Copyright Law in the Digital Age

University of Central Oklahoma

04.23.2010

speaker:

• Dr. Lolly (Laura) Gasaway
• Associate Dean of Academic Affairs,
• Law School
• University of North Carolina

 

Part 1: Copyright Law in the Digital Age 

ALSO SEE: handout with PPT slides & handwritten notes

 

legal definition: copyright is the right to copy (to reproduce) 

• it's a grant from the government to the copyright holder
• publish & sell rights: there are five parts to this
• substance in form: not an idea or theme, but a tangible form of expression
• literary, artistic, or musical work: 8 categories of "forms" 

 

copyright is a tug-of-war between:

• authors (copyright holders) & public (librarians, teachers, general public)
• the producers/publishers are the sharks waiting below 

 

"author" encompasses a creator of a work, regardless of format of expression

 

as librarians & teachers, we stand up for the public's right

 

constitutional clause: article 1, section 8, clause 8

(we aren't talking about all intellectual property here--I.P. encompasses trademark & patent; today we're only talking about copyright)

 

history of copyright (see handout for details)

• 1710, Statute of Anne; extended rights beyond books to other creators; limited rights for a period of time
• 1909, Copyright Act; reproduction not as much an issue then; issue was rights to import/purchase international editions of books, and publisher's rights
• 1976 Copyright Act; reproduction now an issue, especially with photostat/mimeograph/copy machines; 1960's when copiers began to be widespread; (this is the currently effective act, effective 1978); tried to be as technologically neutral as possible to be future-compatible.

 

took Congress 25 years to revise the 1909 copyright

we probably won't have a revision to the 1976 act for a long time, but we may have amendments

 

term of copyright

• 1909: 28 years + renewed 28 years = 56 years (period of uncertainty about public domain between 28-56 years after copyright date)
• 1976: life of author + 50 years = ? (can't tell by looking at a copyright date if it's in public domain or not)
• 1998 amendment: life + 70 years = ? (retroactive; so it affected works that from 1976 would have gone into public domain already)

 

life + 70 = European Union law, as well (harmonized with EU law)

litigation over the retroactivity provision, which was upheld by Supreme Court

 

corporate author: 95 years after first publication, or 120 years after creation, whichever comes first

Visual Artist Rights Act: after 1990 (also about conformed to the EU rights)

 

if work was published before 1923 = in public domain

(see handout for other terms of copyright)

 

1909 act only applied to published works

1976 act applies to ALL works whether published or not

• SEE CHART IN HANDOUT for details on years & copyright terms

 

publishers put copyright notices on editions of Shakespeare without details: what they have copyrighted is the forward, index, etc, NOT the "meat" of the literature. 

 

registering a copyright is easy:

• complete a form
• submit to LOC's Copyright Office
• $45 fee
• registration allows you to sue for infringement; you can't sue unless you've filed for copyright (you can do this 3 years retrospectively BEFORE you registered for copyright)
• deposit two copies with LOC (this is why Copyright Office hasn't ever moved to the Dept. of Commerce; they have to catalog those deposited copies!)

 

use of the copyright notice IS NO LONGER MANDATORY (as of 1988)

• very important when dealing with online publications that lack copyright notices 

 

8 categories of protect-able works

• literary works (SOFTWARE is a literary work)
• musical works (no longer have to submit written score for registration)
• dramatic works (including recorded for television if it is a play, flat sets on a stage, etc.)
• pantomimes & choreographic works (only protected since the time they could be captured on video)
• pictorial, graphic & sculptural works (largest category of items; includes MAPS, scientific drawings/models; consumer trade goods with a design element: china, jewelry, ties, toys, fabric designs, etc.; copyright of an artistic work is SOLD SEPARATELY from the sale of the art object--often artist retains copyright so they can continue to make & sell prints of a painting, etc.)
• motion pictures & other A/V works (attaches public performance of a work; there is a classroom instruction exception)
• sound recordings (became a big deal with peer-to-peer file sharing; music industry didn't care when we used to record things off the radio, etc.)
• architectural works (added last in 1990; separate from architectural blueprints; we added because EU had it; excludes common architectural elements like windows--just the overall design of the building is protected)

 

rights of the copyright holder:

• reproduction (what publishers do)
• distribution (what publishers do)
• adaptation (derivitave works; like movies made from books, translations, new editions, condensed books, abridged audiobooks, etc.)
• performance
• display (paintings are sold with public display rights automatically)
• public performance of sound recordings by digital transmission (big issue in music industry; 1998 DMCA amendment adds anything that deals with webcasting--radio stations pay royalties with a blanket license fee annually to the composer, now for webcasting they also have to pay licensing fee to the record companies & the performers--however it's a small portion of fee for the performers)

 

Visual Arts  (VARA)

• attribution: right to having a publicly displayed work attributed to you
• integrity: right to NOT having your work altered 
• "unique work of art" applies to anything with fewer than 200 prints or reproductions 

 

NOW things that REMOVE or LIMIT Copyright

 

First Sale Doctrine

• can buy a second-hand book or CD
• can lend materials as a library

 

Public Display of Copies

• can display book jackets physically
• CAN'T do this online (unless separately purchased rights to display book jackets in OPAC, etc.)
• if you are using book jackets from OCLC, that's okay because you are using their license to reproduce them
• you CAN'T photograph/scan the book yourself and use that image

 

Fair Use

• activity that would ordinarily be infringement is excused because of certain conditions
• based on the facts of each case--not cut & dried, despite the statute listing certain conditions
• four factors to apply to determine if use is fair:
• purpose & character of the use: WHY are you reproducing/distributing the work?; the courts favor transformative uses that essentially produce another copyright-able work by the use
• nature of the copyrighted work: facts versus creative works (facts have less protection)
• amount & substantiality used: quantitative examination of how large a portion of the whole work is used (the smaller the better, but very subjective); see Texaco case; qualitative examination: is that portion the "heart" of the work or not? (even small piece may be judged as infringement if it's the main point of the work that is used)
• market effect: this has become the most important aspect; what is the effect not only of this one case, but if these actions became widespread? potential value of the work (difficult to judge with digitized materials online, which may expand the potential market)

 

Multiple Copying for Classroom Use 

(applies only to nonprofit educational institutions)

• produced by publishers & educational associations, to give guidelines for classroom use
• tests that must be met (publishers have agreed on these as "safe harbors," but outside these tests does NOT mean automatically that you are in danger of violating NECESSARILY):
• brevity: an article of 2,500 words or less; an exceprt of 1,000 words or less 
• spontaneity: decision to use material LATE in the class term with no time to ask for permission; made at the techer level not department-head or higher level
• cumulative effects: only 1 copy per course; only 1 article per author, only 3 selections per anthology, periodical volume, collected work per term; no more than 9 instances per class term; may not repeat same item from term to term (because you should have time to request permission)
• notice of copyright: 
• no charge beyond cost of copying: 

 

Coursepacks cases:

• determined not to be fair use when reproduced by commerical copy centers;
• copyright clearance centers are good places that deal with permissions on behalf of professors
• college bookstores ok if they are home-grown, but NOT if they are hosted by commercial bookstores like Efollet
• think about how this might affect online courses... we'll come back to this issue

 

Alternatives 

• Open archives movement; institutional repositories, NIH open archives for grant-funded research
• creative commons:  a way to license your (copyrighted) work without having to grant individual requests for permission; most common only requires proper attribution (some also extend to derivitave works, royalities, etc.)
• one problem: as musician, you must register the work
• worked with large number of countries around the world
• all details for CC are online

 

• putting a copy in a hard-drive folder for your department counts as a copy with the number of people using it (compares to makeing 50 copies, for instance, if 50 people see it)
• link to the original copy (like the vendor-purchased article in the database) is okay

 

Part 2: The Library Exceptions

added in the 1976 act, section 108

 

(see handout for specifics of the act and its DMCA additions) 

 

Section 108(a)

• must be made WITHOUT direct/indirect commercial advantage (NON-profit libraries/archives only)
• collection is open to public or researchers (ILL is a bit of a question, but not related litigation yet)
• the copy MUST include a copyright statement or notice

 

Section 108(b) in-house use of copies (preservation section) of UNPUBLISHED WORKS

• if purpose is for preservation AND
• the item reproduced is owned by that library
• if it's digital, is not made available to the library OUTSIDE of the library premises (the physical walls, NOT a library server EVEN if includes secure IP or logins!!!) 

 

Section 108(c) replacement copies of PUBLISHED WORKS

• up to 3 copies IF OBSOLETE
• not reproduced or made public in digital format  
• makes reasonable effort to locate copy at a fair price   
• obsolete: means the format is only playable on a machine that is no longer produced or reasonably available in the market (as a NEW machine) BUT if you can purchase a copy in ANOTHER format (like a CD replacing a 8-track tape) then you HAVE TO PURCHASE IT IN THE NEW FORMAT (also if it's available in another country, that's considered reasonably available)
• that means because new LP's are currently being produced, you can't digitize copyrighted LPs 

 

see handout for examples of "reasonable effort" and "fair price"  

 

Section 108(d) copies made by libraries for library users

• no more than one copy PER USER
• ILL considered separately
• copy becomes property of the user
• library doesn't hear that the use will be commerical 
• library places notices about copyright (near copiers, etc.)
• DIGITAL COPIES:
• technology-neutral
• "reproduce" not "photocopy"
• BUT limited by terms on "electronic copies" 

 

because material must become property of the user, IF you scan an article and email to a user, keeping that scan may be out of our rights

 

Section 108(e)

• about an ENTIRE WORK or substantial portion of it
• similar points for 108(d)
• most libraries don't take advantage of this because it's too much trouble to photocopy a whole book after determining another library doesn't have a copy or there isn't a copy for sale, etc.

 

Reserve Guidelines

Section 107

print & electronic considerations

 

Print Reserves

• model policy by ALA created in 1978, published in 1982 
• can't be recurring each semester
• only one copy distributed per student
• copyright notice posted on first portion of photocopied material 
• also see guidlines for faculty's request for reserve material (see handout for details)

 

Electronic Reserves

• guidelines in mid-1990's, to make available over campus network but restricted to students in a particular course (NOT all students in the school) 
• some authentication/login method
• only listed under faculty name, course name/number 
• only valid for ONE SEMESTER (otherwise seek permission) 
• include a copyright notice ("no further distribution permitted")

 

Section 108(f)(1) "miscellaneous section"

• library IS NOT LIABLE for copyright infringement performed by non-library individuals IF there is COPYRIGHT NOTICE POSTED
• individuals MAY BE liable
• A/V news programs CAN BE COPIED (for lending purposes, limited number of copies)
• any license agreement signed by the library TRUMPS section 108 and Fair Use 

 

Section 108(g)

• rights extend to an isolated copy and unrelated copy 
• rights DO NOT extend if library employees ARE AWARE that this results in production of multiple copies 
• you CANNOT POST to a corporate/educational INTRANET! 

 

Section 108(g)(2) ILL proviso

• doesn't prevent ILL arrangements

 

CONTU Guidelines for ILL

• commission appointed by Congress
• the "suggestion of five" -- each year a borrowing library may make 5 requests for a periodical title going back 5 years 
• (more provisos detailed in handout) 
• older than 5 years = NOT COVERED IN PROVISIONS, so may have to pay for those copies/lending (weird!)

 

Digital ILL (see handout)

 

Copyright Clearance Center (CCC) Services 

• members are non-profit & pay royalties
• new campus-wide license for colleges & universities (covers almost everything except ILL); based on per-student charge

 

Section 108(h)

• from CETA
• covers distribution when author has already been dead 50 years (last 20 years of work's term)
• right to distribute IF can't be reasonably obtained 

 

Section 108(i): The Exceptions

• all previous things ONLY apply to print materials (exceptions are visual art, music, etc.)
• photos in an article are considered PART of a print material 

 

Orphan Works

• cannot determine who owns copyright (publisher mergers, name-changes, etc.)
• cannot locate copyright owner and/or author
• proposed legislation: 
• no liability IF reasonable effort made to find/identify copyright owner EVEN if owner later shows up 
• legislation DID NOT PASS because of media photographers 

 

Section 108 Study Group Report

• 19 experts (including our speaker) spoke about section 108
• policy makers, not advocates
• volunteers
• sponsored by Copyright Office & NDDIPP 
• met for about 3 years
• tried to reach agreement on issues, particularly relating to DIGITAL WORKS
• problem with 108 relating to "single copy for preservation" -- digitizing a single work takes MULTIPLE copying for each PAGE of a work 
• also MIGRATING to a new technological format therefore is not covered because it is a subsequent copy
• also see handout for more CHANGES in these practices; 
• 108 doesn't account for any of this

 

Section 108 Group's Recommendations:

• add museums!!  (not included with libraries & archives)
• permit outsourcing of activities that touch copyright (outsourceing digitization)
• add section on preservation for back-up copies 
• NO recommendations on USERS (this is easy to define for academic libraries, but NOT for public libraries)

 

Google Books Settlement

• library partners; scanned copyrighted AND public-domain works
• Google retained copies of the scanned works
• didn't gain permission from copyright holders
• EVEN if only the "snippet" is viewable and used, COPYING the entire book is COPYRIGHT INFRINGEMENT
• Google sued by publishers/author groups/ALA 
• there have already been 2 versions of the settlement already
• addressed MORE than the scanning infringement, such as orphan works (benefitting Google) 

 

PROBLEMS:

• partner libraries CAN'T AFFORD to keep preserving these digital copies, so Google benefits by getting the copies, but the libraries can't use them.
• (see more problems on handout) 

 

Part 3: Software, Databases, Internet, WWW, License Agreements

 

Copyrightability of Electronic Databases (in past, print abstracts/compilations fell into literary works category)

• collection of facts, vs. collection of journal articles: is there a difference?
• now: YES. (since 1991); the "sweat of the brow" (value adding--selection, organization, indexing)
• collection of facts (white pages); total universe of data (everyone who has a phone; no "selection"); organization (alphabetical isn't a high level of organization); no added information beyond the facts
• "value adding" makes a database copyrightable (like government documents in Lexis Nexis)
• interestingly, because of the information included, OCLC could possibly be challenged as non-copyrightable

 

what qualifies as a "license agreement" violation varies according to how the database is funded

• flat monthly/annual rate?
• per search basis?

 

license agreements:

• aren't copyright law
• governed as state law
• may either expand or contract copyrights
• important to give copies of license agreements to front-line librarians like those filling ILL requests
• 108(f)(4) = license agreement TRUMPS copyright (see earlier section in these notes)
• if your state requires changes to the contract, make them IN WRITING, initial changes, and sign with the note "accepted with changes noted above"

 

Electronic Publishing

• e-journals in print also
• strictly e-journals (no print version)
• most are governed by license agreements
• we may ultimately have solo digital titles, but not at the moment
• SPARC encourages competitors (Elsevier/other journals) to give greater copyright to article authors
• pre-publication journals
• arXiv: journal of high-energy physics (only about 10 people in the world might understand this article; trying to make articles more available to those that understand/need the information)
• open archives (open access)
• still a lot of CHANGE going on in this area

 

Internet & Copyright

• what does the internet "do" to copyright? nothing!
• all underlying concepts of copyright are the same; this is just a new format for reproduction/distribution
• just very EASY to infringe copyright using the internet
• many things online LACK a copyright notice, but ARE still copyrighted (even list-serv posts!!)
• things that appear online MIGHT NOT be copied there with permission
• articles on which the author retains copyright; you may legally be able to post this online, but it's BEST to add an notice indicating that "this is MY article and I have permission to post it here, etc." & indicate any restrictions on further use
•  

 

"Work for Hire"

• is it a part of your job?
• UNIVERSITY has copyright
• are you posting as "a professional," but not required to write on a blog?
• YOU have copyright
• you are NOT typically hired to write articles on specific topics, so USUALLY authors can get copyright to their articles (IF the publisher allows this!)
• universities DO usually own patents (or have right of first refusal); more commercially lucrative works of intellectual property
• creation of online courses: often owned by universities, may be owned by faculty member and used by university--DEPENDS

 

World Wide Web (www)

• original work: the website itself IS copyrightable (if the work is original)
• if you want to include OTHER copyrighted works?
• UNCLEAR; rules of thumb:
• text: what if you used the SAME AMOUNT of the work in a print work? (3 paragraphs--if you CITED it correctly in a scholarly article (no plagiarism), you wouldn't have to get copyright permission)
• BUT that may be different for novels vs. poems vs. scientific article--is it the "heart of the work?"
• song lyrics are almost always sought permission for printing in a book
• you typically DON'T need to seek permission for a SHORT quote of a few sentences.
• photographs/other graphics: 
• a photograph is considered a "whole work" when reproduced in a print book (what is a "fair use" portion of a photo? CROPPING is usually NOT sufficient because that contains the "heart of the work")
• even if cropping the non-focus of the photograph, that's ALTERING a work to create a DERIVATIVE work (also a copyright!!!)
• chart or graph:  if it's illustrating part of the text, that may be considered part of the text; if it's stand-alone, it may be like a photograph
• clip-art?  use of the clipart collection contains a license agreement; some are online without license agreements (look carefully for accompanying notes about use)
• motion media
• heavy fees for licensing these online ($10,000 quote for posting a one-minute video to advertise a conference)
• music
• some places, 10 seconds or less isn't a problem (if you record it yourself)
• music RECORDING industry is silent on this issue: WARNING!  

   

 

if you get a CEASE & DESIST letter (for print materials or photos/graphics), don't freak out!

• remove the item
• write a response letter saying you have removed the offending item
• didn't realize you were violating copyright,
• apologize

 

LINKING to materials

• considered like a cross-reference; NOT a problem
• just don't link to copyright-infringing websites (you could be considered secondarily liable)
• most professional, large associations or organizations
• academic institutions; faculty (maybe); DON'T trust student websites 
• big business

 

Copyright even protects LIES (hence how it can protect fiction, heh heh)

 

LOGOs are copyrighted/trademarked: LINKS are okay but don't USE the logo AS the link button

 

BE CAREFUL about linking to movies on YouTube

• parodies may be susceptible if they use a clip from the work being parodied
• (for instance, the German Hitler movie where ONLY the SUBTITLES have been changed)

 

Georgia State University litigation

• you can sue for injunction (NOT for damages)
• GSU had been producing print coursepacks & paying royalties; switched to electronic coursepacks and STOPPED paying royalties and didn't seek permission
• also posted online reserves and didn't seek permission AND didn't password-protect them!!
• their copyright policy was drafted by Ray Patterson (who was very PERMISSIVE of Fair Use)
• this litigation is currently pending and will definitely affect future practice of copyright use

 

could individual faculty or librarians be liable?

• possibly; so far only ONE suit has named individual faculty members plus the university

 

Classroom Performances, Online Courses, & TEACH Act

 

CMS (Course Management Software)

• Blackboard, Desire2Learn, Moodle, etc. 
• you pay royalties for using/creating an online coursepack
• online courses are treated DIFFERENTLY than other websites
• similar guidelines to classroom guidelines (for print or electronic reserves; one-semester use without permission)
• easiest/best method: LINK to resources INSTEAD of scanning, copy/paste, posting articles

 

performance & display: movies, recorded music, recording of reading aloud

 

TEACH Act

• covers performances and displays ONLY! (see above for definition)
• transmissions & online portions of courses
• almost all types of works
• 3 types of requirements for TEACH Act (for institution, information tech staff, & faculty)
• (see handout for details; MAAAANY details in the handout here.)
• using a SINGLE chart or graph from a textbook (scanning one graphic) is NOT a problem
• INTENT and similar use in F2F classroom are key points

 

• a NOVEL is a NON-DRAMATIC LITERARY WORK (not a play)

 

 

TEACH Act is MUCH more restrictive than physical (F2F) classroom policies

• BUT LESS restrictive for performance or display online

 

the key to rightfully using copyrighted content is TRANSFORMATIVE not DERIVATIVE  

 

Damages

 

Two Types of Damages (section 504) 

 

 

• actual damages & profits
• statutory damages (POTENTIAL profits damaged; this is typically what is sought against libraries or educational institutions)
• only if item WAS REGISTERED at the time of the infringement

 

see handout for more damages details (ranges of damages sought, etc.)

 

 

remission of damages: if the individual is an employee of a non-profit educational institution and was innocently infringing, damages can be completely removed; BUT nothing stated about the opposing party's (copyright holder's) attorney fees

 

criminal damages:

• REPEATED infringement considered "willful infringement"
• aimed at commercial-scale piracy or aimed at every computer user? (depends on who you listen to)
• penalties: could be sentenced to FEDERAL PRISON; but instead of acting as a deterrent, the penalties are so ridiculously steep that they almost ensure that n o individual will be sentenced to that extent!
• 11th Amendment Immunity:  states are NOT immune from suits, but ARE immune from monetary damages in SOME states (actual or statutory damages); this would apply to some public libraries -- STILL allowed to sue for injunction (to make a point)

 

Dr. Gasaway's thoughts about the future of copyright...

• she thinks university presses are in danger; there are only about 50 left that haven't folded; their small sales (maybe 300 per title) are often damaged by faculty/librarians copying large portions of the works
• she thinks TEACH Act will be amended (to our benefit) because there is longer experience with online education
• she thinks Google Books settlement will cause amendments to Orphan Works practice/legislation, to our benefit