Copyright and the Scholar

Ed Sperr

Copyright and Electronic Resources Officer

Founders Library

What we will talk about this afternoon

Why copyright? The Public domain Fair use Practical concerns (open access,

licensing, etc.) What we can use

Intellectual Property Rights

"...Like property in land, you can sell it, leave it to your heirs, donate it or lease it under any sorts of conditions […] Also, like property in land, copyrights can be subjected to certain kinds of public use that are considered to be in the public interest."

William Strong. The Copyright Book: A practical guide

“…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

Article 1, Section 8 – United States Constitution

The essential tension

Good to have a flourishing intellectual economy – more stuff is better Implies that restrictions are bad

Creators won't create new works unless they can make money from their creation Implies that restrictions are necessary

Copyright Timeline

1710 – Statute of Anne 1787 – Constitution adopted 1790 – Copyright act of 1790 – 14 year

protection (could be extended another 14 years)

1884 – Protection extended to Photographs 1909 – Major revision of the act – dramatic,

musical and other works now covered

Copyright Timeline

1971 – Musical recordings (not just scores) protected

1976 – Major revision of the act – protection extended for decades longer. Lots of holes filled in regarding coverage, terms, rights and responsibilities

1988 – US Joins up with Berne Convention 1998 – Sony Bono Copyright Term

Extension Act 1998 – DMCA signed into law

Copyrights protect…

Original expressions of intellectual effort

Keywords: Original Expressions Intellectual effort

Who gets the prize?

Under current law, Copyright in the work is born at the same time the work itself is

The Copyright initially belongs to the creator, with two big exceptions: "Work for Hire", or stuff done by an employee as

part of her job – copyright is owned by the employer

Work created by employees of the Federal Government –no copyright exists

What it all means

She who holds the copyright, makes the rules

Copyright owner has an effective monopoly on the work – only she can make money from it from selling copies, performing it publicly, creating derivative works, etc.

This awesome set of rights also comes with a few restrictions

Public domain works include…

Really old stuff Works where Copyright has lapsed or

expired Works that never fell under copyright

protection in the first place

Expiration into the Public Domain

NOT a linear process Status of an individual work affected by

many factors including: Age of the work Whether it was ever published Does it contain a copyright notice? Was the original copyright renewed?

How much does it help medical educators?

Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

TITLE 17 > CHAPTER 1 > § 107

What it means

Citizens (including educators and researchers) have a right to use portions of copyrighted works for certain purposes

This right is distinct from a license – there's no requirement for permission, payment, etc.

"What the heck constitutes fair use?" The devil is in the details

Fair use is usually ruled to be fair when…

It's for some (especially scholarly) non-commercial purpose

The work in question is more factual than expressive

It is transformative in some way It constitutes a relatively small portion of a

work It doesn't negatively impact the market for a

work

Reality of Copyright Law

"The Law" is a manifestation of Constitutional authority, codified by statute and interpreted by judges

It's not really "there" until cases get decided

The back and forth…

Guidelines for Classroom Copying Outgrowth of big copyright revision in 1976 -- publishers,

librarians and educators sat down in an ad hoc committee Rules represent a floor, not a ceiling

CONTU also appointed by Congress Hard bargaining between librarians and publishers --

begat the "Rule of Five" for ILL among other things CONFU was intended to pick up where CONTU left

off Process died in 1997, leaving behind a thick report and

some unofficial guidelines

For using materials in a lecture1. Items from which the materials are derived must be the

lawful property of the instructor, library or institution2. An attempt must be made to restrict copying of the

copyrighted material by students3. Materials should be used for no longer than two years

without obtaining a license to do so.4. Materials should fall under the following portion limitations:

10% or 1000 words (whichever is less) from a prose work 5 images from a single artist; 10% or 15 images (whichever is

less) from a collective work 10% or 3 minutes (whichever is less) from a film or video

5. Sources must be given proper credit and copyright notices must be displayed

For placing copies of items on Angel

1. Limit reserve materials to single articles or chapters; several charts, graphs or illustrations; or other

small parts of a work a small part of the materials required for the course copies of materials that a faculty member or the library already

possesses legally (i.e., by purchase, license, fair use, interlibrary loan, etc.).

2. Include any copyright notice on the original appropriate citations and attributions to the source a Section 108(f)(1) notice.

3. Limit access to students enrolled in the class and administrative staff as needed. Terminate access at the end of the class term.

4. Obtain permission for materials that will be used repeatedly by the same instructor for the same class.

For items copied for classroom use…1. Material must be a brief excerpt of a larger work-- no more

than: 250 words of a poem; one essay, story or article (under 2500 words) from an

anthology or journal; 10% or 1000 words (whichever is less) from a monograph; one illustration from a larger work.

2. Must be at the "instance and inspiration of the individual teacher". Also, there would not be enough time to gain permission to use the material in a timely manner.

3. Copying of an item must be for only that one course. 4. No more than one poem, article, etc. or two prose excerpts may

be copied from the same author (and no more than three from the same collective work or periodical volume) during one class term.

5. No more than nine instances of such copying per class per term. The same Items may not be copied term after term.

6. Copying should not include "consumables" such as workbooks, etc.

Getting Permission

Work covered by copyright? You can still get a license from the rights-holder

Contact your friendly neighborhood counsel for advice and take a look at other people's examples

Transferring Rights

Authors of books will assign some rights to their publisher (such as the right to print copies)

Free-lance writers and photographers will assign first-publication rights to a magazine, but explicitly retain other rights

Authors of scholarly articles will often sign over all rights (including the copyright itself) to the Journal publisher

Open Access Scholarly journals consist primarily of work that is

submitted, peer-reviewed and edited by volunteer labor Authors surrender their copyrights, and the publishers

turn around and resell this work for bajillions of dollars Open access advocates argue this is bad, particularly

as a lot of this work is originally funded with tax dollars NIH now has an “public access” mandate Is Copyright transfer necessary for scholarly publishing?

How much rent-seeking is too much?

Creative Commons Licenses

Attribution Non-commercial No Derivatives (by-nc-nd)

Attribution Non-commercial Share Alike (by-nc-sa)

Attribution Non-commercial (by-nc) Attribution No Derivatives (by-nd) Attribution Share Alike (by-sa) Attribution (by)

So What Can I Use Without Worrying?

Public Domain materials Materials that you (or the University)

have licensed Creative Commons stuff Open Access stuff

Any Questions?

Ed SperrCopyright and Electronic Resources Officer

esperr@sgu.edu