Copyright
and
Copy Wrong
R. Wayne Day
Northwest High School
Fort Worth, Texas
Copyright and Copy Wrong




Part
Part
Part
Part
1:
2:
3:
4:
History of Copyright
Copyright basics
Use of copyrighted material
Creative Commons as
an alternative to traditional
copyrighting methods.
Part 1
History
Of Copyright
The Statute of Anne



Enacted April 10, 1710
A response to powerful
business interests who
had effective control
over the flow of published
information in England.
Created as “an act for
the encouragement of
learning…”
Constitution of the United States
“To promote the progress of Science and the
useful Arts, by securing for limited times
to authors and inventors the exclusive
right to their respective Writings and
Discoveries.”
Article 1, Section 8
Proposed by James Madison at the
Constitutional Convention in 1787 and
passed unanimously by the convention.
Federal copyright laws
The first federal copyright law was signed by
President George Washington on May 31, 1790.
THE PHILADELPHIA SPELLING BOOK was
registered by the author, John Barry, in the
United States District Court of Pennsylvania on
June 8, 1790. It was the first publication to be
granted copyrighted status by the United States
government.
Other Federal (US) laws




Title 17, United States Code
(17 USC 2319) basic copyright laws
Sonny Bono Copyright Term Extension Act extended to
individual author’s lifetime plus 70 years.
Digital Millennium Copyright Act (1998) – outlaws the
circumvention of copyright protection methods
TEACH – Technology, Education and Copyright
Harmonization Act (2002) – legalized distance
educational and other digital uses of copyrighted
material
International law and agreements

Berne Convention for the Protection of Literary
and Artistic Works (1886)
Guarantees basic rights to authors without regard to inter-governmental
relations.
Initially, the United States refused to be bound by the agreement, but
finally joined the convention in 1989.
Has been modified several times over the course of its history.
The World Intellectual Property Rights Organization established in 1967 to
administer the various copyright laws and treaties.
Part 2
Copyright
Basics
A copyright owner has the
exclusive right to:





REPRODUCE the work
prepare DERIVATIVE WORKS based upon the
original work
DISTRIBUTE copies of the work by sale, loan,
rental, or gift
DISPLAY the work, publicly or privately
(movie, artwork, musicals, etc.)
PERFORM the work, publicly or privately
(plays, choreography, audio-visual works, etc.)
A copyright owner also has the right to:


In the case of sound recordings: to
PERFORM the work publicly by means of a
digital audio transmission.
In the case of visual arts: REQUIRE the
works be displayed in such a way to
maintain the integrity of the work, as well
as requiring attribution of the work.
What CAN be copyrighted?

Literary works

Musical works including any accompanying words

Dramatic works, including any accompanying music

Pantomimes and choreographic works

Pictorial, graphic, and sculptural works

Motion pictures and other audio-visual works

Sound recordings

Architectural works
What CAN NOT be copyrighted?





Works that have not been FIXED in
tangible form (works in progress,
speeches or performances that have not
been written or recorded)
Titles, names, short phrases, slogans
Familiar symbols or designs
Lettering or coloring
Listings of ingredients or contents
What CAN NOT be copyrighted?

Works consisting entirely of information
that is common property (public domain)
and contain no original authorship:
Standard calendars
Height/weight charts
Tape measures and rulers
Weather reports and observations
How long does copyright protection last?

For individual works created after 1/1/78
lifetime of the author plus 70 years

For jointly produced works after 1/1/78
lifetime of the authors plus 70 years after the
surviving author’s death

For works for hire:
95 years from publication OR
120 years from creation – whichever is shorter
How does a person secure a
copyright?



Copyright is secured AUTOMATICALLY when a
work is CREATED.
A work is CREATED when it is fixed in a copy or
phono record for the first time.
A COPY is a material object from which a work
can be read or visually perceived, either directly
or with the aid of a machine or device.
Copyright Notice
Public notice that a work is copyrighted



The symbol ©, the word “Copyright” or the
abbreviation “Copr”, and
The year of first publication, and
The name of the owner of the copyright.
© 2005 John Doe and Associates, Inc.
Copyright 2005 Jane Doe
Copyright Notice
Public notice that a work is copyrighted


The use of a copyright notice is no longer
REQUIRED under U.S. federal law, but its
use is beneficial to the copyright holder.
Notice WAS required under the 1976
Copyright Act, but that was eliminated
when the U.S. joined the Berne
Convention in 1989.
Advantages of the Copyright Notice

Informs the public that a work is copyrighted.

Identifies the copyright owner.

Establishes the year of first publication.

Rebuts a defendant’s defense that they didn’t
know that a work was copyrighted.
Copyright Registration
Registration with the Copyright Office is NOT required, but
has several advantages for the copyright owner:



Establishes a public record of the copyright claim
Is required before an infringement suit can be filed in
federal court
If made before or within 5 years of publication,
registration establishes prima facie evidence in court of
the validity of the copyright and the facts stated in the
copyright certificate.
Copyright Registration


If registration is made within 3 months of the
publication of the work, or prior to an
infringement of the work, statutory damages
and attorney’s fees will be awarded to the
copyright owner in court actions. Otherwise,
only the amount of the actual damages and
profits is available.
Owners of registered copyrighted material may
request the assistance of the U.S. Customs
Service for protection against the importation of
infringing copies.
Part 3
Using Copyrighted
Material
The Fair Use doctrine
17 USC 2319
Section 107
Limitations on exclusive rights: Fair Use
What, Oh Wise One, is “Fair Use”?
Section 107 says:
“… the fair use of a copyrighted work, including
such use by reproduction in copies… 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 factors




the purpose and character of the use,
including whether such use is of commercial
nature or is for nonprofit educational
purposes;
the nature of the copyrighted work;
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.
Purpose and Character of Use


Congress favors nonprofit educational use
over commercial (for profit) use.
“Profit” is a broad and inclusive term
Transformative uses are favored:
(example: quotes in a newspaper or
commentary)

The Nature of the work



Is the original “worthy of copyright
protection?”
Compilations of fact receive less protection
than imaginative works
Unpublished works are also protected
The Amount and Substantiality of
the Portion


Quantity, as defined in relation to length
and the amount needed to be used
“heart” of work consideration… anything
that is central to the work is more
protected than little parts which add
nothing to the work
Effect and Use upon the Potential
Market




Is there a ready market for the original
work?
Is your use repeated or long term?
Does the copy fulfill demand for the
original?
Are you making use for which the original
would have been otherwise used?
Section 110 – Face to Face
Allows educators
face-to-face use of
copyrighted materials for
use in the classroom
(including distance
education).
Good Faith Defense



The user had a reasonable belief that the
use was within the Fair Use guidelines,
and
The user was an educational employee or
student in an educational institution, and
The user is knowledgeable about the
basics of Fair Use and Copyright law.
Caution:
The distinction between “fair use” and
infringement may be unclear and not
easily defined. There is no specific number
of words, lines, or notes that may safely
be taken without permission.
Acknowledging the source of the
copyrighted material does not substitute
for obtaining permission.
Guidelines



Various groups have published guidelines
for determining fair use, for everything
from multimedia to classroom use.
The guidelines are NOT law.
Guidelines may ASSIST in your
determination of fiar use, but may also
unduly restrict your freedom to use
copyrighted materials.
Specific Fair Use
Guidelines for
Multimedia works
Film/Video
(motion media)
10%
of the total, or
Up to 3 minutes
Whichever is LESS
Music / Lyrics / Music Video
 10%
of the total, or
 Up to 30 seconds
Whichever is LESS
Additionally: No change to the melody or
fundamental character of the work
Text
 10%
of the total, or
 Up to 1,000 words
Whichever is LESS
Poetry


If poem is LESS than 250 words, the
entire poem can be used.
If poem is MORE than 250 words, then:
10% or
 Up to 1,000 words

Whichever is LESS
Photographs and Illustrations



Must use the complete image.
May use up to five (5) images from any
one artist from any one source.
If the source is a collection of the
complete works of a particular artist, then
you may use up to 15 from that collection.
Penalties





Both civil and criminal
$150,000 per occurrence for willful use
$30,000 statutory damages, regardless of
actual damages
All profits
Attorney fees
Part 4
Creative Commons
Creative Commons
The Creative Commons enables copyright holders
to grant some of their rights to the public while
retaining others through a variety of licensing
and contract schemes including dedication to the
public domain or open content licensing terms.
The intention is to avoid the problems current
copyright laws create for the sharing of
information.
History of Creative Commons
Headquartered in San Francisco, Creative
Commons was officially launched in 2001.
Lawrence Lessig, the founder and chairman,
started the organization as an additional method
of achieving the goals of his Supreme Court
case, Eldred v. Ashcroft.
Lessig was one of the people who challenged the
constitutionality of the Sonny Bono Copyright
Term Extension Act (1988) which kept material
in private hands 20 years longer than it had
before the CTEA.
Eldred v. Ashcroft
Lessig (et al) argued that:

1. By retroactively extending copyright terms,
Congress had violated the requirements of the
Constitution's Copyright Clause, which gives Congress
the following 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
[emphasis added]
Plaintiffs argued that by reading this formulation so as
to allow for any number of retroactive extensions,
Congress could in practice guarantee an unlimited
period of copyright protection, thus thwarting the
intent of the clause.
Eldred v. Ashcroft


2. That any copyright law must be subject to
scrutiny under the First Amendment, thereby
insuring a balance between freedom of
speech and the interests of copyright.
3. That the doctrine of public trust requires
the government to show a public benefit to
any transfer of public property into private
hands, and that the CTEA violates this
doctrine by withdrawing material from the
public domain.
The Supreme Court ruled…


By a vote of 7-2, the Supreme Court ruled that
Congress had precedent to extend copyright
terms and had not infringed upon the 1st
amendment by extending copyright terms.
Lessig later said that he regretted not arguing
that the extension of copyright protection, rather
than allowing works to fall into the public
domain, would cause harm to the economic
health of the country.
So, what IS a Creative Commons
license?
With a Creative Commons license,
you keep your copyright but
allow people to copy and
distribute your work provided
they give you credit -- and only
on the conditions you specify.
All Creative Commons licenses have many
important features in common.
Every license will help you


retain your copyright
announce that other people's fair use, first sale, and
free expression rights are not affected by the license.
Every license requires licensees




to get your permission to do any of the things you
choose to restrict — e.g., make a commercial use,
create a derivative work;
to keep any copyright notice intact on all copies of
your work;
to link to your license from copies of the work;
not to alter the terms of the license
Every license allows licensees, provided they live up to your
conditions,





to
to
to
to
to
copy the work
distribute it
display or perform it publicly
make digital public performances of it (e.g., webcasting)
shift the work into another format as a verbatim copy
Every license
 applies worldwide
 lasts for the duration of the work's copyright
 is not revocable
Types of Licenses

Attribution
must give author credit

Share-Alike
must allow others to use
their work as well

No Derivatives
No changes allowed

Non-commercial
Can not charge
Creative Commons also offers:



Public Domain Dedication – releases the
work into the public domain and restricts
anyone else from copyrighting the work
Sampling License – allows others to use a
part of the original work
Founder’s Copyright – allows an author to
select a 14 year or 28 year copyright,
similar to that which was originally offered
under U.S. law
For more information
www.creativecommons.org
That’s all,
folks!