Copyright Law for
Campus
Jack Bernard
University of Michigan—Flint
Friday, November 13, 2015
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What do these have in common?
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What do these have in common?
The 9/11 Commission
Report
Your (draft) article
3
What do these have in common?
Your web
page
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What do these have in common?
What I am saying
The notes you are taking
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What do these have in common?
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What do these have in common?
The 9/11 Commission Report
Your (draft) article
Your
web
page
What I am saying
The notes you are taking
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Finish This Statement:
The purpose of U.S. © law is to:
•
•
•
•
A) Reward authors for the creative efforts
B) Provide an economic incentive to write & publish
C) Advance public learning
D) Provide legal remedies for infringement
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Finish This Statement:
The purpose of U.S. © law is to:
•
•
•
•
A) Reward authors for the creative efforts
B) Provide an economic incentive to write & publish
C) Advance public learning (about 3% guess this)
D) Provide legal remedies for infringement
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The purpose of copyright is etched
right into the Constitution.
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;
---U.S. Const. Art.1 §8 cl. 8
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What is the purpose of copyright?
“…copyright law ultimately serves the purpose of
enriching the general public through access to creative
works…” Fogerty v. Fantasy, Inc. 510 U.S. 517, 527
(1994)
“The monopoly privileges that Congress may authorize
are neither unlimited nor primarily designed to
provide a special private benefit. Rather, the limited
grant is a means by which an important public
purpose may be achieved. It is intended to motivate
the creative activity of authors and inventors by the
provision of a special reward, and to allow the public
access to the products of their genius after the limited
period of exclusive control has expired.” Sony. v.
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Universal City Studios, 464 U.S. 417 (1984)
What is the purpose of copyright?
“…it should not be forgotten that the Framers
intended copyright itself to be the engine of free
expression. By establishing a marketable right
to the use of one's expression, copyright
supplies the economic incentive to create and
disseminate ideas.” Harper & Row, Publishers,
Inc. v. Nation Enterprises, 471 U.S. 539, 558
(1985)
“…monopoly created by copyright thus rewards
the individual author in order to benefit the
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public” id. at 546
Means---------------->Ends
Reward Authors
Provide Incentive
Promote Progress
Provide Legal Remedies
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Copyright law codifies
a constant balancing act
rights, needs, and desires among:
– authors and copyright holders
– publishers and distributors
– users and the public
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Copyright Requirements
• Original
• Work of authorship
• Fixed in a tangible medium of expression
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Copyright Requirements
• Original
– not copied + a minimal degree of creativity
• Work of authorship
• Fixed in a tangible medium of expression
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Copyright Requirements
• Original
– not copied + a minimal degree of creativity
• Work of authorship
– including not only literary, but also musical,
dramatic, choreographic, pictorial, graphic,
sculptural, audiovisual, and architectural works
• Fixed in a tangible medium of expression
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Copyright Requirements
• Original
– not copied + a minimal degree of creativity
• Work of authorship
– including not only literary, but also musical,
dramatic, choreographic, pictorial, graphic,
sculptural, audiovisual, and architectural works
• Fixed in a tangible medium of expression
– embodiment is sufficiently permanent to permit it
to be perceived for a period of more than
transitory duration
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© happens!
• Notice and registration are not required to
obtain copyright
• Neither is publication
• Copyright attaches automatically upon
creation
• But notice and registration do provide certain
advantages
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Which means that . . .
• Almost everything at the heart of academic enterprises is
copyrighted
– This includes not only your books, your essays, your
musical scores, and your articles, but also your drafts
and charts, your web pages, your letters and e-mail to
your friends, and even the notes you might be taking
(and doodles you are drawing) right now
– This also includes other people’s books and articles,
drafts, charts, . . . etc. that you want to incorporate into
your own works
– This even includes the works of faculty, staff, and20
students.
Who is the Copyright Holder?
• Default Rule: The creator is the copyright holder
– If two or more persons jointly create a work,
they are joint copyright holders with joint
rights
• Exception: “work for hire”
• Independent Contractors
• Academic practice: What we do for faculty
• Who’s the © holder? Start with the author. 21
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The Back Cover
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It is important to distinguish among . . .
• Ideas, facts, inspirations, etc. that may
underlie a copyrightable work.
• A work of authorship
• Copies of a work, including the
original
• The underlying copyright in a work
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§106 Rights of © Holder
to do and authorize …
• Reproduction of the work in whole or in part
• Preparation of derivative works
– e.g., translations, musical arrangements,
dramatizations, sound recordings, & second
editions
• Distribution of copies of the work to the public by
sale, gift, rental, loan, or other transfer
• Public performance of the work
• Public display of the work
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Permissions and Transfers
• The exclusive rights are both independent of
each other and individually divisible
• License: permission to exercise one or more of
the exclusive rights in specified ways
• Transfer: assignment of control over one or
more of the exclusive rights
• Transfers and exclusive licenses must be in
writing and signed by the rights holder
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How Long Does Copyright Last?
• Copyright protection extends to all original
works of authorship, including
unpublished works, from the moment they
are fixed in a tangible medium of
expression for
– the life of the author plus 70 years
– or 95 years for “works for hire”
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The Public Domain
• Once the term of protection for a copyrighted work
has passed, it rises into the public domain.
• When a work rises into the public domain, a ©
holder’s 106 rights no longer attach to that work
• Once a work rises into the public domain,
there it must forever remain unless congress
passes legislation saying otherwise.
• Works that are not copyrightable are in the public
domain from the start.
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Copyright v. Plagiarism
• Copyright protects only the expression, not the
underlying facts or ideas
– Copying someone else’s facts or ideas may
be plagiarism (or patent infringement or ...),
but it’s not copyright infringement
• Crediting the source is not a defense to
copyright infringement
– Not crediting the source is plagiarism
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Copyright Infringement
• Infringing on someone else's copyright
can have serious consequences:
– Up to $150,000 in civil damages,
plus attorney fees, for each
infringement
– And, potentially, criminal fines and
imprisonment
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Copyright in Cyberspace:
The Dilemma
• The Internet is really just a big photocopier:
– You can’t view a web page without
making copies of it
– You can’t read a Usenet message without
It
depends!
making copies of it
– You can’t forward an e-mail message
without making and distributing copies of
it
• So is it all copyright infringement?
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It is not infringement if . . .
• You are the copyright holder
• You have express permission
• The work you are using is
uncopyrightable or otherwise in the
public domain
• There is a specific statutory limitation
• e.g. What you are doing is “fair use”
Detractors have a lot to say.
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§106 Exclusive Rights
in Copyrighted Works
Notwithstanding sections 107
through 122, the owner of
copyright under this title has
the exclusive right to make and
to authorize all uses including
the following:
§106 Exclusive Rights of © Holders
• Reproduction of the work in whole or in part;
• Preparation of derivative works;
• Distribution of copies of the work to the
public by sale, lease, rental, loan; or other
transfer of ownership;
• Public performance of the work;
• Public display of the work.
§106 Exclusive Rights
in Copyrighted Works
Notwithstanding sections 107
through 122, the owner of
copyright under this title has
the exclusive right to make and
to authorize all uses including
the following:
§106 Exclusive Rights
in Copyrighted Works
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:
Compare
Notwithstanding sections 107 through
122, the owner of copyright under this
title has the exclusive right to make
and to authorize all uses including the
following: (false)
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: (true)
• Copyright protection "has never accorded
the copyright owner complete control
over all possible uses of his work. ... All
reproductions of the work, however, are
not within the exclusive domain of the
copyright owner; some are in the public
domain. Any individual may reproduce a
copyrighted work for a "fair use"; the
copyright owner does not possess the
exclusive right to such a use." Sony. v.
Universal City Studios, 464 U.S. 417
(1984)
There is a lot of misinformation
being consumed!!
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Limitations
• §106—the copyright holder’s rights that are
statutorily limited by other rights
• §107—fair use, a broad, more general right that
limits the copyright holder’s rights
• §§108-122—specific rights that limit the
copyright holder’s rights:
– limitations that are fair uses, but are easier to apply
– limitations that are not fair uses, but that Congress
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authorizes
You Cannot Read §106 alone…
• §106.3 Distribution of copies of the
work to the public by sale, lease,
rental, loan; or other transfer of
ownership;
• §109 -- “First Sale”
Possible Uses of a ed Work…
©
©
©
©
©
Fair Use -- §107
“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 four factors
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Fair Use Factors
• Purpose and character of the use
– personal/educational/transformative v. commercial use
• Nature of the work being used
– factual v. creative
• Amount and substantiality of the portion
used in relation to the whole
– small. V. large, both quantitatively and qualitatively
• Effect on the market for the original
– not of your individual use, but of the type of use
§110(1)
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
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knew or had reason to believe was not lawfully made;
§110(2)
Notwithstanding the provisions of section 106, the
following are not infringements of copyright:
(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital
networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the
transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the
performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to
that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if—
(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a
regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—
(i) students officially enrolled in the course for which the transmission is made; or
(ii) officers or employees of governmental bodies as a part of their official duties or employment; and
(D) the transmitting body or institution—
(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote
compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be
subject to copyright protection; and
(ii) in the case of digital transmissions—
(I) applies technological measures that reasonably prevent—
(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and
(bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention
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or unauthorized further dissemination;
§110(2): explained
• My institution is a nonprofit accredited educational
institution or a governmental agency
• It has a policy on the use of copyrighted materials
• It provides accurate information to faculty, students
and staff about copyright
• Its systems will not interfere with technological
controls within the materials I want to use
• The materials I want to use are specifically for
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students in my class
§110(2): explained
• Only those students will have access to the materials
• The materials will be provided at my direction
during the relevant lesson
• The materials are directly related and of material
assistance to my teaching content
• My class is part of the regular offerings of my
institution
• I will include a notice that the materials are
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protected by copyright
§110(2): explained
• I will use technology that reasonably limits the
students’ ability to retain or further distribute the
materials
• I will make the materials available to the students
only for a period of time that is relevant to the
context of a class session
• I will store the materials on a secure server and
transmit them only as permitted by this law
• I will not make any copies other than the one I need
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to make the transmission
§110(2): explained
• The materials are of the proper type and amount the
law authorizes:
– Entire performances of nondramatic literary and musical
works
– Reasonable and limited parts of a dramatic literary,
musical, or audiovisual works
– Displays of other works, such as images, in amounts
similar to typical displays in face-to-face teaching
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§110(2): explained
• The materials are not among those the law
specifically excludes from its coverage:
– Materials specifically marketed for classroom use for
digital distance education
– Copies I know or should know are illegal
– Textbooks, coursepacks, electronic reserves, and similar
materials typically purchased individually by the
students for independent review outside the classroom
or class session
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§110(2) Checklist
• If I am using an analog original, I checked before
digitizing it to be sure:
– I copied only the amount that I am authorized to transmit
– There is no digital copy of the work available except with
technological protections that prevent my using it for
the class in the way the statute authorizes
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Questions and Discussion
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