Copyright Law in the Digital Age
Vale Conference
January 4, 2013
Robert J. Congleton
Sharon Yang
Rider University Libraries
Introduction
1. Copyright protects the expression of ideas in any
tangible form such as print, film, digital displays
and Web-based works.
2. Copyright law does not protect ideas.
U.S. Copyright Code
Significant sections/amendments for Libraries
1.
2.
3.
Copyright Act of 1976
4.
Individuals with Disabilities Education
Improvement Act of 2004
5.
Preservation of Orphan Works Act of 2005
Digital Millennium Copyright Act 1998
Technology, Education, and Copyright
Harmonization Act of 2002
Copyright act of 1976
- Revised duration of copyright
- For the first time the concept of “Fair Use” was incorporated into
the copyright code
- Codified exemptions for
education, review, research, and news
General Length of Copyright
For Works first published in the U.S. (does not include all items subject to copyright)
1923-1977
95 years for works with proper notice and renewal. 120 years from date of creation for
unpublished works, pseudonymous works, and works made for hire
1978 to present (if created between 1977-1989 and published with notice)
70 years after the death of author. If a work of corporate authorship, 95 years from publication
or 120 years from creation, whichever expires first
For Sound Recordings Published in the United States
Prior to Feb. 1972
Subject to state common law protection. Enters the public domain on 15 Feb. 2067
Feb. 1972 to 1978
95 years from publication. 2068 at the earliest
1978 to present (1978-1989 if published with notice)
70 years after death of author, or if work of corporate authorship, the shorter of 95 years from
publication, or 120 years from creation. 2049 at the earliest
Fair Use
Fair Use attempts to balance the rights of an author with the
societal rights and needs to access creative works. Under Fair
Use copyright is not infringed under certain circumstances.
Copyright Act of 1976 :
The fair use of a copyrighted work … 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 is determined by four factors:
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;
3. the amount and substantiality of the portion used in relation
to the copyrighted work as a whole;
4. the effect of the use upon the potential market for or value
of the copyrighted work.
Fair Use is determined on a case by case
basis
1. Purpose and character of the use
•
•
•
•
•
Profit or Non-profit
Review, criticism, research
Educational
Informational
Transformative
More Fair Use
Less Fair Use
Non-profit
Profit
Review, criticism, research
Other purposes
Educational
Non-educational
Informational
Transformative
Derivative
2. The nature of the copyrighted work
• News
• Factual
• Creative
• Graphs or Charts
• Unpublished
More Fair Use
Less Fair Use
News
Factual
Creative
Graphs or charts
Unpublished
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole
• Linked to the way the item is used and the organization using
it.
• A nonprofit educational institution may copy an entire article
for a class while a for-profit organization more likely would
need permission.
• Transformative uses may allow using a greater portion of the
work
• Guidelines are helpful, but may be too restrictive. They should
not substitute for analysis.
1976 Congressional Report Guidelines
Copying of Material
Permitted
Not Permitted
book chapter, periodical paper, short
story
1 copy per student in class
Creating anthologies of copied
material
book chapter, periodical paper, short
story
One work or two excerpts not to
exceed 3 from the same work or
periodical volume during one class
term.
Copying textbooks, exercise manuals
or other works written specifically for
teaching
book chapter, periodical paper, short
story
Copying cannot substitute for the
purchase of books, publishers’
reprints or periodicals
Poems
250 words or less
Prose
2500 words or 10% of work
(whatever is less)
Chart, graph, diagram, drawing
1 per book or periodical
Multiple copying
9 instances for one course during 1
class term
Guidelines are not part of law and may be too restrictive.
The recent Georgia Tech decision did not follow any guidelines, but relied on
Judge’s analysis.
(4) the effect of the use upon the potential market
for or value of the copyrighted work.
Does the use disrupt the copyright owner’s core market?
Can it be substituted for the original?
Could it supersede the original?
Section 108: Reproduction by libraries and archives
Allows libraries and archives to make reproductions for ILL,
preservation, replacement, and patron research purposes.
Within certain restrictions, a library is permitted to
• Make appropriately tailored course-related content available to
enrolled students via digital networks
• Digitize at-risk items for preservation
• Reproduce materials in its collection in accessible form for the
disabled and retain those reproductions when fully accessible copies
are not readily available from commercial sources
• Reproduce, distribute, or digitize a work during the last 20 years of
its copyright if the copyright holder is unknown
Conditions for Copying
• the reproduction has no direct or indirect commercial advantage
purpose
• the collections of the library or archives are open to the public, or
can be used by researchers not affiliated with the library or archives
or with the institution
• the reproduction or distribution of the work includes a copyright
notice
• The copying library owns a legal copy of the unpublished item
• If copying a published work, it has been determined, after a
reasonable effort, that an unused replacement cannot be obtained
at a fair price
• The digital copy of the item is not is not made available to the public
in that format outside the premises of the library or archives
Not included in copying rights:
• Reproduction and distribution of a musical work, a pictorial,
graphic or sculptural work, or a motion picture or other
audiovisual work other than an audiovisual work dealing with
news
• Systematic reproduction of single articles or portions of larger
works instead of isolated and unrelated reproductions of a
single copy of the same material
Adapting Copyright Law for the Digital Age
A Combination of the following:
1.
Fair use (U.S. Copyright Law 107 Limitations on exclusive rights: Fair
use)
2.
3.
The Digital Millennium Copyright Act of 1998
TEACH Act-Technology, Education and Copyright Harmonization Act of
2002
U.S. Copyright Law 110 (2), Limitations on exclusive rights: Exemption of certain
performances and displays
112 (f) Limitations on exclusive rights: Ephemeral recordings
The Digital Millennuim Copyright Act of 1998
1. It prohibits circumvention of anti-piracy measures
(digital rights management systems).
2. It criminalizes sale, distribution and manufacturing
any device for circumvention of anti-piracy measures
3. An education institution is not responsible for
copyright violation unless the violation is in the
required reading for online classes and the institution
has received two warnings in the past three years.
TEACH Act and Distance Learning
Qualifications for TEACH 2002
Accredited nonprofit institutions (k-12 included)
Works are lawfully made or acquired
Not include works marketed for online teaching
List responsibilities of and requirements for
institutions, OIT, and faculty
Responsibilities for Institutions
1. Develop copyright policies
2. Provide informational materials regarding
copyright
3. Provide notices to students that course
materials may be subject to copyright
protection (may be done by faculty)
Responsibilities for OIT
1.
Limit access to students officially enrolled in the online course
only (Course Management Systems are ok)
2.
3.
Post copyrighted materials for the duration of the courses only
4.
Reasonably prevent students from retaining and distributing the
copyrighted materials (no downloading)
5.
Reasonably not interfere with technological protection measures
in providing copyrighted contents/materials
Retain digital copyrighted materials for future use (take down
and put into storage)
Responsibilities for Faculty
1.
2.
3.
4.
5.
6.
7.
Determine if the work is lawfully made or acquired
Determine the contents to be posted by applying fair use
Portions to be posted
Materials must be delivered as part of the class
Copyrighted contents are related to the class teaching/learning
Supervision by the instructor
Notices to students that the course materials may be subject to
copyright protection (may be done by institutions)
Which of the following may
not be lawfully made or acquired?
1.
2.
3.
4.
Bought a CD
Taped news from CNN
Taped a show from the Discovery Channel
An article from my subscription to a journal
What You Can Post for Online Classes
Apply the following in conjunction with fair use
1.
2.
3.
4.
Performance of nondramatic literary works
Performances of nondramatic music works
Performance of any other works in reasonable and limited
portions
Display a copyrighted work “in an amount comparable to
that which is typically displayed in the course of a live
classrooms session” (US Copyright Law)
What You Cannot Post for Online Classes
1.
Copyrighted works that are not lawfully
made or acquired
2.
Copyrighted works produced or marketed
primarily for performance or display as part
of the online instruction
Converting copyrighted works to digital formats?
You cannot digitalize a copyrighted work
unless
1.
2.
Educators need to confirm that the exact
material converted to digital form is within the
scope of materials and portion limitations
permitted under the new law
Educators need to check for digital versions of
the work available from alternative sources and
assess the implications of access restrictions if
any . (ALA, 2011)
Fair Use and Digital Materials
1.
Securing permission from the copyright
owner
2.
Linking to materials on other sites, rather
than copying and posting
3.
4.
Using material in the public domain
Lawfully using protected materials after a
"fair use" evaluation (Indiana University, 2012)
Which is an infringement of Copyright?
1.
Copying 7 articles and distributing them to students in place of a
textbook.
2.
Photographing a building and displaying it to an architect class
3.
Streaming a music CD to a class
4.
Downloading an image of the Mona Lisa for discussion in an art
class
Which one is not fair use?
1.
Take photos of 10 paintings from an art book to show the
techniques of the painter
2.
Scan an article from a journal to post in electronic reserves
3.
Photocopying one chapter from a book and distributing it to
students in one class for discussion and criticism
4.
Created a blackboard link to a video so that a class can view it
Which one is not covered by fair use?
1.
2.
3.
4.
Create a link to an image in Blackboard for my class
Download an image to put on my handout for decoration
Download an image to illustrate my argument in my handout
Scanned a photo into Blackboard for an photography class
Q&A
Robert J. Congleton, rcongleton@rider.edu
Sharon Yang, yangs@rider.edu
Rider University
References
*
ALA : Distance Education and the TEACH ACT (2011)
http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/Cont
entManagement/ContentDisplay.cfm&ContentID=25939
*
ARL Code of Best Practices in Fair Use for Academic and Research Libraries
http://www.arl.org/bm~doc/code-of-best-practices-fair-use.pdf
*
Copyright Crash Course: Georgia State Electronic Course Materials Case Executive Summary
http://copyright.lib.utexas.edu/GSUcommentary.html
*
*
Copyright Law of the United States http://www.copyright.gov/title17/circ92.pdf
*
*
*
Fair Use (2009) http://www.copyright.gov/fls/fl102.html
*
Limitations on Copyright Owners for Libraries and Archives: Points of Contention and Agreement in an
Examination of Section 108. By Kathleen B. Saylor
http://www.copyrightalliance.org/files/examination_of_section_108_--_saylor.pdf
*
Rider University Copyright Information http://www.rider.edu/offices-services/teaching-and-learningcenter/intellectual-property-teaching-and-learning
Checklist For Conducting A Fair Use Analysis Before Using Copyrighted Materials. Cornell University
http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf
Indiana University : Post Copyrighted Materials Online (2012) http://kb.iu.edu/data/arit.html
House Report no. 94–1476 http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000107----000notes.html