© Copyright

Concepts & Misconceptions

Duane Harbin15 November 2002

© 2002, Duane Harbin

URL for this presentation:

http://people.smu.edu/dharbin/

Scope Notes: Repeat after me:

“Duane is not a lawyer and cannot give me legal advice.”

United States only Selective, not comprehensive

Why are we talking about copyright? Valuable corporate property may

soon enter the public domain Changes in technology have upset

the balance between the cost of compliance and the ease and quality of copying

The existing conventions of copyright do not fit new media

What exactly is copyright? Legal protection for authors of

original works, reserving their rights to: To reproduce the work To prepare derivative works To distribute the work To perform the work publicly To display the work publicly

What governs copyright? The Constitution Federal Statutes & Regulations Case Law International Treaties BUT NOT

Conventions & Guidelines

The Constitution Article 1, Section 8:

“The Congress shall have power… 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.”

Federal Statutes & Regulations U.S. Copyright Act of 1976 (Title 17) Sonny Bono Copyright Term

Extension Act of1998 Digital Millennium Copyright Act of

1998 Technology, Education and Copyright

Harmonization (TEACH) Act of 2002

International Treaties Berne Convention: as of 1988 World Intellectual Property

Organization (WIPO) Treaty: 1996

Conventions & Guidelines National Commission on New

Technological Uses of Copyrighted Works (CONTU): 1976

Conference on Fair Use (CONFU): sponsored by the Working Group on Intellectual Property Rights: 1994

How long does copyright last? Steamboat Willy – 1928

How long does copyright last? For works created after January 1, 1978,

copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author’s death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first;

How long does copyright last? For works created but not published or

registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047;

How long does copyright last? For pre-1978 works still in their original

or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured.

Case Law 2002: Eldred v. Ashcroft

What can be protected by copyright? “Original works of authorship” that are

fixed in a tangible form of expression, including the following categories: Literary works; Musical works, including any

accompanying words Dramatic works, including any

accompanying music Pantomimes and choreographic works

What can be protected by copyright?

Pictorial, graphic, and sculptural works

Motion pictures and other audiovisual works

Sound recordings Architectural works

What cannot be protected by copyright? Works that have not been fixed in

a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

What cannot be protected by copyright? Titles, names, short phrases, and

slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

What cannot be protected by copyright? Ideas, procedures, methods,

systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

What cannot be protected by copyright? Works consisting entirely of

information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Case Law 1991: Feist Publications v. Rural

Telephone Service Company, Inc.

What is “Fair Use?” Certain use of copyrighted material

without the permission of the copyright owner is not infringement. Such use is known as “Fair Use”

Under §107 of Title 17, Fair Use includes criticism, comment, and news reporting

What is “Fair Use?” §107 of Title 17 stipulates four factors to

consider in determining Fair Use: The purpose and character of the use,

including whether such use is of a commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work; The amount and substantiality of the portion

used in relation to the copyrighted work as a whole; and

The effect of the use upon the potential market for or value of the copyrighted work.

Case Law 1991: Basic Book, Inc. v. Kinko’s

Graphics Corp. – 1991 1992-1995: American Geophysical

Union v. Texaco 1993: Playboy Enterprises, Inc. v.

Frena 1994: Campbell v. Acuff-Rose

Music, Inc.

Statutory Exceptions for Education §107 of Title 17 specifically describes as

Fair Use (subject to the four factors): Teaching (including multiple copies for

classroom use Scholarship Research

§110(1) exempts performances for face-to-face teaching in non-profit educational institutions

Statutory Exceptions for Education: The TEACH Act §110(2) now allows:

Transmitting a performance of all of a non-dramatic literary or musical work

Transmitting reasonable and limited portions of any other performance

Transmitting displays of any work in amounts comparable to typical face-to-face displays

Statutory Exceptions for Education: The TEACH Act Exceptions:

Applies only to accredited, nonprofit, educational institutions

Does not apply to works produced or marketed primarily for in-class use in digital distance education

Does not apply to materials made or acquired unlawfully

Statutory Exceptions for Education: The TEACH Act Exceptions:

Does not apply to textbooks or coursepacks students would typically purchase

Covers only works an instructor shows or plays during class; NOT to out of class assignments

Statutory Exceptions for Education: The TEACH Act CONDITIONS: The performance or

display must be … A regular part of systematic mediated

instructional activity Made by, at the direction of, or under the

supervision of the instructor Directly related and of material assistance

to the teaching content For and technologically limited to the

students enrolled in the class

Statutory Exceptions for Education: The TEACH Act CONDITIONS:The institution must …

Maintain policies and provide information on the use of copyrighted material and give notice that material may be copyrighted.

Apply technology that reasonably prevents students from retaining and further distributing material beyond the class session

Not interfere with technological measures applied by copyright owners to prevent retention and distribution

Statutory Exceptions for Education: The TEACH Act §112(f) permits instructors to copy

digital works and digitize analog works if … Copies are retained only by the institution

and used only for the activities authorized by §110

Analog works may be digitized only if no digital version is available free of technological protections that would prevent uses authorized under §110

Resources on the TEACH Act http://www.utsystem.edu/ogc/

intellectualproperty.htm http://www.educause.edu/ir/library/

pdf/ERM01610.pdf http://www.ala.org/washoff/

teach.html

Statutory Exceptions for Libraries §108 of Title 17 allows libraries and

archives to make individual copies of print works for users, interlibrary loan, preservation, and replacement, PROVIDED … The copy is not for commercial use Collections are open to the public or

available to researchers The copy includes notice of copyright

Statutory Exceptions for Libraries §108 limitations for PRESERVATION

Item must be from the library or archive’s collections

Digital copies may NOT be made accessible outside the library

Statutory Exceptions for Libraries §108 limitations for REPLACEMENT

A suitable replacement cannot be located at a fair price with reasonable effort

Digital copies may NOT be made accessible outside the library

Statutory Exceptions for Libraries §108 limitations for USER

REQUESTS & INTERLIBRARY LOAN Copies are limited to a single article

or “small part” of a copyrighted work Copies become the property of the

requester Copies must display copyright notice

Statutory Exceptions for Libraries §108 limitations for USER

REQUESTS & INTERLIBRARY LOAN Copies of complete works or

substantial portions are permitted IF after reasonable investigation, the library determines that a copy is NOT available at a fair market price

Statutory Exceptions for Libraries §108 limitations for USER

REQUESTS & INTERLIBRARY LOAN Libraries are not liable for copyright

infringement if public reproduction equipment bears a copyright warning

This does not exempt individual library clients from liability for copyright infringement

Statutory Exceptions for Libraries Other provisions of §108

Libraries may not engage in “systematic reproduction” nor fulfill requests they have cause to believe will result in systematic reproduction of copyrighted works

Libraries may not engage in copying as a means of avoiding subscribing to or purchasing copyrighted materials

Statutory Exceptions for Libraries Other provisions of §108

The “Final 20 years” For purposes of preservation and

replacement, §108 also applies to musical, graphic, or audiovisual works

Digital Millennium Copyright Act New §1201 of Title 17 divides

technological means into two categories: Those that prevent unauthorized

access to copyrighted material Those that prevent unauthorized

copying of copyrighted material Only access is prohibited to protect

Fair Use

Digital Millennium Copyright Act §1201 prohibits making or selling

devices or services for either type of circumvention if: They are primarily designed or produced to

circumvent They have limited commercial purpose or

use other than circumvention They are marketed for use in circumvention BUT manufacturers are not required to

actively implement any counter measures (except Macrovision)

Digital Millennium Copyright Act §1201 explicitly does NOT …

Affect the rights, remedies, limitations, or defenses to infringement, including Fair Use

Enlarge or diminish vicarious or contributory copyright infringement

Digital Millennium Copyright Act Exceptions to §1201:

Good faith determination to obtain access for nonprofit libraries, archives, and educational institutions

Reverse engineering for interoperability Encryption research Protection of minors Personal privacy Security testing

Digital Millennium Copyright Act §1202 of Title 17 protects

Copyright Management Information (CMI), specifically prohibiting: Removing, altering or falsifying CMI Knowingly distributing material with

false or altered CMI

… with intent to induce, enable, facilitate or conceal infringement

Digital Millennium Copyright Act §1204 makes violation of §1201 or

§1202 a criminal offense Nonprofit libraries, archives and

educational institutions are entirely exempted from criminal liability

Digital Millennium Copyright Act New §512 provides new limits to

liability for online service providers, including nonprofit educational institutions for: Transitory communications System caching Storage of information at the direction of

users Information location tools (e.g.

hyperlinks, search engines, etc.)

Digital Millennium Copyright Act In addition, §512(e) exempts nonprofit

educational institutions of liability for infringement by faculty or graduate students performing a teaching or research function if: Infringing activities do not provide access to

course materials required or recommended in the past three years

The institution has not received more than two notifications of the infringement in three years

The institution provides all users with information describing and promoting copyright compliance

Copyright & Contract/License Rights reserved to the copyright

owner may be assigned by contract.

Rights not covered by the contract are not affected by the contact.

BUT you do not necessarily need to hold copyright to something to sell it under license.

Copyright Law vs. Contract Law

Copyright is controlled by federal & international law

Contract law is controlled by local jurisdictions

Contracts must be negotiable

Fair Use in the Digital Age?: DigitalConsumer.org’s BILL OF RIGHTS

1. Users have the right to "time-shift" content that they have legally acquired. This gives you the right to record

video or audio for later viewing or listening. For example, you can use a VCR to record a TV show and play it back later.

Fair Use in the Digital Age?:BILL OF RIGHTS (continued)

2. Users have the right to "space-shift" content that they have legally acquired. This gives you the right to use your

content in different places (as long as each use is personal and non-commercial). For example, you can copy a CD to a portable music player so that you can listen to the songs while you're jogging.

Fair Use in the Digital Age?:BILL OF RIGHTS (continued)

3. Users have the right to make backup copies of their content. This gives you the right to make

archival copies to be used in the event that your original copies are destroyed.

Fair Use in the Digital Age?:BILL OF RIGHTS (continued)

4. Users have the right to use legally acquired content on the platform of their choice. This gives you the right to listen to

music on your Rio, to watch TV on your iMac, and to view DVDs on your Linux computer

Fair Use in the Digital Age:BILL OF RIGHTS (continued)

5. Users have the right to translate legally acquired content into comparable formats. This gives you the right to modify

content in order to make it more usable. For example, a blind person can modify an electronic book so that the content can be read out loud.

Fair Use in the Digital Age?BILL OF RIGHTS (continued)

6. Users have the right to use technology in order to achieve the rights previously mentioned. This last right guarantees your ability to

exercise your other rights. Certain recent copyright laws have paradoxical loopholes that claim to grant certain rights but then criminalize all technologies that could allow you to exercise those rights. In contrast, this Bill of Rights states that no technological barriers can deprive you of your other fair use rights.