A Prescriptive Guide to Copyright and Fair Use

Guidelines

Thomas Bremer, NDSU

Rhonda Ficek, MSUM

Theresa Semmens, NDSU

Seminar Overview

Thomas Bremer – The Copyright Law Defined

Rhonda Ficek – The TEACH Act and Fair Use Guidelines

Theresa Semmens – What is the DMCA and how does it work in academia?

Copyright Definition (noun)

"the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)"

Merriam-Webster's collegiate dictionary. -- 10th ed.-- Springfield, Mass. : Merriam-Webster, Inc., c2003.

What Copyright Isn’t?

• Trademarks

• Patents

• Copyrights

all are "intellectual property"

but each covered by own laws

Why Is It Important?

• Copyright allows writers, artists, architects, computer programmers, musicians, choreographers, etc. to profit from their work.

• Without it, less incentive to produce creative works

Why Is It Important?

Severe Penalities for Copyright Infringement

• Owners may recover actual damages

• Statuatory Damages

• Criminal Penalities

A Short History Lesson . . .

• 1430s Johann Gutenberg invents printing press

• 1556 “Worshipful Company of Stationers and Newspaper Makers” receives Royal Charter– monopoly over the publishing industry

• 1710 Statute of Anne (Copyright Act 1709)– authors rather than printers now have rights

Copyright Origins: US Law

US Constitution - Article I Section 8:

"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;"

U.S. Law

• Congress passed the first law in 1790; others followed 1831, 1870, 1909

• In 1976 Congress passed a major revision

• Significant amendments and modifications since then (DMCA, TEACH Act)

• All laws codified in Title 17 of the United States Code (290 pages)

International Law

Copyright also impacted by various Treaties

• Universal Copyright Convention (1954)

• Berne Convention (1988)

• Uruguay Round Agreements Act (URAA)

What Is Copyright?

"… a form of protection provided by the laws of the United States to the authors of 'original works of authorship', including literary, dramatic, musical, artistic, and certain other intellectual works."

{U.S. Copyright Office, Circular 1}

Generally Gives the Owner of Copyright the Exclusive Right to Do, and to Authorize Others to Do, the Following:

• To reproduce the work• To prepare derivative works based upon the work• To distribute copies of the work to the public by sale or

other transfer of ownership, or by rental, lease, or lending

• To perform the work publicly• To display the work publicly• In the case of sound recordings, to perform the work

publicly by means of a digital audio transmission.

What Works Are Protected?

Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.

[17 USC 102(a)]

What Works Are Protected?1. literary works

2. musical works, including any accompanying words

3. dramatic works, including accompanying music

4. pantomimes and choreographic works

5. pictorial, graphic, and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings

8. architectural works

What Is Not 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 Is Not Protected by Copyright? (Continued)

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 Is Not Protected by Copyright? (Continued)

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

What Is Not Protected by Copyright? (Continued)

Works consisting entirely of information that is common property and containing no original authorship (e.g., standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Who Can Claim Copyright?

• Author, co-author(s) - The artist, writer, programmer, architect, musician, choreographer who created the copyrighted work

Who owns copyright? (Continued)

• Work for hire - Employer or other person for whom the work was prepared is considered the author (unless the parties have expressly agreed otherwise). An employer who hires employees who create copyrighted works as part of their job

How to Secure a Copyright

Frequently misunderstood; now:

• When the work is created

• No Longer Necessary:– Publication – Registration– Notice of Copyright, (i.e., © )

How to Secure a Copyright

Copyright is secured automatically when the work is created (i.e., when it is fixed in a copy for the first time).

Registration

No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, registration offers definite advantages:

• Establishes a public record of copyright

Registration

• Required before filing a claim

• With registration before infringement, creators can seek statutory damages ($750-$30,000) and attorneys’ fees and statutory damages can be enhanced up to $150,000 if the infringement was willful.

Publication

• No longer the key to obtaining federal copyright as it was under the Copyright Act of 1909.

• However, publication remains important to copyright owners. Publication is an important concept in the copyright law for several reasons:

Publication – Still Important• mandatory deposit with the Library of Congress. • can affect the limitations on the exclusive rights of the copyright

owner• may determine the duration of copyright protection for anonymous

and pseudonymous works (when the author's identity is not revealed in the records of the Copyright Office) and for works made for hire.

• Deposit requirements for registration of published works differ from those for registration of unpublished works.

• When a work is published, it may bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. Copies of works published before March 1, 1989, must bear the notice or risk loss of copyright protection.

Notice of Copyright ©

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.

Notice of Copyright © (Cont.)

Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989.

Notice of Copyright © (Cont.)

• Use of the notice informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication.

• If a work is infringed defendants cannot base defense on innocent infringement. [Innocent infringement occurs when the infringer did not realize that the work was protected.]

Form of Notice

1. The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and

2. The year of first publication of the work.

3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: © 2006 John Doe

Users Need Permission To:

• Reproduce• Adapt• Distribute

• Publicly perform• Publicly display• Transmit audio sound

recordings

Unless the work or use falls under one of the Copyright exceptions or limitations

Copyright Exceptions & Limitations

• First Sale• Libraries & Archives • Duration of Copyright - Public Domain • Fair Use• Face-to-Face Instruction• Distance Education

First Sale Doctrine

• Allows the owner of a lawfully made copy to transfer ownership (by sale, gift, loan, rental, etc.) of his/her lawful copy without copyright owners permission.

Libraries & Archives

17 USC 108 exemptions:

• Copying for library users– “Single copies” for user’s private study– Interlibrary Loan (CONTU Guidelines)

• Copying for the library’s collection– Up to 3 copies for preservation or

replacement

Duration of Copyright

• First laws fixed at 14 years• 1909 law increased to 28 years, with 28

year renewal possible• Now a very long time

Works Originally Created on or after January 1, 1978

• Single author: life plus an additional 70 years after the author’s death.

• Joint author(s): 70 years after the last surviving author’s death.

• Works made for hire: 95 years from publication or 120 years from creation, whichever is shorter.

Works Prior to 1978• Under the 1909 law copyright was secured either on the date a work

was published with a copyright notice or on the date of registration if the work was registered in unpublished form.

• copyright endured for a first term of 28 years• During the last (28th) year of the first term, copyright eligible for

renewal. • The Copyright Act of 1976 extended the renewal term from 28 to 47

years for copyrights in effect in 1978 making these works eligible for a total term of protection of 75 years.

• Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years

Works Published 1923 - 1963

• 28 years after date of first publication with © notice, plus 67 years if renewed

Works Published 1964 - 1977

• 95 years after date of first publication with © notice

Works Created before 1978, But Not Published or Registered

These works have been automatically brought under the statute and are now given federal copyright protection and computes the same way as works created on or after1978: the author’s life-plus-70 or 95/120-year term – or through 2002,

Works Created before 1978, published before 2003

Protected for the author’s life-plus-70 or through 2047, whichever is greater.

Works Published before 1923,

In the Public Domain

Public Domain

• Everything published before 1923 is in the public domain.

• Works not renewed and fallen out of copyright.

• Works by the U. S. government are not eligible for U. S. copyright protection.

• Authors can choose to put work in the public domain by including a notice that the item is in the public domain.

Avoid Problems

• Find out who owns rights before using– US Copyright Office <www.copyright.gov>– Copyright Clearance Center

<www.copyright.com>

• If in doubt, get written permission, pay fees.

Copyright Exceptions & Limitations

• First Sale

• Libraries & Archives

• Duration of Copyright - Public Domain

• Fair Use

• Face-to-Face Instruction

• Distance Education