1	Copyright for Librarians presented by Carl Rahkonen © 2004
2	Disclaimer! Carl Rahkonen Is NOT a lawyer He does NOT want to become one Especially because of all the lawyer jokes This presentation should NOT be taken as legal advice This presentation only a summary and overview of the literature on copyright
3	Where is Rahkonen “coming from”? Taught a unit on basic copyright for his graduate Music Bibliography course Attended 2 MLA workshops on copyright with Laura Gasaway and Dwayne Butler Attended a conference on copyright at the Library of Congress in Dec. 2000 Attended DMCA hearings 2003 Studied copyright sites on the WWW
4	What is copyright? The right to copy or use another person’s creative work.
5	Why study copyright? (from Dwayne K. Butler, IUPUI) Copyright is broad = includes all “original works in a ‘tangible’ form” Copyright is long = Life of author +70 years Copyright is pervasive = touches nearly all stored information in teaching and research Copyright is flexible = incorporates the concept of “fair use”
6	Copyright Laws Until the early 20^th century, U.S. Law followed British Law First comprehensive U.S. law came in 1909 First major revision to U.S. law passed in 1976, took effect January 1, 1978. DMCA/TEA passed in October 1998*
7	The Law has always Lagged behind Technology The 1909 excluded sound recordings, even though they had been around since 1879. The 1976 law didn’t cover software, though the PC was born that same year. The DMCA became necessary because of the “Internet Revolution” of the 1990s. DMCA provisions are still being tested.
8	The Great “Intellectual Property” Debate In the United States there has always been two competing ideas re: IP: 1. The right to “free and open access” to all information and ideas. 2. The right to make a profit or to protect the integrity of your creations.
9	James Madison Argued for exclusive rights for writings or inventions, as an incentive for people to create.
10	Thomas Jefferson Argued against “monopolies” for creative works, or the ownership of ideas.
11	The Great Intellectual Property Compromise in the U.S. Constitution “ To promote the Progress of Science and the useful arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries”
12	“Spirit” of the U.S. Law “…To Promote the Progress..” exclusive rights of Authors and Inventors but only for a limited time
13	“…To Promote the Progress..” Balances the rights of authors to protect their creations / with the right of the public to “build” upon those creations
14	Rights of Authors and Inventors To gain income from their creations To protect the “integrity” of their creations
15	“…but only for a limited time…” All creative material will eventually pass into “public domain” to ensure that new things are invented and created
16	What can be copyrighted? Only “original works of authorship” Produced from the author’s “own intellectual efforts” (not copied) Must have a degree of “creative authorship” (only a small degree necessary) No requirement of novelty, ingenuity or esthetic merit
17	Who owns copyright? Immediately becomes the property of the author who created the work Works “made for hire” become the property of the employer “Collective works” have a separate copyright from the individual works contained in it
18	Protected Works (Sec. 102) Literary works Including electronic documents and software Musical works Dramatic works Pantomimes & choreographic works
19	Protected Works cont. Pictorial, graphical or sculptural works
20	Protected Works cont. Motion picture and other audiovisual works -- Including web pages Sound recordings Architectural works with the DMCA: Boat hulls
21	Works NOT protected Tiles, names, short phrases, slogans etc. (some protected by Trade Mark) Ideas, procedures, methods, systems etc. (some protected by Patent) Works consisting entirely of common property with no original authorship: calendars, directories, tape measures and rules, height and weight charts, phone books, URLs…
22	Public Domain When the copyright has expired When author make no claim of copyright: “dedicated to the public” Federal Documents (Sec. 105)
23	Basic copyright concepts Term (duration) Fixation Notice Publication Registration / Deposit
24	Term of copyright 1909 act: 28 years (+ renewal) = 56 years 1976 act: Life of author + 50 years 1998 Term Extension Act: Life of author + 70 years (same as Berne Convention) Corporate authors = 95 years from first publication
25	Fixation Copyright law only applies when something is “fixed” in a tangible media The assumption is that it is “finished” and “complete” Sufficiently permanent to be copied or transmitted
26	Fixation cont. “Tangible Medium” Printed Sound recorded Video recorded Sculpted in stone Web page Computer file
27	Fixation cont. Items not fixed Understood as something not written or recorded: Unrecorded speech Improvisation Performance art Sidewalk art
28	Notice Means displaying copyright symbols: © for printed material for recorded sound and video together with the copyright date and name of copyright holder
29	Notice cont. 1909 act: copyright notice had to be displayed. Current acts: copyright notice may or may not be displayed. Displaying it makes a stronger case in Federal Court.
30	Publication 1909 act: work had to be “published” for copyright. Current acts: Copyright applies the moment a work is “fixed,” whether or not is is published.
31	Registration / Deposit 1909 act: Had to register and deposit 2 copies with the Library of Congress. Current acts: Copyright applies weather or not it is registered and deposited. Must be registered and deposited to sue in Federal Court.
32	Basics of “Fair Use”
33	Sec. 106 Exclusive Rights of the Copyright Owner Reproduction Distribution Adaptation Performance Display
34	For Visual Art (Sec 106A) Attribution Integrity
35	Exclusive Rights Cont. Should be understood as a “bundle of rights” Each right is separate and distinct The owner can sell or lease each right individually
36	Sec. 107 “Fair Use” Notwithstanding the exclusive rights of the copyright holder in Sec. 106 Certain uses are permitted These uses have to be “fair” to both copyright owner and user Apply the “Golden Rule”
37	Sec. 107 “Fair Use” cont. Fair use is not an absolute. It balances the interests of the owner and user Only provides guidelines
38	Fair Use (four tests) (Sec. 107) Purpose and character of use Nature of the copyrighted work Amount and substantiality used Market effect
39	More Fair ß à Less Fair Purpose: Educational Nature: Published Factual / Non-fiction Amount; Small amount Market Effect: No loss of income Commercial Use Unpublished, Highly creative, artistic Large amount, or whole work Loss of income
40	Purpose or Character of Use Favoring “Fair Use” (From IUPUI “Checklist for Fair Use”) Teaching (Nonprofit Educational) (including multiple copies for classroom use) Research / Scholarship Review or criticism Journalism Parody or satire
41	1. Purpose or Character of Use NOT favoring “Fair Use” Commercial activity Profiting from use Entertainment Bad faith behavior Not giving credit to original author
42	2. Nature of the work Favoring “Fair Use” Published work Factual or Nonfiction Important to educational objectives
43	2. Nature of the work NOT favoring “Fair Use” Unpublished work Fiction Highly creative work Art, music, novels, films, plays …
44	3. Amount Used Favoring “Fair Use” Small quantity Portion used is not central or significant to the entire work Amount is appropriate for the educational purpose
45	3. Amount Used NOT favoring “Fair Use” Large portion or whole work used Portion used is central to the work or the “heart of the work”
46	4. Market Effect Favoring “Fair Use” User owns legal copy of original work One or a few copies made No significant effect on the market Lack of a licensing mechanism Access only for members of the class
47	4. Market Effect Not favoring “Fair Use” Could replace sale of copyrighted work Significantly impairs market Reasonably available licensing mechanism Affordable permission available Numerous copies made Repeated or long-term use Put on the Web or other public forum
48	Fair Use Guidelines Single copying for scholarly research A chapter from a book An article from a periodical or newspaper A short story, poem, or essay A chart, graph, diagram, drawing, cartoon or picture
49	Fair Use Guidelines Multiple copying for classroom use TESTS: Brevity Spontaneity Cumulative effects Notice of copyright No charge beyond cost of copying
50	Fair Use Guidelines Multiple copying prohibitions: Copying to create anthologies Copying “consumable” works No charge beyond the actual cost to copy Copying shall not: Substitute for purchase be directed by a higher authority be repeated by the same teacher from term to term
51	Fair Use Guidelines for Music Permissible uses: Emergency replacement for an imminent performance Academic study (no more than 10%) Simplified arrangements Single copy of a recording for evaluation and rehearsal Single copy of a recording for constructing aural exercises or exams
52	Fair Use Guidelines for Music Prohibitions: Copying to create anthologies Copying “consumable” works Copying for performance (except A1) Copying to avoid purchase (except A1&2) Copying without inclusion of copyright notice
53	Sec. 108: Fair Use for Libraries and Archives
54	Sec. 108 Copying by Libraries and Archives Sec. 108(a) Published materials: One copy NOT an infringement IF: 1. No commercial advantage 2. Collection open to the public 3. Reproduction and distribution contains notice of copyright
55	Sec. 108(b) Unpublished Materials Purpose must be for “preservation, security or deposit for research in another library…” and Original currently in the collection DMCA: Digital copy not distributed “outside the premises of the library…”
56	Sec. 108(c) Replacement of damaged, lost or obsolete copy Library makes a “reasonable effort” to obtain a replacement at a “fair price” DMCA: Digital copy not distributed “outside the premises of the library…” Obsolete = no longer manufactured or is no longer reasonably available
57	Sec. 108(d) Making copies for Patrons (“Users”) Applies to photocopies of articles, not to music, video, art, etc. Copy becomes property of the user Library has NO notice that it will be used for a non-Sec.107 purpose Library displays prominently copyright warning (on place, form and item)
58	Digital Millennium Copyright Act DMCA
59	NII (National Information Infrastructure) Task Force Formed in 1993 to study international and domestic legal reforms In 1994 with DOC, published a “Green Paper” calling for public input Initiated a “Conference On Fair Use” CONFU
60	1996: WIPO (World Intellectual Property Organization) Conference Considered three treaties: 1. Following NII lead, create international consensus on copyright in a digital world 2. Additional protections for performers and producers of sound recordings 3. Setting standards for protection of databases
61	1997: Some Core Issues Emerge Proposals to prohibit circumvention of technological prevention measures Compliance with Berne and WIPO treaties Limitation of OSP liability Database protection Distance education Library exemptions
62	1998: The DMCA is Born Does not supercede the 1976 U.S. law, only revises and supplements it. Only certain provisions passed, others left for further study, ex. distance education, and database protection. Term Extension Act a separate, but related law.
63	DMCA Title I WIPO Treaties Implementation § 1201: Prohibition against circumventing “technological protection measures” Prohibits …any device designed to circumvent copyright protection measures (k) Mandates video recorders with “automatic gain control’ copy technology
64	DMCA Title I § 1201 cont. Spells out exemptions for: Education Libraries and archives Reverse Engineering Law Enforcement Encryption Research Security testing
65	DMCA Title II Online Infringement Liability Limitation Specifies “Safe Harbors” where the “Online Service Provider” is not held liable for copyright infringement on their system: Transmission and routing Systems storage and information location System caching
66	DMCA Title III Computer Maintenance or Repair Exemption “owner or lessee of a computer can make a copy of a computer program under certain conditions to repair or maintain hardware” Refers to a program in RAM memory, made when a machine is activated copy is “destroyed” upon completion of the maintenance or repair
67	DMCA Title IV Miscellaneous Provisions Sec. 404: … Updates Sec. 108 to allow libraries and archives to take advantage of digital technologies in specified preservation activities Library can make up to 3 “preservation” copies, one of which can be digital Digital copy can only be used on “the premises of the library or archives” …
68	DMCA Title V Protection of Certain Original Designs Adds boat hull design to the copyright law. Specifies many details Registration of design Penalties for infringement Relationship with patent law…
69	S. 505 The Sonny Bono Copyright Term Extension Act Brings U.S. law into “harmonization” with Berne Treaty of 1988 Extends current term of copyright by 20 years: Life of Author + 70 years, or 95 years for corporate authorship
70	S. 505 The Sonny Bono Copyright Term Extension Act cont. Applies to all materials under current copyright, and retrospectively to 1978 Sometimes referred to as the “Mickey Mouse” law, since “Mickey” would have come into public domain in 2003, but now will in 2023.
71	The Sonny Bono Copyright Term Extension Act cont. Includes an exemption for education and libraries to treat material in its last (new) 20 years as if it were in public domain if: Non-commercial purposes Work not subject to “commercial exploitation” Use stops if copyright owner provides notice to the contrary
72	Database Bill Not passed in the DMCA, but pending Would extend copyright protection to “databases of information” broadening concept of “compilation copyright” These databases may be of facts, data, and government works which are currently considered “in public domain”
73	Database Bill is controversial because: A new licensing regime would need to be created to use information in copyright protected databases Which has broad implications for digital communication, libraries, scholarship and education
74	Where do we go from here? Provisions of the DMCA will be tested The true boundaries of the law will be found through litigation The need for timely copyright law revision will undoubtedly only increase Technology will “drive” the law
75	Case Studies
76	Copyright case study #1 You have some old Betamax tapes in your library collection. You check and find that the titles (from the 1970s) are not available on VHS or DVD. Using an old Beta machine to play back these tapes, and a new DVD recorder, you decide to make DVDs of these old tapes for your collection.
77	Copyright case study #1 answer Yes, this can be done legally according to the provisions of Sec. 108, making “preservation copies” for libraries and archives. Beta may be considered an “obsolete format” The DMCA allows libraries to make up to three digital copies, for preservation purposes. Technically “should be used on the premises”
78	Copyright case study #2 You are the director of a church choir. The church has limited funds, so you buy one copy of a choir piece and photocopy the rest needed for each member of the choir. You figure this is o.k. since it is for a “nonprofit” organization.
79	Copyright case study #2 answer This is a serious violation of copyright law, which forbids copying to avoid purchase. It is illegal and unethical. Doing it for a “nonprofit’ organization provides NO protection under the law. Possible solution: buy half the number of parts needed and have choir members share.
80	Copyright case study #3 The person in charge of your library web-page “surfs the net” and finds some pages that look great. She decides to “borrow” a particularly good page, and uses that page as a template to create a new page.
81	Copyright case study #3 answer The overall design of a web-page (its unique combination of color, graphics, and text) is protected by copyright It all depends on how much the new page is like the original page, and if it can be perceived by an “average person” as being a copy
82	Copyright case study #4 A person finds a great web page consisting of links to other pages He decides to use several of the URLs in designing a new page of links He does not use any of the color, graphics, or text from the original page
83	Copyright case study #4 answer A URL is a “fact,” an “address to a location” and by itself is not copyrightable A compilation of URLs, on the other hand, may be unique and is protected by copyright The case depends on whether the new page contains the entire compilation, or just some of the same links Best just to link to the original page
84	Thank you! My presentations, as well as many other Copyright sites, may be found linked to my personal web-site at: http://www.people.iup.edu/rahkonen