I am a librarian and not a lawyer, so I cannot give you legal advice. Even if I were a lawyer, I would not be able to give advice to people who are not clients. Although I will not give you legal advice, I will try to provide you with information about the law and the issues involved.
Purpose of Copyright (Slide 2):
- This is the sentence in the Constitution that deals with copyright.
- Economic incentive to create by giving authors exclusive control over their works
- Limited time imposed so the public may benefit from the work
- To protect authors, not publishers
- To protect creative expressions
What Is Protected? (Slide 3):
- Original work
- Creative work
- Work fixed in a tangible medium of expression
- Protection is immediate
- Registration no longer required
What Is Not Protected? (Slide 4):
- Facts, ideas, procedures, etc. can be protected by other intellectual property laws: patents, trademarks, etc.
- Writing something creative and original about these (e.g., a poem about the theory of relativity) would be protected.
Exclusive Rights Conferred (Slide 5):
- These rights are granted to the author as soon as fixation occurs.
- They are divisible and can be unbundled in exclusive (“transfers”) or nonexclusive license (“permissions”) agreements.
Duration of Terms (Slide 6):
- In reality, this is a lot more complex.
- These are the terms for works created after 1978. Those are subject to the Copyright Act or 1976 (17 U.S. Code) and the 1998 Sonny Bono Copyright Term Extension Act.
- There is also the 1909 Copyright Act to consider.
- 3 generations of protection (not terribly “limited”, as the clause states)
- Coverage is automatic, so it is sometimes difficult to determine owner and status (orphan works).
- Who is being incentivized? The author is often not the rights holder.
The Public Domain (Slide 7):
- Clarify what can definitely be freely used.
- Discuss Lawrence Lessig and CC.
Exceptions (Slide 8):
- Fair Use will be covered in detail.
- Section 108
- Copying materials for replacement and back-up
- Copying for course reserves
- Interlibrary loan
- Limited liability
- Section 110
- 110 (1) – “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution” is not an infringement (but material must be lawfully obtained).
- 110 (2) –TEACH act
- Means to bring face-to-face exception to distance education
- Note the difference between the broad 110 (1) and detailed 110 (2)
- An example of overly complex, regulatory copyright legislation—a trend (e.g., DMCA and Section 108 Study)
Fair Use (Slides 9-14):
“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."
- Note that educational uses are explicitly privileged.
- Whether a use is fair can only be determined in a court of law.
- 4 factors must be considered to determine whether a use is fair and no single factor is to be favored (but the courts have lately been weighing 1 and 4 the most).
- Purpose and Character of the use
- Educational uses, while favored, can be commercial, which is not favored (textbooks, for profit universities).
- Transformativeness – Adds new content or meaning to the work (e.g., parody or criticism). This has become a big issue since the 90’s and has made this factor very important.
- Nature of the copyrighted work
- Factual works are favored.
- Published works are favored. It is the author’s right to decide when to publish.
- Amount and substantiality
- There is no defined portion.
- The Classroom Guidelines in a House Report that was incorporated into the 1976 try to set some limits, but they are impractical and outdated (Georgia State case).
- Effect of use on potential market or value of the work
- This has been the factor that has traditionally been discussed most by the courts, and even the Supreme Court has called it the most important factor.
- It also shows how fair use can shrink if it is not used. Licensing fees are now considered a “market”.
- All of this can be made irrelevant by contractual obligations in licensing agreements with publishers.
Getting Permission (Slide 15):
- Contacting the rights holder directly
- Draft your permissions letter and include as much information as possible on the planned use: who, what, when, where, why, how, how much).
- The problem of orphan works.
- Contact a collective rights organization
- Copyright Clearance Center
- In either case, be sure to get a signed permissions agreement.
- Not getting a response does not imply consent.
Conclusion (Slide 16-17):
- Where to find help
- Other resources