1. Navigating Copyright Law in Foreign Language Courses
Naz Pantaloni, JD, MS, PhD
Head of the Copyright Program
Indiana University Libraries

2. Today’s Topics:
Copyright issues related to face-to-face and online language instruction
Copyright Basics
Exemptions for Classroom Teaching
The TEACH Act
Fair Use
Licensing & Creative Commons Licenses
IU Streaming Policies:
IU Libraries Digital Video/DVD Streaming Policy
IU Office of General Counsel’s “Virtual Screening Room” Policy

3. Copyright Basics
What copyright protects:
“Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression….”
(U.S. Copyright Act §102)

4. Types of protected works include:
literary works
musical works
dramatic works
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
architectural works (as of 1990)
sound recordings (as of 1972)
compilations and derivative works (17 U.S. Code §103)

5. idea/expression fact/expression

6. Copyright does not protect:
works not original or fixed in a tangible medium
ideas, facts, information, data
simple charts, tables or graphs; scientific or technical methods; mathematical principles, formulas or algorithms; recipes; directories
arduous effort
names, titles, slogans, short phrases, or common expressions
U.S. government works (§105)
works in the public domain

7. Exclusive Rights in Copyrighted Works
The owner of a copyright has the exclusive rights to do and to authorize the following:
to make copies or recordings
to prepare derivative works
to distribute copies or recordings
to perform the copyrighted work publicly
to display the copyrighted work publicly
to perform sound recordings publicly by means of digital audio transmission
(17 U.S. Code § 106)

8. Linking and Embedding Not Infringing

9. Copyright Infringement
Test for copyright infringement:
Access + Substantial Similarity
Additional requirements for copyright enforcement:
Standing (by the owner of a registered copyright)
Market Impact

10. Remedies for Copyright Infringement
Injunction against future infringement
Destruction of infringing copies
Statutory damages: generally $750 to $30,000 per copyrighted work, if work is registered; up to $150,000 per work for willful infringement (17 U.S. Code §504).

11. Avoiding Infringement
Basic legal rule: If something is in copyright, the use of the copyrighted work must be covered by a specific exception in copyright law, such as fair use or another statutory limitation, or be licensed.
As a practical matter, many uses – in both commercial and educational contexts – involve an assessment of the attendant risks.
Fair Use
Permission
Risk
Assessment

12. Photo by Biblioteca General Antonio Machado (Fondo Antiguo) - Creative Commons Attribution License
Created with Haiku Deck

13. Current U.S. Copyright Durations
What is in copyright?
Current U.S. Copyright Durations
Date and Nature of the Work
Copyright Term
Published in the U.S. before 1923.
Public Domain
Published in the U.S. between 1923 and 1977, inclusive, without a copyright notice.
Published in the U.S. between 1923 and 1963, inclusive, with a copyright notice but copyright was not renewed.
Published in the U.S. between 1923 and 1963, inclusive, with a copyright notice and copyright was timely renewed.
95 years from the date of first publication.
Published between 1964 and 1977, inclusive, with a copyright notice.
95 years from the date of publication (renewal term automatic).
Created, but not published or registered before 1978.
Single term of 120 years from creation for unpublished works made for hire, and unpublished or pseudonymous works.
Unpublished works.
Life of author + 70 years.
Created 1978 and later.
© notice required until March 1, 1989.
Life of author + 70 years. For works of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first.

14. Online Resources for Determining Copyright Durations:
American Library Association, The Copyright Genie Cornell University Copyright Information Center, Guide to Copyright Term and the Public Domain in the United States For copyright durations in other nations, see Wikipedia

15. Photo by Marco Gomes - Creative Commons Attribution License
Created with Haiku Deck

16. Photo by velkr0 - Creative Commons Attribution License https://www
Created with Haiku Deck

17. 110. Limitations on exclusive rights: Exemption of certain performances and displays
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made….

18. Photo by joe bustillos - Creative Commons Attribution-NonCommercial-ShareAlike License
Created with Haiku Deck

19. TEACH (Technology, Education and Copyright Harmonization) Act of 2002
Extends part of the face-to-face instructional display and performance exemption under §110(1) to distance education transmissions, but in a limited way.

20. To qualify under the TEACH act,
an instructor must use a lawful copy and meet the following conditions:
the copy must be "made by, at the direction of, or under the supervision of the instructor";
the use must be "directly related and of material assistance to the teaching content"; and
the transmission must be limited to students enrolled in the class.

21. If these conditions are met, the material copied is limited to:
"performance of nondramatic literary or musical work," such as reading a poem or short story, or listening to a piece of music;
"reasonable and limited portions of any other work," such as a film, video, or a musical play; and
"display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session," such as a picture or illustration.

22. Materials expressly excluded, include:
works primarily "produced or marketed primarily" for distance education;
works the instructor "knows or has reason to believe" were not lawfully reproduced;
works protected by anti-circumvention software;
and textbooks, course packs and other material typically purchased by students.

23. If a particular use does not qualify as an exception under the TEACH Act, it may still be protected by fair use.

24. Photo by rawpixel.com - Creative Commons No known copyright restrictions
Created with Haiku Deck

25. Fair Use
§ 107 of the Copyright Act of 1976 limits the exclusive rights in copyrighted works for criticism, comment, news reporting, teaching, scholarship, or research.
Determination of fair use based on four factors:
1.) the purpose and character of the use;
2.) the nature of the copyrighted work;
3.) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.) the effect on the potential market
Since 1994, courts also consider how transformative the use is under the first factor.

26. The Four Fair Use Factors*
Purpose
Nature
Amount
Effect
Commercial/Educational
Transformative
Purpose
Fact/Fiction
Published/Unpublished
Nature
Quantity
Quality
Amount
Potential market
Market substitution or harm
Effect
* All 4 factors are important

27. Some Truths About Fair Use
Not all educational use is fair use.
It is a generally recognized fair use to make appropriately tailored course-related content available to enrolled students via digital networks.
Not all non-commercial uses are fair use.
In copyright works freely available on the internet are not automatically a fair use.
It is possible to have a fair use even when a licensing mechanism is readily available.

28. Fair Uses
Texts
short quotes, sections, or excerpts, no more than a chapter or article
for criticism, commentary, or to support a thesis or argument
integral to the author’s discussion
for teaching, research, or scholarship
no more than is necessary for the intended purpose or use
a short quote used as an epigram
as raw material used transformatively in new creative works

29. Fair Uses
Images
for teaching, research, or scholarship, criticism, commentary, or to support a thesis or argument
integral to the author’s discussion
no more than is necessary for the intended purpose or use
reduced in size, from color to b&w (if color not needed), and at a lower resolution

30. Fair Uses Film Clips or Stills Caveats/Restrictions
analogous to a textual quote
for purposes of criticism, commentary, research, teaching, or scholarship
not merely decorative or illustrative, but directly relevant to the fair use
Caveats/Restrictions
Consider your source for the film still: Is it from a film still production company? Or a film studio itself?

31. Fair Use Checklists

32. Photo by Gene Bautista - Creative Commons No known copyright restrictions
Created with Haiku Deck

33. IU Libraries Media Services

34. Creative Commons Licenses

38. Finding Creative Commons Licensed Work

39. Photo by Pim Chu - Creative Commons No known copyright restrictions
Created with Haiku Deck

40. Photo by Andrei Z - Creative Commons Attribution-NonCommercial-ShareAlike License
Created with Haiku Deck

41. Section 1201(1)(A): “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Sections1201(1)(B) & (C) provide that the Librarian of Congress shall promulgate regulations establishing certain exemptions to the prohibition against circumvention for the benefit of “adversely affected” “persons”. Those regulations (37 CFR §201.40) allow for use of “short portions of motion pictures” protected by anti-circumvention software for such uses as documentary films, teaching in K-12 and college and university film- related courses, e-books offering film analysis, and MOOCs, along with other uses, either by means of circumventing the technological measures or by screen capture technology, depending on the use.

42. IU Libraries’ Copyright Policy for Streamed Delivery of Digital Video/DVD
Policy Media Services will digitize complete video recordings or portions of recordings if: 1. The title is licensed by Indiana University Bloomington Libraries. A list of licensed databases and titles is available at: libraries.indiana.edu/media OR 2. The teaching instructor obtains written permission from the copyright holder to digitize a film governed by the Digital Millennium Copyright Act. OR 3. The title is in VHS format and an equivalent DVD copy is not commercially available at a reasonable cost. AND 4. The item requested by a teaching faculty member or instructor is in support of an Indiana University Bloomington course. 5. The item is owned by the Wells Libraries Media Services department or by the teaching instructor, such as a class lecture or presentation. 6. The streamed media link is password protected. 7. The digitized, streamed media file resides on a server that is controlled and monitored by library staff. Media Services will not digitize entire titles borrowed from another institution via Interlibrary Loan, rented from a commercial video store, or personal copies. At its discretion, Media Services may make only short clips from such titles available in digital form.

43. IU Office of General Counsel “Virtual Screening Room” Policy
Faculty may bypass anti-circumvention software on DVD films for the purpose of streaming them to students outside of class time, according to the following parameters: 1.) The movie must be posted on a password protected site, such as Canvas. 2.) The movie cannot be made available throughout the semester, but must be streamed during three to four windows of time lasting two hours (or presumably for however long the film is). The instructor and students can arrange for windows of time during which the movie may be seen. After each window of time, the instructor should make the movie unavailable. 3.) Finally, similar to a physical a physical screening, each streaming should be preceded by some information related to the move that will be viewed. These conditions do not apply to films that appear in the film databases for which IU has purchased streaming licenses, such as Criterion Collections/Janus Films, Kanopy, Swank, Black Studios in Video, etc.

45. Getting Permission Who is the copyright owner?
Copyright can be transferred over time.
Generally the creator(s)/author(s).
Important exception: Works made for hire. What qualifies?
Work prepared by an employee within the scope of employment; or
A work specially ordered or commissioned and expressly agreed to in a written instrument
If a work is a work made for hire, the employer is considered the author and copyright owner (though the employee may still be mentioned).

46. Getting permission
Identifying the rights holder and their contact information.
Possible resources:
A copy of the work itself
For works registered with the U.S. Copyright Office, search copyright records at
Licensing agencies, such as the Copyright Clearance Center, Getty Images, Associated Press Images
Amazon.com
Reverse Google image search

47. Request Permission:
Either by , letter, or online form, identify precisely the uses you are requesting. Sample letter at IUL Media Services.
Sign and return the licensing agreement, and pay any required fees.
Follow the terms of the licensing agreement, including the use of any copyright notice provided by the rights holder.