Karen Kitchens
Intellectual Property Librarian
Wyoming State Library
September 2012
This presentation is for informational
purposes only and is not legal advice.
• Law & Guidelines Overview
• Exclusive Rights
• Scope & Protection
• Copyright Term
• Exceptions & Limitations
• Digital Millennium Copyright Act (DMCA)
• Technology, Education, and Copyright Harmonization
(TEACH) Act
• Software (Briefly!)
• Copyright Permission/Copyright Clearance Center
Congress has the power, “…to promote the
Progress of Science and useful Arts, by securing
for a limited Time to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries.”
- U.S Constitution, Article I, Section 8, Clause 8
United States Code Title 17
Copyright Timeline: History of Copyright in the United States
Association of Research Libraries
• 1790 – Copyright Act of 1790
• 1886 – Berne Convention
 U.S. became a signatory in 1988
• 1909 – Revision of Copyright Act
 28 years plus 28 years renewal
• 1976 – Revision of Copyright Act
 Life plus 50 years
 Fair Use and First Sale Doctrines codified
 Section 108: Libraries and Archives
• 1994 – Conference on Fair Use
• 1998 - Sonny Bono Term Extension
(Oct 27, 1998)
 Life plus 70 years
• 1998 – Digital Millennium Copyright Act
(Oct 28, 1998)
• 2002 – Technology, Education and Copyright
Harmonization Act
17 USC §106
• Creator (author, artist, composer, etc.) exclusive
right to:
 Reproduce
 Prepare derivative works
 Distribute copies by sale (or other transfer of
ownership), rental, lease, or lending
 Perform a work publicly
 Display a work publicly
• Prescribed amount of time.
• Literary works.
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Musical works.
Dramatic works.
Choreographed works.
Pictorial, graphics and multimedia.
Motion Pictures and audio visual works.
Sound recordings.
Architectural works.
Computer software.
17 USC § 102
• Original - the work must be unique and not a
copy.
• Fixed - the work must be written or recorded in
a tangible manner (digital works are considered
tangible).
• Automatic - in force when the work is fixed.
• Copyright Notice
© symbol NOT required.
17 USC § 102
Copyright does NOT protect:
• Facts
• Ideas, Principles, Concepts
• Names, Titles
• Procedures, Processes
• Works prepared by the federal government.
• Works that are in the public domain.
17 USC § 301-305
U.S. Copyright Office Circular 92
Works published on or after Jan 1, 1978:
• Individuals: Life plus 70 years for anything on or after 1978.
• Joint: Life of the last surviving author plus 70 years.
Works published before 1978 and after 1923 are
protected for up to 95 years. (28 year term/67 year renewal)
Copyright Term and the Public Domain in the United States
Cornell University
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Public Domain
Fair Use
Libraries and Archives
Educational Exceptions
 17 USC § 107 Fair Use
 17 USC § 108 Libraries and Archives
 17 USC § 110 Educational Exceptions –
Performances and Displays
• Expired copyright.
• Failed to meet copyright requirements.
• Author deliberately places in Public Domain.
• Federal Documents
 Generally
- works published before 1923.
Creative Commons
17 USC § 107
Broad exception that allows people to use a
work without permission in certain
circumstances.
• Purpose – education vs. commercial
• Nature – fact vs. fiction
• Amount – and substantiality
• Effect – on market or value
Guidelines published by Ad Hoc Committee on
Copyright Law Revision, Author-Publisher
Group, March 19, 1976.
These are guidelines!!
NOT in Copyright Law
Single Copying for Teachers
• Chapter from a book.
• Article from a periodical or newspaper.
• Single of a short story, essay, or poem.
• Chart, graph, diagram, picture or cartoon.
Multiple Copies for Teachers
• Meet test of brevity.
• Meet test of spontaneity.
• Meet test of cumulative effect.
• Each copy includes notice of copyright.
Copyright Circular 21
Definition:
• Poetry = ≤ 250 words.
• Prose = Complete article, if < 2,500 words.
Excerpt of ≤ 1,000 words or 10%.
• Illustration = One chart, graph, diagram, cartoon
or picture per book.
• Special Works = Poetry, prose which combine
words with illustrations, ≤ 2500 words.
Definition:
• Who = Individual teacher must initiate.
• When = Decision to copy close to the time of use.
Definition:
• One course.
• One short poem, article, story, essay or two
excerpts from same author.
• ≤ three from collective work or one periodical
volume.
• ≤ nine items copied in multiples per course during
one class term.
Exempt: Current news periodicals and newspapers
NOT
• Create, replace, or substitute for anthologies,
compilations or collective works.
• Copy from “consumable” works.
• Substitute for purchasing.
• Same item by same teacher repeatedly.
• Charge student beyond cost of copying.
17 Title § 109(a)
First Sale Doctrine
Enables libraries to lend books and other resources.
17 Title § 108
One Copy
(a)
…no more than one copy or phonorecord of a
work (with exceptions) or distribute the copy if:
1) Made without any purpose of direct or indirect
commercial advantage.
2) Open to the public.
3) Includes a notice of copyright.
17 Title § 108
Three Copies of an Unpublished Work
(b) … three copies of unpublished work for purposes of
preservation and security (also open to the public)
If
1) Copy is currently in collection.
And
2) Copy in digital format is not otherwise distributed in
that format.
And
3) Copy is not made available to the public in that format
outside library or archives.
17 Title § 108
Three Copies of a Published Work
(c) … duplicated solely for the purpose of replacement… that is
damaged, deteriorating, lost or stolen, or if existing format is
obsolete.
If
1) Unused replacement cannot be obtained at reasonable price.
And
2) Copy in digital format is not made available to the public in
that format outside library or archives in lawful possession.
17 Title § 108
Interlibrary Loan
(d), (e) … request made from another library or archives of
copyrighted collection may be made
If
1) Copy becomes the property of the user for private
study, scholarship, or research
And
2) Warning of copyright displayed prominently on ILL
order form.
CONTU Guidelines 1978
Interlibrary Loan
• Materials < five years old.
• ≤ five articles from one periodical per year.
• Requests must have copyright compliance
statement.
• ≤ six copies of articles/chapters/small portions
may be made from a non-periodical.
• Face to Face Instruction
• Music Materials Guidelines
Digital Millennium Copyright Act (DMCA)
Technology, Education and Copyright Harmonization
Act (TEACH)
• Digital Education
• Software
17 Title 110
Face to Face Instruction
• Nonprofit educational institution.
• Teaching and learning take place at same time.
• All performances and displays allowed.
• Instructional NOT entertainment purposes.
• Materials must be legally acquired.
• Teaching must take place in a classroom.
Music Materials – Guidelines
U.S. Copyright Office Circular 21
• Emergency copying to replace purchased copies.
• Copies of excerpts; in no case more than 10% of
the whole work.
• Purchased copies may be edited or simplified, not
disturbing the fundamental character of the work.
• Single copy of a sound recording for evaluation or
rehearsal purposes and retained by the institution
or teacher.
1998 Digital Millennium Copyright Act (DMCA)
• Prohibits the circumvention of technological
protection measures.
• Sets limitations on copyright infringement liability
for OSPs.
• Expands existing exemption for copying computer
programs.
• Updates rules & procedures for archival
preservation.
• Mandates study of distance education activities in
networked environments.
• Mandates study of the effects of anti-circumvention
protection rules on the "first sale" doctrine.
Title I: Prohibitions On Circumvention Of Protection Technologies:
• Breaking a technological protection measure that
controls access.
• Manufacture of device, or offering of service,
designed to break an effective "technological
protection measure”.
• Manufacture of device, or offering service,
designed to break technologies meant to protect
the rights of the copyright holder.
17 Title 1201
Exemptions for Nonprofit Libraries, Archives and
Educational Institutions
(d) May circumvent, to review in good faith for
purpose of determining purchase.
• Numerous qualifiers.
• Serious penalties for misapplication.
Use with caution.
Title II: Limitations on Online Service Provider (OSP) Liability:
• Exempts OSP or carrier from copyright liability
because of content by a user.
• Establishes a means for OSP to avoid infringement
liability due to storage of infringing information on
an OSP's own computer system, or the use of
"information location tools" and hyperlinks.
Title IV: Digital Preservation
• Authorized institutions may make ≤ three copies.
• Electronically "loan" to other qualifying institutions.
• Permit preservation when existing format of the
work becomes obsolete.
17 Title § 108 (c)
Digital transmission of copyrighted-protected content
for nonprofit, educational purposes.
“Participants in authorized distance education courses
and programs are not liable for infringement for any
transient or temporary reproductions that occur
through the automatic technical process of digital
transmission.”
• Accredited nonprofit educational institution.
• Instructional activities of government body.
• Occur under the actual supervision of instructor.
• Directly related to course content.
• Technical measures must be used to limit access –
specific students in specific class.
Requirements
Institutional & Policy – Technological – Instructional Planning
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Most licensed.
Read agreement.
Follow terms of agreement.
May prohibit rental or lending.
License restrictions, if any, should be observed for
in-library or in-classroom use.
Software Piracy is a Felony.
17 Title 109
§ 109(b)(2): Lending to patrons allowed
if
• Lawfully obtained.
• Lent for nonprofit purpose.
• Required warning on work.
• Licensing agreement permits.
17 Title 117
Libraries may make one archival copy
if
• One copy.
• Archival copy stored.
• If possession of original ceases to be lawful,
archival copy must be destroyed or transferred
along with the original.
• Copyright notice attached.
If uncertain, ask permission.
• Identify the copyright holder.
U.S. Copyright Office Circular 22
• Send written permission.
• If unable to locate owner - use a limited amount.
Fair Use
• Negotiate licensing terms and secure licensing
fees, or royalties, for payment to copyright
owners.
Copyright Clearance Center
• Primarily corporate or academic users.
• Provides collective licensing.
Karen Kitchens
Intellectual Property Librarian
Wyoming State Library
Phone: (307) 777-7281
E-mail: karen.kitchens@wyo.gov
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Association of Research Libraries, “Copyright and Intellectual Property Policies”.
Influencing Public Policies. Association of Research Libraries, 07 Jul 2011. Web. Aug
2012. <http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml>.
Butler, Rebecca P., Copyright for Teachers & Librarians in the 21st Century . New York :
Neal-Schuman Publishers, 2011.
Crews, Kenneth D., Copyright Law for Librarians and Educators. Chicago: American
Library Association, 2012.
Fisherman, Stephen J.D., The Copyright Handbook. Berkeley: Nolo, 2011.
Hirtle, Peter, “Copyright Term and the Public Domain.” Copyright Information Center.
Cornell University, 2012. Web. Aug
2012.<http://copyright.cornell.edu/resources/publicdomain.cfm>.
Russell, Carrie, Complete Copyright for K-12 Librarians and Educators. Chicago:
American Library Association, 2012.
U.S. Copyright Office, “Circulars.” Information Circulars and Factsheets. U.S. Copyright
Office, 14 Aug. 2012. Web. Aug 2012. <http://www.copyright.gov/circs/>.
U.S. Government Printing Office, “United States Code”. Federal Digital System. U.S.
Government Printing Office, 2012. Web. Aug/Sep 2012.
<http://www.gpo.gov/fdsys/browse/collectionUScode.action?collectionCode=USCODE>.