Faculty Development Program
Wilmington University
15 March 2008
James McCloskey, Library Director
Wilmington University
Overview
Copyright Symbol
Copyright – What is it?
The U.S. Copyright Act sets forth in Section 102(a) that
copyright protection vests immediately and
automatically upon the creation of “original works of
authorship” that are “fixed in any tangible medium of
expression”.
U.S. Copyright Act, 17 U.S.C. ξ 102(a) (2005)
Works without Copyright Protection
 Ideas and facts
 Works of the U.S. government (but state or local may)
 Various types of databases (such as a list of phone #’s)
 Works for which the copyright has expired
Copyright Basics
• Copyright provides the creators of original works
of authorship with a limited set of exclusive rights
to copy, distribute, and perform their works
(Section 106).
• Purpose: “to benefit the public by advancing the
progress of science and the useful arts”
• exemptions for users <fair use, making copies,
classroom use, etc.>
• public domain
Who owns the Copyright?
 The creator of a new work is the copyright owner.
 Two or more authors working together may be “joint”
copyright owners.
 The employer is the owner of a “work made for hire.”
 Copyright ownership may be transferred.
 Institutional policies help clarify but must conform to
legal requirements.
Copyright and the “Open” Web
 Copyright applies to all types of materials (text, music,
images, email, etc.) that might be posted on the
Internet
 Copyright protection begins “the moment [that] ideas
are expressed as keystrokes”
 The © symbol is not required of materials created after
1989; the absence of the symbol on a Web site does not
suggest lack of copyright protection
 The right to appropriate Web-based materials (images,
sound files, text) for use in your own course or Web
site (i.e., to create a “derivative work”) is retained by
the copyright holder
How Long Do Copyrights Last?
 Current law no longer requires formal notice or
registration for copyright protection.
 Most new works are protected for the life of the author
plus seventy years.
 Pre-1978 works required copyright notice to gain
protection.
 Works published between 1923-1978 could have
protection up to ninety-five years.
 Many foreign works have had their copyrights
restored.
Are they after me???
Common Copyright Exceptions
 Works in the public domain
 Works created “for hire”
 Works for which copyright has been transferred
 Fair use (Section 107)
 Classroom Copying Guidelines
Brevity: limits the amount copied per student
Spontaneity: Teacher initiated and “just-in-time”
Cumulative Effect: for use only in one course, the amount copied
from one source
Notice of Copyright
Prohibits copying for purpose of non-purchase
Section 107 – Fair Use
This provision is thought of as the
“umbrella” exception. It is crucial for
the daily success of teaching, learning,
and research.
Since Library Reserve Materials are an extension
of classroom teaching, its copying must conform
with fair use principles.
Rules of “Thump”
1.
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Limit reserve materials to
single articles or chapters; several charts, graphs or
illustrations; or other small parts of a work
a small part of the materials required for the course
copies of materials that a faculty member or the library
already possesses legally (i.e., by purchase, license)
Include
any copyright notice on the original
appropriate citations and attributions to the source
a Section 108(f)(1) notice.
Rules of Thump
3.
Limit access to students enrolled in the class and
administrative staff as needed. Terminate access at
the end of the class term.
4.
Obtain permission for materials that will be used
repeatedly by the same instructor for the same
class.
Section 108 – Library Copying
This statute is more detailed in its application.
Preservation Copying
Copying of Individual Works for Research & Study
Copying for Interlibrary Loan
Section 108
 Section 108(g) attempts to balance the interests of publishers and
libraries regarding interlibrary loan arrangements.
 Subsection 108(g)(2) of the bill deals, among other things, with limits
on interlibrary arrangements for photocopying. It prohibits systematic
photocopying of copyrighted materials but permits interlibrary
arrangements "that do not have, as their purpose or effect, that the
library or archives receiving such copies or phonorecords for
distribution does so in such aggregate quantities as to substitute for a
subscription to or purchase of such work."
Suggestion of 5
 Section 108(g) attempts to balance the interests of publishers and
libraries regarding interlibrary loan arrangements.
 The library may be either a requestor or responder in the interlibrary
loan context. As requestor, we are responsible for compliance with
copyright law and, where applicable, the CONTU Guidelines. As
responder, we are only responsible to ask whether the requestor has
so complied. Further, the CONTU Guidelines only apply to certain
materials (articles from periodicals published fewer than five (5)
years before the date of the request and small parts of other works)
and do not define aggregate quantities of copying that would
substitute for subscriptions to materials that are older than five (5)
years or whole works under Section 108(e).
Section 109(a) – First Sale
Once the copyright owner authorizes the release of
lawfully made copies of a work, those copies may be
passed along to others by sale, rental, loan, gift, or
other transfer.
Libraries function under this section; otherwise you
would not be permitted to check out a book, video, etc
Section 110 (1) – Displays and
performances in face-to-face
teaching.
Allows instructors to show movies, play music, recite
poetry, read plays, etc. all in the classroom setting.
Section 110(2) – Displays and
Performances in Distance
Learning
Fully revised in 2002 with passage of the TEACH Act.
Displays and Performances in distance education are
more constrained than allowed uses in classroom.
Section 117: Computer Software (amended
by Digital Millennium Copyright Act, 1998)
Section 120: Architectural works
Section 121: Special formats for disabled
Obtaining Permission
If you are unable to meet the requirements for the exceptions, you
can seek permission from the rights holder. You may secure
permission directly or through a licensing agent such as the
Copyright Clearance Center (CCC).
Decoding the Language of Fair Use:
Limitations on exclusive rights:
Fair Use
Fair Use (In a Nutshell)
Recognizes the public's interest in using copyrighted works
to create new works
Section 107 of the Copyright Act of 1976 and the “Four
Factors”:
The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the
copyrighted work.
The phrase “such as”
means fair use can apply
for many purposes in
many situations.
If it is “fair use,” it is
explicitly not an
infringement.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a
work in any particular case is a fair use the factors to be considered shall
include The statute directs only that we “consider” the
factors, but courts in fact weigh the strength of
arguments about each factor and evaluate whether
each factor tips in favor of or against fair use.
(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; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
Kenneth D. Crews, Copyright Law for Librarians and Educators (ALA Editions, 2006)
Licensed Information
 How you can use printed journals and books is
governed by copyright law
 Fair Use
 First Sale
 How you can use (most) electronic databases, journals,
and books is governed by a publisher’s contract with
the subscribing library
Contracting for Access
 Subscriptions involve signing a license
 The license sets the business terms and the terms
of use
 The license (or contract) overrides copyright law
 Libraries devote significant time to negotiating
terms (but we can’t always get what we want)
Who is Covered?
 The license identifies “authorized users” of
electronic resources.
 Persons officially registered as full or part-time students
in both degree and non-degree programs; faculty
(including emeritus faculty) and other members of the
teaching staff; administrators; and employed staff
 Authorized affiliates (affiliated or visiting scholars or
researchers, registered participants in outreach
programs and internships, etc.) (cont.)
Who is Covered?
 Other users sponsored by Wilmington U. for guest
accounts in order to complete academic or
administrative work
 Any of these at any location in the world, with
appropriate authentication
 All on-site (“walk-in”) users within the facilities of the
Wilmington U Libraries
Typical License Guidelines
 You may use the content only for non-commercial
educational, clinical, or research purposes
 You may not share portions of the content in
excess of fair use with individuals who are not
affiliated with Wilmington University
 You may not systematically print or save
substantial portions of an electronic title (e.g., you
cannot save an entire issue or volume of a journal
on your hard drive)
Beyond Section 107: New Legislation Governing
Use of Digital Content
 Digital Millennium Copyright Act (1998)
 Prohibits the “circumvention” of protective measures
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(e.g., data encryption)
Prohibits removal of information imbedded in digital
content by the copyright holder
Permits libraries to up to three “preservation copies” of a
copyrighted digital work
Permits digital preservation of material stored in an
obsolete medium
criminal penalties, no fair use
Beyond Section 107: New Legislation Governing
Use of Digital Content
 Distance Education & The TEACH Act (2002)
 Focuses on use of copyrighted materials in distance
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education
Expands section 110 on the range of materials that may
be “performed” in the electronic environment
Expands eligible “receiving locations”
Requires that access to digital information be limited to
currently enrolled students at the class level
Prefers “linking” to “storage”
Teach Act is not mandatory. Fair Use or Permissions are
options.
works that can be used…
 non-dramatic literary works (charts, journal articles,
maps, book chapters, some types of music, etc)
 limited portions of dramatic literary works (plays,
operas, feature films)
 any work in ways that would typically occur in the
physical, live classroom
Scanning and uploading of lengthy works to websites for
unlimited access is not considered permissable
works that cannot be used….
 those works produced for the sole purpose of
being used in distance education (i.e. an electronic
textbook or a multimedia tutorial)
 required reading – textbooks, course packs,
consumable workbooks
 unlawfully made copies
 If a digital version of the work is already available,
then an analog copy cannot be converted for
educational use
Instructor Oversight in Distance
Ed Classes
 The instructor ultimately supervises the uses of
copyrighted works
 The materials used serve educational pursuits rather
than entertainment or other purposes.
 Limit access to enrolled students
 If students would ordinarily buy and keep the
materials, that content should not be scanned and
uploaded as part of distance education.
“TEACH” institutional obligations
 copyright policy and copyright
educational materials
 accurate
 promote lawful activity
 notice that materials may be protected
by copyright
technological requirements
 limit access to registered students to the extent
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technologically feasible
reasonably prevent unauthorized copying and further
distribution
retain materials only as long as necessary
do not interfere with technological measures employed by
copyright holder
no known technology is 100% effective, and it is not
expected to be
do not overprotect if mechanisms threaten fundamental
rights – intellectual freedom, privacy
What Does the TEACH Act Say?
 TEACH says it is not copyright infringement for
teachers and students at an accredited, nonprofit
educational institution to transmit performances
and displays of copyrighted works as part of a
course if certain conditions are met. If these
conditions are not or cannot be met, use of the
material will have to qualify as a fair use or
permission from the copyright holder(s) must be
obtained.
fair use still an essential exception
 TEACH is cumbersome; consider fair use
 fair use – no prior permission, no fee
 Remember four factors – purpose, nature of the
publication, amount used, effect on the market
 use it or lose it
Fair Use Provides Best Option
 fair use analysis is a fact-intensive, case-by-case
approach
 fair use provides a framework for analyzing any
copyright use situation
 but some want to quantify now, and end the ambiguity
 Who then would determine what was fair use?
The Blackboard Environment
Performance
Display
The Public
Performance
“To perform a work is defined
as to recite, render, play,
dance, or act it, either
directly or by means of any
device or process.”
Display
“To place a copy of an image
on your Web page is to
display that image”
The Public
“publicly perform or display”
Section 110(2) Teach Act and
Distance Education
Section 110(2) allows the performance of entire “nondramatic”
musical works by “transmission” in the course of distance learning.”
By contrast, the law allows performances of “dramatic” musical
works only in “reasonable and limited portions.”
Bill Graham Archives
v.
Dorling Kindersley
 Images of seven Grateful Dead posters included in a
Doris Kindersley coffee table biography. BGA sued for
infringement.
 District Court found DK’s use was fair. The Second
Circuit affirmed on May 9, 2006
448 F.3d 605 (2d Cir. 2006)
The Second Circuit held that “DK’s inclusion of reduced
images of the posters in a new work was
transformative.”
The court found that “DK’s image display enhances the
reader’s understanding of the biographical text.”
The court noted that “DK reduced the size of the
reproduction, thereby “transforming” their “nature”.
“In cases involving transformative uses, the second
factor should be given “limited weight”.
On the fourth factor, “courts should look only at the
impact on potential revenues for ‘traditional,
reasonable, or likely to be developed markets.’ A
‘transformative market’ does not fall into one of these
three categories.”
Significance of Decisions in the
Educational Context
Jonathan Band, “Educational Fair Use Today”
 Cases with decisions on commercial settings where the
courts favored fair use strengthen the uses in nonprofit
educational context.
 The “transformative” nature of the use appears to
weigh more heavily than other factors. “Repurposing”
or “placing in a new context” may render the use
transformative.
 Amount and substantiality of the portion used has less
relevance, particularly when the use is transformative.
 The existence of a licensing market for a work does not
defeat fair use provided the use is transformative
 “If repurposing a work renders its use transformative,
then arguably an educational use of a work created for
a different market also is transformative.”
 “Recontextualized” means the copyrighted work is
integrated with other material (commentary, lecture
notes, student responses, etc)
 Must insure that the repurposing and
recontextualization is not misused!
New Models for Scholarly
Communication
 Self-archiving by scholarly authors of papers published
in conventional journals
 Portions of the copyright are retained by authors, not
transferred to publishers
 No-fee access through disciplinary and institutional
repositories
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ArXiv.org e-print archive <http://xxx.arxiv.cornell.edu/>
KU ScholarWorks <https://kuscholarworks.ku.edu/>
New Models for Scholarly
Communication
 Open Access Journals
 Authors retain copyright
 No fee for readers (or libraries)
 Revenues are generated from sources other than
subscriptions
 There are 1,288 journals currently available through the
Directory of Open Access Journals
<http://www.doaj.org/>
New Models for Scholarly
Communication
 Creative Commons Licensing
 An alternative to copyright transfer
 Defines explicitly which rights the author retains and
which rights is granted to users (e.g., use, reproduction,
creation of derivative works)
Educating the User
 Copyright and Intellectual Property
 Copyright Tutorial Series (North Carolina State
University)
<http://www.lib.ncsu.edu/scc/tutorial/index.html>
 Copyright Crash Course (University of Texas)
<http://www.lib.utsystem.edu/copyright/>
 Information Ethics Tutorial (University of North
Carolina)
<http://www.lib.unc.edu/instruct/infoethics/index.
html>
For More Information
 Copyright
 Copyright Management Center (IUPUI)
http://www.copyright.iupui.edu/index.htm
 Scholarly Communication Center – Tutorial Series (NCSU)
http://www.lib.ncsu.edu/scc/tutorial/index.html
 Copyright Information & Education
http://www.lib.umn.edu/copyright
 DMCA and TEACH Act
 DMCA (American Library Association)
http://www.ala.org/ala/washoff/WOissues/copyrightb/dmca
/
 Distance Education and the TEACH Act (ALA)
http://www.ala.org/ala/washoff/WOissues/copyrightb/distan
ceed/
For More Information
 Licensing
 Liblicense: Licensing Digital Information (Yale
University) http://www.library.yale.edu/~llicense/
 Okerson, Ann. 1996. “Buy or Lease? Two Models for
Scholarly Information at the End (or the Beginning) of
an Era,” Daedalus: Journal of the American Academy of
Arts and Sciences, 125 (4), 55-76 (also available at
http://www.library.yale.edu/~okerson/daedalus.html)
For More Information
 DMCA and TEACH Act
 DMCA (American Library Association)
http://www.ala.org/ala/washoff/WOissues/copyrig
htb/dmca/
 Distance Education and the TEACH Act (ALA)
http://www.ala.org/ala/washoff/WOissues/copyrig
htb/distanceed/
For More Information
 Open Access
 Budapest Open Access Initiative (BOAI)
http://www.soros.org/openaccess/
 Creative Commons http://creativecommons.org/
James McCloskey
James.M.McCloskey@wilmu.edu
302-356-6880
mccloskey2@gmail.com