Copyright in Scholarship and Instruction
Gail McMillan
FDI 2008
Digital Library and Archives
University Libraries, Virginia Tech
http://scholar.lib.vt.edu
US Constitution, Article I, Sect. 8
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.
Copyright Law: U.S. Code, Title 17
Assigns rights and then limits them
Copyright Law: U.S. Code, Title 17
©
©
Section 102: Original authorship stabilized
Section 106: Exclusive rights of creators
Limitations to exclusive rights
© Section 107: Fair use
© Section 108: Library services
© Section 110: Instruction--TEACH Act
– http://www.law.cornell.edu/uscode/17/
– http://fairuse.stanford.edu/primary_materials/codes/
Rights of copyright holders
1. Reproduction
2. Modification; derivative works
3. Distribution; publish
4. Public performance
5. Public display
Title 17 U.S.C. Sec. 106
What kinds of works are protected by ©?
Protected by ©
Literary works
Musical works
Dramatic works
Pantomimes and
choreographic works
Pictorial, graphic, and
sculptural works
Motion pictures and
other AV works
Sound recordings
Architectural works
Not Protected by ©
Ideas and concepts
Procedures and
processes
Systems and methods of
operation
Principles and
discoveries
Titles, names, and short
phrases
Unfixed works
Who owns the copyright?
Creators of original works
Creators' assignees
Employers: works for hire
Protection under federal law is automatic
As of March 1, 1989, copyright notice does not
have to appear on a work for it to be legally
copyrighted.
© 2003 by Gail McMillan
Creative Commons defines the spectrum of
possibilities between full copyright — all rights
reserved — and the public domain — no rights
reserved. CC licenses help authors/creators
retain their copyrights while inviting certain uses
of their works — a “some rights reserved”
copyright.
• http://creativecommons.org/
Creative Commons Licenses
Allow commercial uses of your work?
– Yes. No.
Allow modifications of your work?
– Yes. Yes, as long as others share alike. No.
Jurisdiction of your license (e.g., US)
– http://creativecommons.org/licenses/by-sa/3.0/us/
Copyright registration is not required
(but has important benefits)
http://www.copyright.gov/circs/circ1.html#cr
Reminds the public of copyright protection
Informs public of the copyright owner
Negates “innocent infringement” defense
Certificate is prima facia evidence of validity of
copyright and documents facts
Protects against importation of infringing copies
Pre-requisite to filing infringement suit
Statutory damages and attorney's fees if
4 New Filing Options
1.
2.
3.
4.
Electronic application and deposit
Electronic application and hard-copy deposit
2-D barcode application and hard copy deposit
Paper application and hard copy deposit
Records in eCO (Voyager) database, enhanced search
capability
$35 fee for electronic filing vs. $45 for paper
–
Pay by credit card, debit (ACH), or CO deposit account
Copyright Law: U.S. Code, Title 17
©
©
Section 102: Original authorship stabilized
Section 106: Exclusive rights of creators
Limitations to exclusive rights
© Section 107: Fair use
© Section 108: Library services
© Section 110: Instruction--TEACH Act
– http://www.law.cornell.edu/uscode/17/
– http://fairuse.stanford.edu/primary_materials/codes/
Permission or license to use a copyrighted
work is NOT required if
Work is a fact or an idea
– Phone number, earth is round
Public domain
– US government documents
– Very old [see App. A]
Fair use
Term of Copyright until Public Domain
Jeff Cole, Chief, Literary Division Reg/Record Program, U.S. Copyright Office: OETDA 2008
Author’s lifetime plus 70 years
– If multiple authors of joint work, based on last surviving
author
Works made for hire, anonymous, pseudonymous
– 95 years from publication, or 120 years from creation,
whichever is shorter
Works published or registered before 1978
– 95 years (two-term system with renewal)
– Renewal was automatic for works published 1964-1977
Lolly Gassaway: http://www.unc.edu/~unclng/public-d.htm
Fair Use Myth
It's OK--it's for educational purposes.
Before using someone
else's work without
permission, weigh ALL
4 FACTORS
Checklist [see App. B]
1. Purpose and
character of use
2. Nature of the
work
3. Amount,
substantiality
4. Effect
1. Purpose and character of use
Commercial or educational use
For profit or not
Degree of transformation; value added
For criticism, commentary, news reporting,
teaching, scholarship, research
FAIR USE 1 of 4
2. Nature of the copyrighted work
Worthy of (extensive) protection?
Character of the work?
– fact (information) or fiction (imaginative)
• Published facts weigh in favor of fair use
• Unpublished original expressions weigh in favor of
seeking permission
FAIR USE 2 of 4
Is the letter you wrote to your high school
sweetheart his/hers to publish?
Do you own the copyright to the email you
receive?
3. Amount and substantiality
Use only what is necessary
Quantity in relation to whole work
Quality in relation to whole work
FAIR USE 3 of 4
4. Effect
Harm to potential market or value of a work
after a portion has been used separately
from the whole
FAIR USE 4 of 4
It's publicly available on the web so I can use it
without asking.
It's OK to use someone else’s work as long as I
give proper attribution. It’s like free advertising.
Fair use: CMC Checklist
http://www.copyright.iupui.edu/checklist.htm
Did the scales tip in favor of fair use after
weighing all 4 factors?
If not
– Use library services: Title 17 U.S.C. Sec. 108
• EReserve
– Ask for permission
Copyright permission services
Copyright Clearance Center
– http://copyright.com
RSiCopyright
– http://www.rsicopyright.com/
Association of American Publishers
– http:// www.publishers.org
You asked but they never responded.
You don’t have permission.
Libraries and Title 17 U.S.C. Sec. 108
or, Why the library can but you can’t
Open to the public or to others doing research
Notice of copyright
Reproduction or distribution without profit
Preservation
Reserve Services
– Copying articles, chapters
– Limiting to university community
– Limiting to one term, not sequential
Course Management Systems
University Libraries’ © Resources
http://scholar.lib.vt.edu/copyright/
Reserve Services
ETDs (Electronic Theses and Dissertations)
– Request Publisher's Permission to Use Copyrighted Works.
– You don’t have to give away all your rights to get published.
ILL (InterLibrary Loan) and Document Delivery
Center for Alternative Media (moved to Circulation)
– Fair Use of educational multimedia
– CCUMC Consortium of College and University Media Centers
Photocopy Warning
– Post warning re © restrictions (law)
Copyright for Instruction
USC Title 17 Section 110
– Limitations of certain performances and
displays
– Face-to-face classroom settings
Broadened by TEACH Act (Nov. 2, 2002)
– Technology Education And Copyright
Harmonization
– Must have an institutional copyright policy
TEACH: Technology Education and
Copyright Harmonization Act
Fair use standards in digital education environment
Modified existing copyright law for:
–
–
–
–
–
–
Accredited nonprofit educational institutions
Mediated instruction
Integral part of class session
Limited to enrolled students
Accurately informed about copyright compliance
Reasonably prevent
• Retention beyond course
• Unauthorized further dissemination
TEACH Act: Works allowed
DISTANCE LEARNING CLASS IS THE
SAME AS IN THE CLASSROOM
Show entire nondramatic literary works
– News, poetry, speech, charts, maps
Show entire nondramatic musical works
Everything else in reasonable and limited portions
– Plays, movies, operas, TV shows, choreography
TEACH Act--You must not use
Works marketed primarily for distance
education
Unlawfully made or acquired copies
Materials meant for additional study outside
of class
– EReserve, Reserve, Blackboard
TEACH Act--You must
Transmit as an integral part of class session
regular part of systematic, mediated instruction
Use copyrighted materials only when directly related to the
lesson
Limit access to students enrolled in the course
Have an institutional copyright policy & inform students
about ©
Block further dissemination
Open Access
and
Compliance with NIH Public Access Policy
Roads to Open Access
Authors retain their rights until they transfer
them exclusively to someone else.
– May request and receive permission
– May require a contractual addendum
Authors share their rights by permitting nonexclusive use of their copyrighted works.
NIH Public Access Policy
NSF next?
Public Law 110-161, Division G,
Title II, Section 218 http://publicaccess.nih.gov/policy.htm
The Director of the NIH shall require that all
investigators funded by the NIH submit or
have submitted for them to the NLM PubMed
Central an e-version of their final, peerreviewed manuscripts upon acceptance for
publication. These shall be publicly available
no later than 12 months after the official date
of publication provided that the NIH
implements the public access policy in a
manner consistent with copyright law.
What is required to comply?
1. Retention of copyright sufficient to grant
PMC a license for public access.
2. Submission of an accepted article using
the PMC website
•
Includes confirmation of the final version
3. Verification of compliance in subsequent
applications by including PMC reference
numbers
•
Universities become more concerned with
faculty publications.
When does the NIH Public Access
Policy go into effect?
April 7, 2008: Articles accepted for publication on
or after this date must be deposited in PubMed
Central.
http://www.pubmedcentral.nih.gov/
May 25, 2008: Beginning on this date anyone
submitting an application, proposal or progress
report to the NIH must include the PubMed Central
reference number when citing articles arising from
their NIH funded research. (This includes
applications submitted to the NIH for the May 25,
2008 and subsequent due dates.)
Options for copyright management:
Publish in journals that offer compliance.
Some journals have contracts with NIH PMC.
Some journals will deposit articles in PMC
(Elsevier).
University could negotiate directly with publishers.
Options for copyright management:
Grantee’s institution could take a
limited license for deposit.
Policy issue between university and investigators
License could be automatic, prior to any
publication agreement.
–Authors need to inform publishers.
Licenses are flexible
–Could cover PMC deposit, institutional
repository, or other funder mandates, etc.
Options for copyright management:
Assist authors in managing copyright
themselves.
Risk of institutional consequences for errors or
neglect
Ways to assist authors
• Submission letter at initial contact with journal
• Addenda with rights retention language
Rights retained can be specific to NIH or as broad
as institution needs
NIH suggests language of addenda
The [Journal] acknowledges that [Author]
retains the right to provide a copy of the
final manuscript to the NIH upon
acceptance for Journal publication, for
public archiving in PubMed Central as
soon as possible but no later than 12
months after publication by Journal.
VT Information about NIH compliance
Linda Bucy, OSP, Asst. VP for for Sponsored
Programs Administration
– lbucy@vt.edu
Amanda Burks, Office of Uni. Legal Counsel
– aeburks@vt.edu
Gail’s FDI Copyright/OA References
Copyright Management Center (IUPUI)
– http://www.copyright.iupui.edu/
Crash Course in Copyright (UTAustin)
–
http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm
Library of Congress, Copyright Office
– http://lcweb.loc.gov/copyright/
Legal Information Institute (Cornell)
– http://www4.law.cornell.edu/uscode/17/
Stanford University Libraries
– http://fairuse.stanford.edu
Copyright Registration: OETDA Conference (Jeff Cole)
– http://www.oetda.org/
TEACH Toolkit
–
NIH Public Access Policy
–
http://www.lib.ncsu.edu/scc/legislative/teachkit/guidelines.html
http://publicaccess.nih.gov/policy.htm
ARL NASULGC “Institutional Compliance with the NIH Public
Access Policy: Ensuring Deposit Rights”
–
http://www.arl.org/sc/implement/nih/webcast/further-resources-on-nih-policy.shtml
