COPYRIGHT FOR FACULTYClemson University General Counsel’s Office

September 10,

Brief Summary of Copyright Fundamentals

What is copyright?

Copyright protection is provided under federal law for “original works of authorship.” It gives the owner of copyright the exclusive right to do and to authorize others to:

Reproduce the work in copies or phonorecords;

Prepare derivative works based on the work;

Distribute copies or phonorecords to the public by sale, transfer of ownership, rental, lease or lending;

Perform the work publicly; Display the work publicly

Why should faculty care about copyright law?

You are creators and users of copyrighted works.

Significant penalties can be imposed for copyright infringement.

Copyright law may restrict how faculty can use copyrighted works in their teaching, research and writing.

Copyright law offers a number of exceptions that can apply in an educational setting.

What does copyright protect? Literary works (books, articles, and software

programs); Musical works including accompanying words; Dramatic works including accompanying music; Pantomimes and choreographic works; Pictorial, graphic, and sculptural works; Motion pictures and other audiovisual works; Sound recordings; and Architectural works (plans and drawings and

buildings themselves) 17 USC section 102(a)

What are the requirements for copyright protection?

It must be “original”

Reflect a minimal degree of creativity and

Not have been copied.

It must be “fixed in a tangible medium of expression.”

Its embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.

What does copyright NOT protect? Works not fixed in a tangible form of expression

(improvisational speeches or performances that have not been written or recorded);

Titles, names, slogans or short phrases; common symbols or designs; mere listings of ingredients or contents;

Works consisting entirely of “common property” and no original authorship such as standard calendars, height and weight charts, tape measures , rulers etc.;

Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries (17 U.S.C section 102(b))

How to secure a copyright

Copyright is secured automatically when the work is created. Publication is no longer required.

A work is created when it is first fixed in a copy or phonorecord.

Copies are material objects, other than phonorecords, in which a work is fixed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (books, manuscripts, film, sheet music, videotape, or microfilm).

Phonorecords are material objects in which sounds are fixed other than those accompanying a motion picture or audiovisual work (cassette tapes, CDs or LPs). (17 USC section 101)

Example - A song (the “work”) can be fixed in sheet music or in phonorecords or both.

Copyright Notice – No longer required

The requirement of a copyright notice ended as of March 1, 1989 after the United States became a signatory to the Berne Convention.

However, copyright notice can still impact the copyright status of older works.

Use of a copyright notice informs the public that a work is protected, identifies the copyright owner and the first date of publication. It can also prevent a defense of innocent infringement.

Example – Copyright 2010 Jane Doe

Copyright Registration

Copyright registration is the process of making a public record through the US Copyright Office of the facts related to a particular copyright. Although registration

is not required, there are benefits to copyright

registration: Registration is necessary for works of US origin before

an infringement action can be filed in court. If made before or within 5 years of publication,

registration will establish prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration.

Copyright Registration continued If registration is made within 3 months

after publication of the work or prior to an infringement, statutory damages and attorney fees are recoverable. If this requirement is not met, only actual damages can be recovered.

Once registered with the US Copyright Office, the owner can record registration with the US Customs Service and obtain protection against the importation of infringing copies.

How long does copyright protection last? Summary of General Rules

PROTECTED FROM:

For works created after1/1/78 - Date of

creation (date first fixed in a

copy or phonorecord)

TERM: For works authored by an

individual - life of the author + 70 years.

Two or more authors – 70 years after surviving author’s death.

For a “work for hire” or anonymous or pseudonymous works - the shorter of 95 years from publication, or 120 years from creation.

Works created before 1/1/78 but not published or registered by that date

PROTECTED FROM:

1/1/78 – these works have been broughtunder the statute and given federal copyright protection.

NOTE: For more detailed information

about copyright duration see:

Library of Congress Copyright Office, Circular 15A, Duration of Copyright (Washington D.C. Library of Congress August 2010)http://www.copyright.gov/circs/circ15a.pdf

TERM:

Generally it is the same

as for works created after 1/1/78: Life + 70 years or 95/120 years

Works created and published with notice or registered before 1/1/78

PROTECTED FROM:

When published with notice or on the

date of registration if the work was registered in unpublished form.

NOTE: For more detailed information

about copyright duration see:

Library of Congress Copyright Office, Circular 15A, Duration of Copyright (Washington D.C. Library of Congress August 2010)http://www.copyright.gov/circs/circ15a.pdf

TERM:

28 years for the first term

and 67 years for the second term if renewed. For works secured between 1/1/64 and 12/31/77, the second term is renewed automatically.

Public Domain

Once the applicable copyright term has expired, the work passes into the “public domain” and may be freely used by anyone for any purpose.

Any work that was first published in US before 1923 is now in the public domain under US law.

Any work published in the US without a copyright notice before January 1, 1978 is in the public domain. This is not because the term lapsed but because the work was already in the public domain under the prior law.

Public Domain continued

“Publication” means “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of person for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” (17 USC section 101)

Works created by federal officers or employees as part of their official duties such as presidential speeches, congressional reports, and federal judicial opinions are in the public domain.

Exceptions to Copyright Protection

Copyrighted Works – Face-to-face teaching

The following is not an infringement of copyright: “performance or display of a work by instructors

or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;” (17 USC section 110(1))

Copyrighted Works – Face-to-face teaching continued

Therefore, faculty and students do not have to seek permission to perform or display any copyrighted work in the course of face-to-face teaching in a classroom.

“Perform” means to show a film or video, recite a poem, read or act out a play, etc. and “display” means to show a copy either directly or by means of a projection.

For an audiovisual work it must be a copy that is lawfully made or purchased.

This exception does not include the right to make or distribute copies or to make derivative works based on the works that are performed or copied.

Distance Education – Performance and Display of Copyrighted Works

The Technology, Education, and Copyright

Harmonization of 2002 (TEACH Act) provides

teachers with safe harbors for distance education.

However, because of the nature of distance education

and the ease in which material can be copied and

distributed, there are more requirements and

restrictions than the exceptions applicable in the face-

to-face classroom setting. (17 U.S.C. section 110(2))

Distance Education – TEACH Act restrictions

Only “an amount comparable to that which is typically displayed in the course of a live classroom session” can be “displayed.”

Nondramatic literary works (poems, novels, textbooks) and musical works may be “performed” in their entirety. However, other works may only be performed in “reasonable and limited portions.” (Under the TEACH Act you cannot show an entire film in a Distance Education course, but it might be considered a Fair Use.)

Distance Education – TEACH Act restrictions

Only applies to accredited, non-profit educational institutions.

The work performed must be from a lawfully made copy.

The use must be for “live” or asynchronous class sessions.

Access to the works must be limited to students enrolled in the course “to the extent technologically feasible.” (Blackboard)

The performance or display must be at the direction of the instructor as an integral part of a distance education class session and directly related to the teaching content of the transmission.

Distance Education – TEACH Act restrictions

The use must not include transmission of textbook materials or other materials developed for online use.

The institution must prevent students from retaining copies of the materials or distributing copies to others by implementing “technological measures that reasonably prevent” these activities. (For example, use streaming video.)

The institution must adopt a copyright policy and educate its faculty, students, and relevant staff about copyright law.

Fair Use – statutorily permitted use of copyrighted works.

Under section 107 of the Copyright Act:

“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.”

Determining what is a “Fair Use” must be done on a

case by case basis.

Fair Use – Four Factor Balancing Test

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; and

4. the effect of the use on the potential market for or value of the copyrighted work.” (17 U.S.C. section 107).

What is the PURPOSE of the use?

Educational instruction Access restricted to

students Scholarly research,

personal use Student use to complete

assignment Statutory use – education,

criticism, comment, news reporting

Transformative – use the material in different manner or for different purpose

Commercial use Profiting from use For publication For public distribution Not transformative –

for same purpose as originally intended

No attribution to original authors

Favor Fair Use Weigh Against Fair Use

What is the NATURE of the use?

Factual Use Non-fiction Scientific Works Not creative

Creative, Imaginative or Artistic Work

Consumable Work – once used is not consumable by others (workbooks, standardized tests etc.)

Work intended for publication

Favor Fair Use Weigh Against Fair Use

What is the AMOUNT of the work?

Small excerpt, extract or clip

Only portion used that is needed for educational purpose

Not the “heart of the work”

Use entire work or large portion of work

Portion used is the “heart of the work”

Favors Fair Use Weighs Against Fair Use

What is the MARKET EFFECT?

Use helps the market for the original work

Won’t impact market for original work

No licensing system in place

Use does not cause economic harm to copyright owner

Harms market for original work

If there is a market – repeated use is problem

Licensing mechanism exists

Use competes with original use

Favors Fair Use Weighs Against Fair Use

Fair Use – Very General GuidelinesThe Fair Use Factors are not a math equation. However, the more factors in favor and the stronger those factors the more likely you have a fair use. Four factors in favor - probably is Fair Use (unless your

analysis of one or more factors is not accurate) Three factors in favor - probably is Fair Use (however if one

factor strongly disfavors Fair Use - especially the Market Effect - might not be Fair Use)

Two factors in favor - probably not Fair Use – depends on the factors and how strongly they favor Fair Use

One factor in favor - very unlikely it is Fair Use No factors in favor - not Fair UseIf not Fair Use – need to get permission to use.

Single copies for teaching and research

Under guidelines negotiated by representatives from the publishing industry and higher education, it is generally accepted that faculty may make single copies of the following for use in scholarly research, teaching, or preparation for teaching: A chapter from a book An article from a periodical or newspaper A short story, short essay, or short poem A chart, graph, diagram, drawing, cartoon or picture from a

book, periodical or newspaper.

This is the minimum that constitutes Fair Use – not the maximum

Multiple Copies for Classroom Distribution and Use

Under a similar set of negotiated guidelines, it is generally considered Fair Use

for faculty to make copies and distribute them to students for class if they meet

the following tests of brevity, spontaneity and cumulative effect:

BREVITY Poetry – complete poem if less than 250 words and printed

on not more than 2 pages or an excerpt of not more than 250 words from a longer poem.

Prose – a complete article, story, or essay consisting of less than 2,500 words or an excerpt of not more than 1,000 words or 10% of any other prose work, whichever is less, but in any event a minimum of 500 words. (Limits for poetry and prose can be expanded to complete a paragraph.)

Illustration – a single chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.

Multiple Copies for Classroom Distribution - continued

SPONTANEITY Copies must be made “at the instance

and inspiration of the individual teacher.” The decision to use the work and “the

moment of its use for maximum teaching effectiveness” must be “so close in time that it would be unreasonable to expect a timely reply to a request for permission.”

Multiple Copies for Classroom Distribution - continued

CUMULATIVE EFFECT Copying must be for only one course. The copying must be limited to one

short poem, story, or essay or two excerpts from the same collective work or periodical volume.

No more than nine items may be copied for one course during one class term.

Multiple Copies for Classroom Distribution - continued

OTHER PROHIBITIONS Each copy must include a notice of copyright. “Consumables” such as workbooks, exercises, and

tests may not be copied. Copying may not be used to create or substitute for

anthologies, compilations, or other such collective works.

Copying cannot substitute for the purchase of books, publisher’s reprints or periodicals.

Copying cannot be directed by a higher authority. Copying cannot be repeated with the same item by

the same teacher from term to term.

Digital Millennium Copyright Act (DMCA) – Brief Summary

The DMCA is a copyright law passed by Congress in 1998. Generally it criminalizes production and

dissemination of technology designed to circumvent measures that control access to copyrighted works. It also criminalizes the circumvention of such controls even if no copyright infringement occurred. (There are exemptions.)

It limits liability of on-line providers for copyright infringement by their users.

Copyright Exemption under the Digital Millennium Copyright Act (DMCA)

In July 2010 the Librarian of Congress identified six classes of works that are exempt from the DMCA prohibition against circumvention of content scrambling systems designed to control access to copyrighted works. Under the DMCA, these exemptions are revised every three years. One of the new exemptions impacts higher education.

The full statement published by the Library of Congress can be found at: http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html

DVD Copyright Exemption under the Digital Millennium Copyright Act

“(1)  Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:(i) Educational uses by college and university professors and by college and university film and media studies students;(ii) Documentary filmmaking;(iii) Noncommercial videos”

Miscellaneous

Clemson Library E-Reserves

This is a great resource for print materials that you want to make available to your students on Blackboard.

The library will obtain and pay for permission for the use up to $200 per publication.

http://www.clemson.edu/library/services/reserves/index.html

Damages for Copyright Infringement

1. The owner can recover actual damages.2. In some cases the owner can recover statutory

damages. Between $750 and $30,000 per infringement For willful infringement the award can be

increased to up to $150,000 per infringement However, the court shall remit (cancel) statutory

damages if the infringer had reasonable grounds to believe the use of the work was a fair use and the infringer is an employee of a nonprofit educational institution. In this case the copyright owner could only recover actual damages.

Copyright Infringement vs. Plagiarism

Violation of federal law subjects you to legal penalties.

To avoid - need to either fall within an exception to copyright protection or obtain permission from the copyright owner.

Violation of university policy and professional standards.

To avoid – need to properly cite sources and not present another person’s work as your own.

Copyright Infringement

Plagiarism

Questions

Questions

Is it always a fair use if I am copying something for an educational purpose?No. Just because it is an educational use, does not mean it is a fair use. The fair use factors should be considered on a case by case basis.

Can I give my students each a copy of a journal article?See slides on multiple copies for classroom use. If these do not apply, evaluate fair use factors. Consider E-reserves.

Can I give my students copies of portions of a textbook?See slides on multiple copies for classroom use. If these do not apply, evaluate fair use factors. Since the market for the textbook could be impacted by this use, this may not be a fair use. The more you use, the less likely it is a fair use. Consider E-reserves.

Questions

Can I put a digital copy of an article on Blackboard for my students?Possibly, need to evaluate fair use factors. However, for a digital article you should restrict access to only those students in the course and limit the duration of the article’s availability. Consider E-Reserves.

Can I show an entire movie in my classroom?Yes under17 USC section 110 this type of use is allowed in face-to-face instructional settings.

Can I show photographs or play music for my students in my classroom?Yes under17 USC section 110 this type of use is allowed in face-to-face instructional settings.

Questions

My department owns some VHS tapes that are projected in the classroom, but we would like to convert them to DVD. Is this okay?I do not believe this would be a fair use. If the VHS is available on DVD, you would need to purchase the DVD.

If something is freely available online does that mean it is not copyright protected?No. Since copyright protection is automatic, I would assume it is protected until you determine otherwise (Federal Government publication, copyright protection has lapsed and in public domain etc.)

Questions

Can I quote portions of a book, poem or song in a published work of my own?Possibly. Reproducing portions of copyrighted works for comment or criticism is often allowed under fair use. However, you should conduct the fair use analysis for each excerpt you quote.

Sources

7 United States Code sections 101 et seq. Association of American Universities, “Campus Copyright

Rights and Responsibilities, a Basic Guide to Policy Considerations,” (Association of American Universities, Association of American University Presses, Association of Research Libraries, Association of American Publishers, 2005)

Harper, Georgia K., Copyright Law and Policy in a Networked World, Washington DC, National Association of College and University Attorneys, 2007, pages 3-82 and 593-668.

LaTourette, Audrey W., “Copyright Implications for Online Distance education,” Journal of College and University Law (Vol. 32, No.3 2006)

Sources continued

Library of Congress Copyright Office, Circular 2, Copyright Basics (Washington D.C. Library of Congress 2008)http://www.copyright.gov/circs/circ1.pdf

Library of Congress Copyright Office, Circular 15A, Duration of Copyright (Washington D.C. Library of Congress August 2010)

http://www.copyright.gov/circs/circ15a.pdf

Online Resources

Clemson University Copyright LibGuide

http://clemson.libguides.com/content.php?pid=84458&sid=627487

Copyright Duration Sliderhttp://librarycopyright.net/digitalslider/

Cornell University “Copyright Term and the Public Domain in the United States”, January 1, 2010

http://copyright.cornell.edu/resources/publicdomain.cfm “Know Your Copy Rights”, Association of Research Libraries

http://www.knowyourcopyrights.org/bm~doc/kycrbrochurebw.pdf

Clemson University’s Intellectual Property policy

http://www.clemson.edu/research/technology/policies/patents.html

Online Resources continued

Clemson University Library Copyright Tutorial

http://www.lib.clemson.edu/copyright/index.htm

Clemson University Library Plagiarism Tutorialhttp://www.clemson.edu/culib/Plagiarism/

United States Copyright Office “Report on Orphan Works, A Report of the Register of Copyrights”, Washington DC 2006

http://www.copyright.gov/orphan/orphan-report-full.pdf