1. Robert J. Congleton Sharon Yang Rider University Libraries Copyright Law in the Digital Age Vale Conference January 4, 2013

2. 1. Copyright protects the expression of ideas in any tangible form such as print, film, digital displays and Web-based works. 2. Copyright law does not protect ideas. Introduction

3. U.S. Copyright Code Significant sections/amendments for Libraries 1. Copyright Act of 1976 2. Digital Millennium Copyright Act 1998 3. Technology, Education, and Copyright Harmonization Act of 2002 4. Individuals with Disabilities Education Improvement Act of 2004 5. Preservation of Orphan Works Act of 2005

4. Copyright act of 1976 - Revised duration of copyright - For the first time the concept of “Fair Use” was incorporated into the copyright code - Codified exemptions for education, review, research, and news

5. General Length of Copyright For Works first published in the U.S. (does not include all items subject to copyright) 1923-1977 95 years for works with proper notice and renewal. 120 years from date of creation for unpublished works, pseudonymous works, and works made for hire 1978 to present (if created between 1977-1989 and published with notice) 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first For Sound Recordings Published in the United States Prior to Feb. 1972 Subject to state common law protection. Enters the public domain on 15 Feb. 2067 Feb. 1972 to 1978 95 years from publication. 2068 at the earliest 1978 to present (1978-1989 if published with notice) 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation. 2049 at the earliest

6. Fair Use Fair Use attempts to balance the rights of an author with the societal rights and needs to access creative works. Under Fair Use copyright is not infringed under certain circumstances. Copyright Act of 1976 : The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

7. Fair Use is determined by four factors: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 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; 4. the effect of the use upon the potential market for or value of the copyrighted work. Fair Use is determined on a case by case basis

8. 1. Purpose and character of the use Profit or Non-profit Review, criticism, research Educational Informational Transformative More Fair UseLess Fair Use Non-profitProfit Review, criticism, researchOther purposes EducationalNon-educational Informational TransformativeDerivative

9. 2. The nature of the copyrighted work News Factual Creative Graphs or Charts Unpublished More Fair UseLess Fair Use News Factual Creative Graphs or charts Unpublished

10. (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole Linked to the way the item is used and the organization using it. A nonprofit educational institution may copy an entire article for a class while a for-profit organization more likely would need permission. Transformative uses may allow using a greater portion of the work Guidelines are helpful, but may be too restrictive. They should not substitute for analysis.

11. 1976 Congressional Report Guidelines Guidelines are not part of law and may be too restrictive. The recent Georgia Tech decision did not follow any guidelines, but relied on Judge’s analysis. Copying of MaterialPermittedNot Permitted book chapter, periodical paper, short story 1 copy per student in classCreating anthologies of copied material book chapter, periodical paper, short story One work or two excerpts not to exceed 3 from the same work or periodical volume during one class term. Copying textbooks, exercise manuals or other works written specifically for teaching book chapter, periodical paper, short story Copying cannot substitute for the purchase of books, publishers’ reprints or periodicals Poems250 words or less Prose2500 words or 10% of work (whatever is less) Chart, graph, diagram, drawing1 per book or periodical Multiple copying9 instances for one course during 1 class term

12. (4) the effect of the use upon the potential market for or value of the copyrighted work. Does the use disrupt the copyright owner’s core market? Can it be substituted for the original? Could it supersede the original?

13. Allows libraries and archives to make reproductions for ILL, preservation, replacement, and patron research purposes. Within certain restrictions, a library is permitted to Make appropriately tailored course-related content available to enrolled students via digital networks Digitize at-risk items for preservation Reproduce materials in its collection in accessible form for the disabled and retain those reproductions when fully accessible copies are not readily available from commercial sources Reproduce, distribute, or digitize a work during the last 20 years of its copyright if the copyright holder is unknown

14. Conditions for Copying the reproduction has no direct or indirect commercial advantage purpose the collections of the library or archives are open to the public, or can be used by researchers not affiliated with the library or archives or with the institution the reproduction or distribution of the work includes a copyright notice The copying library owns a legal copy of the unpublished item If copying a published work, it has been determined, after a reasonable effort, that an unused replacement cannot be obtained at a fair price The digital copy of the item is not is not made available to the public in that format outside the premises of the library or archives

15. Not included in copying rights: Reproduction and distribution of a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news Systematic reproduction of single articles or portions of larger works instead of isolated and unrelated reproductions of a single copy of the same material

16. Adapting Copyright Law for the Digital Age A Combination of the following: 1. Fair use (U.S. Copyright Law 107 Limitations on exclusive rights: Fair use) 2. The Digital Millennium Copyright Act of 1998 3. TEACH Act-Technology, Education and Copyright Harmonization Act of 2002 U.S. Copyright Law 110 (2), Limitations on exclusive rights: Exemption of certain performances and displays 112 (f) Limitations on exclusive rights: Ephemeral recordings

17. The Digital Millennuim Copyright Act of 1998 1. It prohibits circumvention of anti-piracy measures (digital rights management systems). 2. It criminalizes sale, distribution and manufacturing any device for circumvention of anti-piracy measures 3. An education institution is not responsible for copyright violation unless the violation is in the required reading for online classes and the institution has received two warnings in the past three years.

18. TEACH Act and Distance Learning Qualifications for TEACH 2002 Accredited nonprofit institutions (k-12 included) Works are lawfully made or acquired Not include works marketed for online teaching List responsibilities of and requirements for institutions, OIT, and faculty

19. Responsibilities for Institutions 1. Develop copyright policies 2. Provide informational materials regarding copyright 3. Provide notices to students that course materials may be subject to copyright protection (may be done by faculty)

20. Responsibilities for OIT 1. Limit access to students officially enrolled in the online course only (Course Management Systems are ok) 2. Post copyrighted materials for the duration of the courses only 3. Retain digital copyrighted materials for future use (take down and put into storage) 4. Reasonably prevent students from retaining and distributing the copyrighted materials (no downloading) 5. Reasonably not interfere with technological protection measures in providing copyrighted contents/materials

21. Responsibilities for Faculty 1. Determine if the work is lawfully made or acquired 2. Determine the contents to be posted by applying fair use 3. Portions to be posted 4. Materials must be delivered as part of the class 5. Copyrighted contents are related to the class teaching/learning 6. Supervision by the instructor 7. Notices to students that the course materials may be subject to copyright protection (may be done by institutions)

22. Which of the following may not be lawfully made or acquired? 1. Bought a CD 2. Taped news from CNN 3. Taped a show from the Discovery Channel 4. An article from my subscription to a journal

23. What You Can Post for Online Classes Apply the following in conjunction with fair use 1. Performance of nondramatic literary works 2. Performances of nondramatic music works 3. Performance of any other works in reasonable and limited portions 4. Display a copyrighted work “in an amount comparable to that which is typically displayed in the course of a live classrooms session” (US Copyright Law)

24. What You Cannot Post for Online Classes 1. Copyrighted works that are not lawfully made or acquired 2. Copyrighted works produced or marketed primarily for performance or display as part of the online instruction

25. Converting copyrighted works to digital formats? You cannot digitalize a copyrighted work unless 1. Educators need to confirm that the exact material converted to digital form is within the scope of materials and portion limitations permitted under the new law 2. Educators need to check for digital versions of the work available from alternative sources and assess the implications of access restrictions if any. (ALA, 2011)

26. Fair Use and Digital Materials 1. Securing permission from the copyright owner 2. Linking to materials on other sites, rather than copying and posting 3. Using material in the public domain 4. Lawfully using protected materials after a "fair use" evaluation (Indiana University, 2012)

27. Which is an infringement of Copyright? 1. Copying 7 articles and distributing them to students in place of a textbook. 2. Photographing a building and displaying it to an architect class 3. Streaming a music CD to a class 4. Downloading an image of the Mona Lisa for discussion in an art class

28. Which one is not fair use? 1. Take photos of 10 paintings from an art book to show the techniques of the painter 2. Scan an article from a journal to post in electronic reserves 3. Photocopying one chapter from a book and distributing it to students in one class for discussion and criticism 4. Created a blackboard link to a video so that a class can view it

29. Which one is not covered by fair use? 1. Create a link to an image in Blackboard for my class 2. Download an image to put on my handout for decoration 3. Download an image to illustrate my argument in my handout 4. Scanned a photo into Blackboard for an photography class

30. Q&A Robert J. Congleton, rcongleton@rider.edu Sharon Yang, yangs@rider.edu Rider University

31. References * ALA : Distance Education and the TEACH ACT (2011) http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/Cont entManagement/ContentDisplay.cfm&ContentID=25939 http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/Cont entManagement/ContentDisplay.cfm&ContentID=25939 * ARL Code of Best Practices in Fair Use for Academic and Research Libraries http://www.arl.org/bm~doc/code-of-best-practices-fair-use.pdf http://www.arl.org/bm~doc/code-of-best-practices-fair-use.pdf * Copyright Crash Course: Georgia State Electronic Course Materials Case Executive Summary http://copyright.lib.utexas.edu/GSUcommentary.html http://copyright.lib.utexas.edu/GSUcommentary.html * Copyright Law of the United States http://www.copyright.gov/title17/circ92.pdfhttp://www.copyright.gov/title17/circ92.pdf * Checklist For Conducting A Fair Use Analysis Before Using Copyrighted Materials. Cornell University http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf * Fair Use (2009) http://www.copyright.gov/fls/fl102.htmlhttp://www.copyright.gov/fls/fl102.html * Indiana University : Post Copyrighted Materials Online (2012) http://kb.iu.edu/data/arit.htmlhttp://kb.iu.edu/data/arit.html * House Report no. 94–1476 http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000107----000- notes.htmlhttp://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000107----000- notes.html * Limitations on Copyright Owners for Libraries and Archives: Points of Contention and Agreement in an Examination of Section 108. By Kathleen B. Saylor http://www.copyrightalliance.org/files/examination_of_section_108_--_saylor.pdf http://www.copyrightalliance.org/files/examination_of_section_108_--_saylor.pdf * Rider University Copyright Information http://www.rider.edu/offices-services/teaching-and-learning- center/intellectual-property-teaching-and-learningInformation http://www.rider.edu/offices-services/teaching-and-learning- center/intellectual-property-teaching-and-learning