Technology Transfer
Seminar Series
-All About CopyrightsKaren Hersey
Senior Counsel for Intellectual Property, MIT. Ret.
Adjunct Professor of Law, Franklin Pierce Law Center
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History of U.S. Copyright (briefly)
 Copyright is federal, not state, law
– Began with the Copyright Act of 1790
– Current statutory law found in the Copyright Act of
1976 (Title 17 USC with an effective date of January 1,
1978)
 Changed from time to time by Congress/treaties
– Berne Convention, U.S. became a member, 1989 (removed
requirement to publish with a copyright notice ©)
– 1998 Amendments (extended term of copyright, established new
penalties for certain activities incl. removing copyright
management)
 Also subject to over 200 yrs of interpretive case law
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What is Copyrightable
 Must be a “an original work of authorship” - very low
threshold of true originality to be a work of authorship;
also, must be fixed in a tangible form of medium (print,
digital, sound recording, video, CD-Rom)
 What’s Originality?
– The work must have “originated” with the author
 What’s meant by “fixed”?
– Computer program is fixed, type is fixed, recorded sound is fixed,
video-taped performance is fixed, work of art is fixed, musical
score is fixed
– Not fixed – oral lecture not recorded, live speech not recorded (“I
Have a Dream”); anything that is ephemeral - transitory
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What is Copyrightable
 Copyright is different from plagiarism –
“plagiarism” is an appropriation of someone
else’s work and passing it off as yours – a
tort. You can plagiarize without infringing a
copyright
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What is Copyrightable
. . . . . . and What’s Not
Copyrightable
– Literary works
– Musical works (score and lyrics)
– Pictorial/graphic works, photographs, art,
sculpture
– Audiovisual works, motion pictures
– Computer software, video games
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What is Copyrightable
. . . . . . and What’s Not
 Not Copyrightable
–
–
–
–
–
Ideas and concepts
Lists showing no originality or authorship (phone book)
Factual Material (raw data, database content)
Titles, short phrases, logos
Public Domain Information
• Copyright term expired (©1922 and before)
• Work of U.S. Government employees
• Never copyrighted (published in the U.S. prior to 1/1/89 without
copyright notice)
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Copyright Protects a Bundle
of Five Exclusive Rights
 The Right to Reproduce (make one/more copies)
 The Right to Prepare a Derivative Work (modify,
translate, abridge, digitize)
 The Right to Disseminate (one copy)
 The Right to Display Publicly
 The Right to Perform Publicly
 Plus, recently, for sound recordings, right to record
digitally
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So, Who Owns the Copyright?
 Presumption that person authoring the work owns it
unless the work is considered a work for hire in
which case the employer is considered the author:
– A work made for hire is one prepared by employee
within the scope of employment; or
– It is a specially commissioned work, and there is a
signed agreement specifying work for hire and the work
falls in one of 9 categories such as:
•
•
•
•
A contribution to a collective work or compilation
Part of a motion Picture/audio visual work
Translation
Supplementary work (maps, indexes, instructional text)
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Who Owns Copyrights at Brandeis?
 The “Brandeis Presumptions” (2004 IP policy)
– “Creator” owned unless:
• Conceived, discovered, reduced to practice
– Funded as part of a sponsored research agreement
– Creator assigned, directed etc. to develop IP and Creator agrees
that Brandies will own (in writing)
– Developed by employees within scope of employment
– Developed with use of University resources exceeding normal use
for employment duties under agreement that university owns
» Examples: web-based course and multi-media materials
developed with university funding or use of specialized
computers
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Term of Copyright (how long is it?)
 If the Author(s) own the copyright
– Life of the Author plus 70 years
 If the Employer owns the work as a work
for hire only – not by assignment
– 95 years from date of first publication or 120
years from the date of creation, whichever
expires first
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A Word about
“Jointly-Authored” Works
 A jointly-authored work will have two or more
authors who intend for their “work” to be merged
into a single work.
 Each owns an undivided interest in the whole
 The term if author-owned (not wfh) depends on
the life of the last to survive author
 There is an obligation to account to the other
author for 50% of proceeds unless a written
agreement to the contrary
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Mechanics of Copyright
 Bottom line: Nothing Required – must only
qualify as a copyrightable work under law
 © not required after 3/1/1989
 Copyright holder may register 2 copies of work
w/Registrar of Copyright in DC and then:
– Copyright holder can sue others for
infringement
– Copyright holder can get court costs, statutory
damages etc.
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Exceptions to the Copyright
Monopoly for Faculty and Students
 Most Commonly-used:
– Library exemption permits one copy to be made
in the library by librarian for patron, but
copying cannot be systematic
– Permits individuals to make a copy in the
library
– Library reserves (electronic is controversial)
– Classroom face-to-face teaching. Cannot be
systematic (one term only) and cannot be used
for distance delivery (outside the classroom)
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The Fair Use Exception to the
Copyright Monopoly
 Fair Use for criticism, commentary, news
reporting, education and research, home
use, BUT subject to 4 factor test:
– Is the use commercial vs. non-profit use
– Number and kind of materials copied
– Amount/kind of material copied relative to the
whole
– Effect on copyright holder’s market
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How Far Does Fair Use Take Us in
Using Copyrighted Materials?
Print to Print
– To reproduce print materials in print
apply 4-Factor test. Greatest weight given
to non-profit use. If use changes to forprofit use (commercial publication) the
academic safe harbor changes.
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How Far Does Fair Use Take Us in
Using Copyrighted Materials?
 Print to Electronic
– For use of print materials that you scan (you
have derivatized) and wish to have used
electronically, greater limitations are advised
due to use of electronic media. Take
precautions to:
• limit number of copies a user makes, amount of text
copied, who has access (control by password)
• how the materials are used, how long the materials
available – shorter time is better
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How Far Does Fair Use Take Us in
Using Copyrighted Materials?
 Electronic to Print
– Use 4-Factor Test
• Make sure copyright notices are reproduced
on copies.
• A print copy of an entire electronic article
may not be permitted. Check the site.
• how the materials are used, how long the
materials are available via a website (the
shorter the better)
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How Far Does Fair Use Take Us in
Using Copyrighted Materials?
 Electronic to Electronic
– Try using the 4-Factor test with safeguards on
access (password controlled); ensure copyright
notices appear, watch amount of text copied,
remind users not to send electronic copies to
friends.
– The electronic product you are accessing may
be subject to a license that eliminates fair use if
it says “no copies” or limits users.
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Navigating the Fair Use Waters
 For scholarly articles
– Excerpting short paragraphs, single images,
charts, grafts, quotes all OK under fair use with
attribution regardless of media
 Coursepacks
– Use 4-Factor test. Will probably fail due to
number of copies, amount of material copied,
effect on market. Get permission – pay fees
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Navigating the Fair Use Waters
 Instructional materials and course readings
– Use 4-Factor test if non-commercial. If commercial purpose, get
permission. Requiring course readings via electronic access can be
a problem
 Multi-media Materials
– Use 4-Factor test, but there may be different copyrights
in a multi-media work. Examples or separate
copyrights
• Text, Images, Sound, Software – copyright holders may be
different
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Two New Laws That Make a
Difference
 Posting Teaching Materials on Your Website
– Subject to the Digital Millennium Copyright Act (2000)
• Faculty, not university bear liability (unless faculty has too
many infractions)
• No safe harbor . . . must abide by fair use limitations
 Distance Learning
– TEACH Act (2002)
• OK to post copyrighted materials for mediated distance
education with restrictions
– May not use educational materials published for distance
learning
– Solely for enrolled students w/restrictive mechanisms in place
– Time-limited take down – at end of course
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What if I infringe? Will I Be Sued?
 Copyright holder can get an injunction to stop
your infringing activity
 Copyright holder can get damages i.e. you pay for
copyright holder’s lost sales
 Copyright holder can get your profits
 Statutory damages from $750 to $30,000. Judge
can award up to $150,000 for willful infringement
 And, there are criminal penalties, too
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Licensing Copyrights in the University:
What’s Important
 Major issue: Who owns the Work?
– If Faculty own . . . . University needs a license
• Issues for faculty-university licensing
–
–
–
–
–
Scope of rights granted . . . Exclusive/non-exclusive
Rights of attribution of authorship and rights of revision
Retained rights of faculty to use for non-competing purposes
Some representation or warranty of originality
Indemnity from faculty if work is infringing
– If University owns as WFH or by assignment required by policy
•
•
•
•
University has all rights
University has of the liability
Should consider retained rights of faculty
Shares revenues with faculty authors
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So, You or Brandeis Want to Get Into the
Electronic Course Delivery Game?
 Bumps on the road to riches you need to think about
– Do you own all the content you are delivering?
– Are you using student contributions?
– Do you have permission to use 3rd party owned materials: Test,
images, film clips – fair use is limited or not available for the
electronic marketplace
– Problems with content as defamatory, libelous, how-to instructions,
violation of rights of publicity etc.
– Is there a COI policy that prohibits competing activities
– And, statutes that both you and Brandeis need to be wary of:
• DMCA and TEACH Act
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Useful Fair Use Websites
 U. Texas:
http://www3utsystem.edu/ogc/IntellectualPr
operty/cprtindx.htm
 Association of Research Libraries
http://arl.cni.org/
 Stanford: http://fairuse.stanford.edu/
 U.S. Copyright Office:
http://lcweb.loc.gov/copyright/
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