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DISCLAIMERThis presentation is not legal
advice. Any and all comments or interpretations pertaining to the law made during this presentation are in
no way legally binding.
© Janet Tillman/The Master’s College, 2004-2008, permission is granted for non-profit educational use; any reproduction or modification should include this statement.
Attribution
FRIDGE, PiCLE and PNAM mnemonics as well as the flowchart are used by permission from Mary Minow, JD Policy Analyst for the California Association of Library Trustees and Commissioners http://www.librarylaw.com/
Intellectual Property
Copyright PatentTrademark Trade Secret
Important for Educators and creators of Web pages
Copyrightable Works
Literary works – not limited to literature
Musical works Dramatic works Pantomimes and choreographic works Pictorial, graphic, sculptural works Motion pictures and other audiovisual
works Sound recordings Architectural works
What it is
Copyright protects the EXPRESSION of an idea
The work must be in a fixed tangible medium
The work must have a modicum of originality
The work must have at least a minimal level of intellectual creativity
What it is not
Facts, Ideas and slogans cannot be copyrighted
Extemporaneous speeches, live sermons, lectures, performances, etc. cannot be copyrighted
Quality, aesthetics, effort or similarity to other works are irrelevant
Owner’s Exclusive Rights
Duplication (Reproduction)
Distribution
Derivation (Adaptation)
Display
Public Performance
Exceptions to the Rule
Fair Use U.S. Code, Title 17, Sec. 107 http://www.copyright.gov/title17/92chap
1.html#107
Face to Face Teaching and the TEACH Act U.S. Code, Title 17, Sec.110 http://www.copyright.gov/title17/92chap
1.html#110 VERY Important for DEEP professors!!
When is it OK to copy someone else’s work?
Public Domain?
Yes
No
Fair Use?
Weigh the PNAMNo
Get Permission
Maybe Maybe not
Use
Unless it’s in the PiCLE jar
if it’s in the FRIDGE
Public Domain = in theFRIDGE
Facts
Recipes
Ideas
Dedicated works
Government works (U.S.)
Expired Works
Fair Use Factors urpose and Character of the use
of the work being copied
ature of the work
mount and substantiality of the portion being used in relation to the whole
arket effect
P
N
A
M
Purpose Commercial
activity Profiting from
use Bad faith
behavior Entertainment Denying credit
to original author
Nonprofit Educational
Teaching Research Scholarship Criticism Comment Transformative Parody News reporting Restricted access
Oppose
Favor
Nature
CreativeFictionalUnpublished
Factual/nonfictional
Important to favored educational objectives
Published work
Oppose
Favor
Amount Substantial in
proportion to the whole
Central to or “heart of the work”
Small quantity Portion is not
central or significant to entire work
Amount is appropriate for educational purpose
Oppose
Favor
Market effect Could replace sales Hurts the current
market or the potential market
Reasonable available licensing mechanism
Affordable permission available
Numerous copies made
Made accessible on Web
Repeated or long-term use
User owns legal copy
One or few copies made
Does not significantly hurt the market or the potential market
No similar product
No licensing
OpposeFavor
Does Fair use Apply?OpposeFavor
Creative
Central to or “heart of the work”
Could replace sales
Non-profit EducationalTeachingCommentRestricted accessImportant to favored
educational objectivesPublished workSmall quantityAmount is appropriate for
educational purposeDoes not significantly hurt the
market
P + N + A + M = Is It Fair Use?
Ø_$_
$$ $
Favorable
Unfavorable
Unfavorable w/ “good faith effort”
In Good Faith
Risk ToleranceNo guarantees, but…
Owners look for deep pockets
Registered copyright owner gets more money
Librarians and non-profit educational institutions might pay $0 damages, if “good faith analysis” can be documented.
When Fair Use Does NOT Apply
Get Permission E-mail Webmaster Copyright Owner Get in writing/keep on file
Good Faith effort If unable to locate owner make disclaimer “I’ll
remove this (from the Web) if you want”
Copyright Police are out there Lawyers for the owners Disgruntled constituents, employees
Getting Permission: How to find copyright owners
Harry Ransom Humanities Research Center – Univ. Texas Austin http://www.hrc.utexas.edu/index.html
Copyright Clearinghouse http://www.copyright.com/
Getting Permission
Sample Permission Letters http://www.librarylaw.com/perm.htm
Copyright Crash Course-Permissions http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm Great site that lists all the major rights
collectives plus logistics, best efforts etc. in requesting permissions
What about all those Guidelines?
Abiding by guidelines cannot protect you from law suits nor guarantee a favorable outcome.
Guidelines often restrict fair use more than the copyright law allows
Many are inappropriate for higher education
Guidelines are not law
Guidelines have no force or effect of law; none have been enacted into law by Congress; none have been adopted as a binding standard of fair use in any court decision.
However, they are considered a “safe harbor” and demonstrate “good faith effort”
Tests of Guidelines
Brevity Spontaneity Cumulative Effect Each copy must contain a notice of
copyright
Myths about copyright
If I give credit to the owner it’s OK to use it.
If it doesn’t have a copyright notice, it’s not copyrighted.
If I don’t charge for it, it’s not a violation
It’s not a felony and I have my rights!
If it’s on the Internet, it’s public domain
What about the Web?
Affected by Copyright and Trademark Law
Law lags behind technology
Fair use is flexible
Very little case law related to the Internet and none about Fair Use or Ed’l Purposes
Extrapolate and make your best guess
Extrapolate and Apply PNAM
Purpose: Limiting access to your students only or
by password can demonstrate educational purpose.
Nature: Use nonfiction, scientific over fiction or
motion pictures
Extrapolate and Apply PNAM
Amount: The shorter the better Use only what is appropriate for the
educational purpose
Market effect: Reduce it by limiting who has access to
the system Limit to one semester Use only news or academic works Use materials not easily available to
purchase
Help your students
Place a notice: “These materials are made available at this site for the educational purposes of students enrolled in my class at The Master’s College. The materials are subject to U.S. Copyright law and are not for further reproduction or transmission.”
Ask your students to respect the law or risk losing the opportunities for creative teaching in the future.
Register with Copyright Office
Copyright protection is instantaneous
Registration not required but strongly recommended
International Copyrights protected by Berne Convention and GATT treaty.“All Rights Reserved”
Copyright notice is no longer necessary but it is recommended
Proper form for notice: “Copyright [date] by [author/owner]” or “© [date] by [author/owner]”“[date] by [author/owner]” (phonorecords)
Notice should be Noticeable
Copyright Notice
Other Copyright Tutorials
NCSU Copyright Tutorial: http://www.lib.ncsu.edu/scc/tutorial/main.html
Crash Course in Copyright: http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm
Other Copyright Tutorials
Copyright Primer: http://www.umuc.edu/cgi-bin/cgiwrap/primer/primerwrap.cgi/enter.php#
CopyOwn-Tutorial: http://www.inform.umd.edu/copyown/tutorial/
Helpful Web Sites
Nolo: Law for All http://www.nolo.com/lawcenter/ency Trademarks & Copyright Rules for Webmasters
Library of Congress Copyright Office http://lcweb.loc.gov/copyright/
TEACH Act: http://www.copyright.gov/legislation/pl107-273.html#13301
Helpful Web Sites
Digital Millenium Copyright Act (DMCA): http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_bills&docid=f:h2281enr.txt.pdf
DMCA Summary: http://www.loc.gov/copyright/legislation/dmca.pdf
Helpful Web Sites
Copyright Management Center: http://copyright.iupui.edu/
Stanford University Libraries Copyright and Fair Use: http://fairuse.stanford.edu/
UCLA Cyberspace: http://www.gseis.ucla.edu/iclp/dmca1.htm
Helpful Web Sites
CETUS: Fair Use of Copyrighted Works: http://www.cetus.org/fairindex.html
What Every Teacher Should Know about copyright: http://www.2learn.ca/copyright/locate
Helpful Web Sites
LibraryLaw.com (http://www.librarylaw.com) Links to the best copyright sites for libraries, as well as other library law sites and articles.
Fair Use Harbor in Copyright Bay (http://www.stfrancis.edu/cid/copyrightbay/fairuse.htm) A game for teachers
Copyright Registration for Online Works (http://http://www.copyright.gov/circs/circ66.pdf) The Copyright Office website gives instructions on registering web pages in its Circular 66: Copyright Registration for Online Works.