2. Copyright Issues in the HBCU Project Peter B. Hirtle Intellectual Property Officer pbh6@cornell.edu

3. Session Goal Workshop participants will have a deeper understanding of possible copyright issues associated with the project.

4. Session Objectives Overview of © requirements for the project –Protect your institution and the project Introduction to some basic principles of © Review of © issues in common source material

5. Learner Outcomes Be able to identify & discuss potential © problems in your institution’s selected materials. Determine © authorship of material and the implications for its use. Understand when items may have entered the public domain. Be better able to determine the level of risk associated with the use of some material.

6. HBCU Project © Assumptions (from the Terms of Use) Partners “agree that they have the right to duplicate content contained here.” Partners are responsible for obtaining all necessary permissions to display materials. Web site users are responsible for securing permissions for their uses –From © owners –From owning institutions

7. Our Two Goals 1.You do not infringe © when digitizing and making material available. 2.We make it easy for users to use material (and get any required permissions to do so)

8. The Digitization Problem Digitization is copying Copying, distribution, and public display are exclusive right of the copyright owner How can you digitize?

9. How to digitize a work © Owner Fair Use Get Permission If no Sec. 108 If no Courtesy: Mary Minow Public Domain If no

10. Who is the copyright owner? Creator of the original work Work-for-hire –Employers own work of employees –“a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas…” © Owner

11. Independent contractors own their work Prior to 1978, usually the opposite Assignment and transfer of copyright –In writing –By inheritance © Owner

12. Reality Check #1 Who is the © author?

13. © Authorship A. Nelson Mandela B. Robyn Merrick & Amanda P. Larkins C. Southern University D. There is no author

14. Reality Check #2 Who is the © author? Stick in picture of manuscript letter from a university official

15. © Authorship A.B. C.D. There is no author

16. Reality Check #3 Who is the © author? (sample page)

17. © Authorship A. Tennessee State University (TSU) B. The Students of TSU C. The students and the photographers D. There is no author

18. By fixing an original work of authorship –Automatic Protection s ince 1 March 1989 –No requirement for notice or registration Registration is still a good idea if you want to sue… © How does one secure copyright protection?

19. Copyright before 1989 A series of formalities Differs for published and unpublished: –Copyright notice –Renewal after 28 years –Manufacturing requirements If formalities weren’t followed, works entered the public domain

20. Copyright Duration Works created during or after 1978 –Life of the author plus 70 years –Work for hire: 95 years from publication Works created but not published before 1978 –Life of the author plus 70 years Works published before 1978 –Generally 95 years maximum –Shorter if the work was not registered/renewed –Use the copyright duration chart Public Domain

21. Reality Check #4: What is © status of 1949 Tennessean? (reverse of title page: no © notice)

22. Copyright Status A. In the public domain now B. Public domain in 2045 (1949 + 95 years) C. Public domain in 2045 (1949 + 95 years) D. 2070 (1949 + 120 years for an unpublished corporate work)

23. 108(h): Digitization for Web Published works in last 20 years of term –i.e., 1923-1931 Not “subject to normal commercial exploitation” Cannot “be obtained at a reasonable price” Applies to text, musical works, graphics, audiovisual works, and non-music sound recordings Sec. 108

24. Section 107 (Fair Use) Advantage: –Library exemption Statutory damages waived Disadvantage –Uncertainty –Much digitization is probably not fair Fair Use

25. Fair Use-Summary Likely YesLikely No P urpose Nonprofit Transformative Commercial Duplication N ature FactualCreative A mount Small amount (relative to original) Complete work Heart of the work M arket Doesn’t hurt market for original Hurts market or potential market Courtesy of Mary Minow

26. Fair Use: Kelly v. Arriba-soft Case: Photographer sued image search engine and lost Court: Purpose - commercial but transformative Nature – creative Amount – thumbnails only Market – little effect Kelly v. Arriba-Soft, 280 F3d 934 (9th Cir. 2002)

27. Document Fair Use Analysis Indiana Fair Use Checklist http://www.copyright.iupui.edu/checklist.htm Fair Use

28. Option 4: Ask permission Locating copyright owners can be time consuming and expensive How thorough do you need to be? –No accepted guidelines –“Orphan works” initiative: reasonable investigation Get Permission

29. Use a Disclaimer “The Kheel Center would like to learn more about these images and hear from any copyright owners who are not properly identified on this Web site so that we may make the necessary corrections. If you have any additional information about the images or would like to suggest a correction, please contact Barb Morley at kheel_center@cornell.edu. Please include the photo identification number.”kheel_center@cornell.edu

30. Summary: Ways to Minimize Risk Digitize works you own Digitize public domain materials Make a “good-faith” effort to establish fair use Use a disclaimer Document your investigations Limit copies to research and educational use –Don’t make a profit on them Work with officials in your institution to establish a mutually acceptable level of risk