COPYRIGHT & RELATED
SUBJECTS
DISCLAIMER
• I’m not a copyright attorney, so sue me.
• Please regard this to be information for
consideration as guidelines; not tablets
containing the Ten Commandments.
• My objective is to make you more at ease
when using copyrighted material.
WHY SHOULD I CARE?
• Well, for one thing, copyright compliance is
the law!
• For another, compliance is an individual
responsibility (yours); and the institution will
not usually protect nor defend your violations!
• Lastly, monetary judgments are usually levied
against offenders at up to $150,000 per
individual incident!
COPYRIGHT FUNDAMENTALS FOR
FACULTY
• The Constitutional Provision Respecting
Copyright
“The Congress shall have Power ...To promote
the Progress of Science and useful Arts, by
securing for limited Times to Authors and
Inventors the exclusive Right to their
respective Writings and Discoveries.”
United States Constitution, Article I, Section 8
MORE ON THE LEGAL BASIS
• The United States copyright law is contained
in chapters 1 through 8 and 10 through 12 of
title 17 of the United States Code. The
Copyright Act of 1976, which provides the
basic framework for the current copyright law,
was enacted on October 19, 1976, as Pub. L.
No. 94-553, 90 Stat. 2541.
FROM USCFR: §102
SUBJECT MATTER OF COPYRIGHT IN
GENERAL
• (a) Copyright protection subsists, in
accordance with this title, in original works of
authorship fixed in any tangible medium of
expression, now known or later developed,
from which they can be perceived,
reproduced, or otherwise communicated,
either directly or with the aid of a machine or
device.
USCFR CONTINUED
• Works of authorship include the following
categories:(1) literary works; (2) musical
works, including any accompanying words; (3)
dramatic works, including any accompanying
music; (4) pantomimes and choreographic
works; (5) pictorial, graphic, and sculptural
works; (6) motion pictures and other
audiovisual works; (7) sound recordings; and
(8) architectural works.
MORE FROM USCFR
• (b) In no case does copyright protection for an
original work of authorship extend to any
idea, procedure, process, system, method of
operation, concept, principle, or discovery,
regardless of the form in which it is described,
explained, illustrated, or embodied in such
work.
USCFR: §105 GOVERNMENT
WORKS
• Copyright protection under this title is not
available for any work of the United States
Government, but the United States
Government is not precluded from receiving
and holding copyrights transferred to it by
assignment, bequest, or otherwise.
USCFR: §106 EXCLUSIVE RIGHTS
• Subject to sections 107 through 122, the owner
of copyright under this title has the exclusive
rights to do and to authorize any of the following:
• (1) to reproduce the copyrighted work in copies
or phonorecords;
• (2) to prepare derivative works based upon the
copyrighted work;
• (3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or
lending;
MORE ON CFR § 106
• (4) in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and
motion pictures and other audiovisual works,
to perform the copyrighted work publicly;
• (5) in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual images of a motion picture
or other audiovisual work, to display the
copyrighted work publicly;
AND MORE
• and (6) in the case of sound recordings, to
perform the copyrighted work publicly by
means of a digital audio transmission.
USCFR: LIMITATIONS ON EXCLUSIVE
RIGHTS : §107 FAIR USE
• 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.
FAIR USE CONTINUED
• In determining whether the use made of a
work in any particular case is a fair use the
factors to be considered shall include—
• (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;
AND MORE ON FAIR USE
• (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.
TEACH ACT
Technology, Education and Copyright Harmonization Act of 2002
• Essentially permits educational institutional
instructors to provide students at distance the
same access to copyrighted handouts that
traditional on-campus/in class students enjoy.
• Institution must have copyright policy.
• Institution must be non-profit and accredited.
• Materials must be provided by the institution
which accurately describe, and promote
compliance with, the laws of the United States
relating to copyright.
TEACH ACT CONTINUED
• Institution must publish statements to
students that state that materials used in
connection with the course may be subject to
copyright protection.
• Materials transmitted must be solely for
students officially enrolled in the course for
which the transmission is made.
CONTU/CONFU
WHAT ARE THEY?
• CONTU: Commission on New Technology Uses
of Copyrighted Works (1978).
• CONTU and its Guidelines are generally aimed
at library copying and computer usage.
Agreement between publishing industry
copyright owners and the library community
was reached and articulated in the Guidelines.
MORE ON CONTU
Essentially libraries were permitted to make
five copies from a single journal title or a
chapter of a book title without seeking permission. Items copied were drawn from the
most recent five years of a journal’s run or a
book’s publication. Items older than five
years were not addressed, but are generally
con-strued to lie outside of consideration.
After the limit of five is reached, permissions
have to be obtained from copyright holder.
CONFU
• CONFU: Conference on Fair Use (1997).
• Convened to attempt to define Fair Use.
• No agreements were reached between end
users and copyright holders (almost 100
organizations on both sides of the issue of fair
use).
• Meeting was largely a failure.
SO, CAN I USE FAIR USE FOR
DISTANCE EDUCATION CLASSES?
• Absolutely, but exercise reasonable care.
• Journal articles: One per issue. If over five
from a single title in the last five years, seek
permissions.
• Book chapters: one per title. If more, seek
permissions.
COPYRIGHT STATEMENT
• Anything mounted for use must have
copyright statement: “Material displayed
herein may be copyrighted material. The
copyright law of the U.S. (Title 17, United
States Code) governs the making of
photocopies or the other reproductions of a
copyrighted material.”
• This is also a good statement to use on the
course page.
FAIR USE CONTINUED
• Course pages must be protected by ID and
password.
• Copyrighted content must be removed at end
of course and not renewed on consecutive
terms.
PUBLIC DOMAIN: BEYOND FAIR
USE
• Public domain material lies outside of Fair Use
and may be freely used.
• If material is in the public domain, it can be
used without regard to copyright limitations.
• But how do I determine if something is in
public domain?
LOLLY GASAWAY
WHEN U.S. WORKS PASS INTO THE PUBLIC
DOMAIN
By Lolly Gasaway, University of North
Carolina
• Definition: A public domain work is a creative
work that is not protected by copyright and
which may be freely used by everyone.
GASAWAY CONTINUED
The reasons that the work is not protected
include:
(1) the term of copyright for the work has
expired;
(2) the author failed to satisfy statutory
formalities to perfect the copyright or
(3) the work is a work of the U.S. Government.
GASAWAY CHART
http://www.unc.edu/~unclng/public-d.htm
• Date of Work: Created 1/1/78 or after.
Protected from: When work is fixed in tangible
medium of expression.
Term: Life +70 years,1 (or if work of corporate
authorship, the shorter of 95 years from
publication, or 120 years from creation.2
CHART CONTINUED
• Date of Work: Published before 1923.
Protected from: In public domain.
Term: None.
CHART CONTINUED
• Date of Work: Published 1923-63.
Protected from: When published with notice.3
Term: 28 years + could be renewed for 47
years, now extended by 20 years for a total
renewal of 67 years. If not so renewed, now in
public domain.
CHART CONTINUED
• Date of Work: Published 1964-77
Protected from: When published with notice.
Term: 28 years for first term; now automatic
extension of 67 years for second term.
CHART CONTINUED
• Date of Work: Created before 1-1-78 but not
published.
Protected from: 1-1-78, the effective date of
the 1976 Act which eliminated common law
copyright.
Term: Life + 70 years or 12-31-2002,
whichever is greater.
CHART CONTINUED
• Date of Work: Created before 1-1-78 but
published between then and 12-31-2002.
Protected from: 1-1-78, the effective date of
the 1976 Act which eliminated common law
copyright.
Term: Life + 70 years or 12-31-2047 whichever
is greater.
GASAWAY FOOTNOTES
• 1. Term of joint works is measured by life of
the longest-lived author. 2. Works for hire,
anonymous and pseudonymous works also
have this term. 17 U.S.C. § 302(c). 3. Under
the 1909 Act, works published without notice
went into the public domain upon publication.
GASAWAY FOOTNOTES
CONTINUED
Works published without notice between 1-178 and 3-1-89, effective date of the Berne
Convention Implementation Act, retained
copyright only if efforts to correct the
accidental omission of notice was made within
five years, such as by placing notice on unsold
copies. 17 U.S.C. § 405. (Notes courtesy of
Professor Tom Field, Franklin Pierce Law
Center and Lolly Gasaway)
PERMISSIONS????
• If you have determined that you need to use
an item that will not be permitted for use
under the Fair Use Doctrine, you must seek
permission for such usage.
• HSC OP 57.02 Attachment A has a sample
permissions letter that you may use.
• HSC OP 57.02 lists the agencies and addresses
to contact for such permissions.
PERMISSIONS CONTINUED
• When seeking permissions remember that it is
best to plan ahead, as it may take some time
to gain permissions.
• Some permissions are given for free, while
others may carry significant costs per item.
See next screen to see significant cost
example.
PERMISSI0NS EXAMPLE
• As an example, to seek permissions from CCC
for a 25-page article from a 2010 issue of Acta
Ophthalmologica Scandinavica for use by 50
distance students in a course management
system, the charge would be $253.50 for the
semester.
• Ready to consider using Fair Use again?
RECAP:GUIDELINES FOR DISTANCE
EDUCATION USAGE
• Limit of 5 journal articles per title (5 from the
last 5 years).
• Sparing use of images and/or book chapters.
• Limit to only students enrolled in class
(password and user ID protect).
• Take offline at completion of course. Do not
use consecutively.
• Where possible give bibliographic citation
instead of full text.
GUIDELINES CONTINUED
• If you must exceed limits, obtain permissions.
• Always include copyright statement on copies
used: “Material displayed herein may be
copyrighted material. The copyright law of
the U.S. (Title 17, United States Code) governs
the making of photocopies or the other
reproductions of a copyrighted material.
(continued)
GUIDELINES CONTINUED
• Under certain conditions specified in the law,
it is legally possible to furnish a photocopy or
other reproductions. One of the specified
conditions is that the photocopy or
reproduction is not to be "used for any
purpose other than private study, scholarship,
or research." If a user makes a request for, or
later uses, a photocopy or reproduction for
the purposes in excess of ‘fair use’ that user
may be liable for copyright infringement.”
MY PERSONAL COPYRIGHT ANGELS
• Georgia Harper, University of Texas: creator of
A Crash Course in Copyright,
http://copyright.lib.utexas.edu/
I highly recommend her crash course for a full
understanding of all aspects of copyright.
ANGELS CONTINUED
• Lolly Gasaway, University of North Carolina,
http://www.unc.edu/~unclng/index.htm
Her courses on copyright law are systematic
and thoroughly comprehensive in nature. Her
course on copyright for librarians is a classic:
highly recommended.
CLOSER TO HOME
• Please remember to read the TTUHSC OP
entitled Guidelines for the Educational Use of
Copyrighted Works, HSC OP 57.02, and its
accompanying Attachment A (Sample Letter
for Permissions).
http://www.ttuhsc.edu/hsc/op/op57/op5702.
pdf
This OP is intended to provide you with overall
guidelines for copyright compliance.
CLOSING
• Please remember to consult with the Office of
General Counsel/TTUHSC Affairs should you
have any questions concerning copyright law.
(806) 743-2986 Fax# (806) 743-1857
• Thank you for your courteous attention.
Reviewed February 2014