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1 COPYRIGHT IN THE DIGITAL AGE: Issues for Faculty Members.

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1 1 COPYRIGHT IN THE DIGITAL AGE: Issues for Faculty Members

2 2 What is copyright? A form of protection provided by federal law to the author of an original work fixed in any tangible medium of expression through which the work can be perceived or communicated. 17 U.S.C. Sec. 102

3 3 But, not just any work of authorship... Original – Facts aren’t protected. Factual compilations may be if there is originality in selection, coordination or arrangement of data. Fixed in a Tangible Medium of Expression – e.g., improvisational speech, a musical composition or dance choreography is not protected until written down, notated, recorded, etc.

4 4 Sec. 102(a) Categories of Works of Authorship Literary works (includes computer programs) Dramatic works Pictoral, graphic & sculptural works Motion pictures & other audio visual works Musical works Pantomime & choreographic works Sound recordings Architectural works

5 5 What isn’t covered by copyright? Facts Discoveries and ideas Works in the public domain U.S. Government works

6 6 Who owns the copyright? Typically the creator of the work Student work belongs to the student – you should not use it without permission Copyright can be jointly owned if there are multiple authors Work-for-Hire exceptions (and CUNY exceptions to the exception) Collective Work: copyright in collective work is separate from that in the individual contributions

7 7 Joint Ownership – Any Joint Creator can... Modify, reproduce and distribute copies of the entire work Grant a non-exclusive license to others without the consent of the other co-creators (but must share the profits) Transfer his/her interest to another without the consent of the other co-creators TAKE AWAY: Enter into a written agreement with your co-authors

8 8 Work-For-Hire (Sec. 101) A contribution to a collective work Part of a motion picture or other audio visual work A translation A supplementary work An instructional text A test Test answer material An atlas Sound recording A compilation Work prepared by an employee within the scope of employment OR work that has been specifically ordered or commissioned for use as:

9 9 What are the copyright owner’s exclusive rights? Reproduce in copies or phonorecords Prepare derivative works Distribute copies or phonorecords Perform publicly. In the case of Sound Recordings, this right is limited to performing publicly by digital audio transmission (webcasting) Display publicly

10 10 When does copyright protection attach to a work? Immediately, automatically, upon fixation in a tangible medium of express Registration with the Copyright Office is voluntary, but gives owners the right to statutory damages and attorneys fees Use of a copyright notice is voluntary, but generally forecloses a defense of innocent infringement

11 11 How long does copyright last ? (U.S. Law) Works published before 1923 are in the public domain. Works created on or after January 1, 1978 are protected from the date when fixed for a term of life of the author plus 70 years (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.) See chart prepared by Peter B. Hirtle, Cornell University (

12 12 Copyright Infringement Any exercise of a copyright owner’s exclusive rights without the permission of the owner

13 13 Penalties and Remedies Federal courts may: Issue an injunction Impound and destroy infringing articles Award actual damages and lost profits proven by plaintiff Impose criminal penalties for willful infringement In the case of registered works, award attorneys fees and costs. The copyright owner may also elect to receive statutory damages of between $750-$30,000 for any one work, and up to $150,000 in case of willful infringement.

14 14 Innocent Infringer Rules Sec. 504(c)(2) Court may reduce statutory damages to as little as $200 if infringer was unaware and had no reason to believe that use was an infringement. Court shall remit statutory damages if the infringer thought that use of copyrighted material was a fair use AND the infringer was an employee of a nonprofit educational institution acting within the scope of employment.

15 15 Limitations on Exclusive Rights Sec Focus on two: Certain performances and displays for educational purposes (Sec. 110) Fair Use (Sec. 107)

16 16 Use in Face-to-Face Teaching Sec. 110(1) Who: teachers and students at nonprofit educational institutions What: perform or display copyrighted works, including showing lawfully made copies of movies and videos, playing music, performing plays, showing art works, etc. in the course of face-to-face teaching Excludes: photocopying of materials for classroom use, making course packs, on-line uses, and any other reproduction, distribution or making of derivative works

17 17 Transmission of Certain Works Sec. 110(2) [TEACH Act] Who:Accredited nonprofit educational institutions What:Teachers and students may transmit (e.g., via the internet): the performance of ALL of a non-dramatic literary or musical work (poetry & short story readings [audio only], all music other than opera, musicals and music videos) REASONABLE AND LIMITED PORTIONS of any other performance (includes all audiovisual works, plays, opera, musicals and other dramatic musical works) displays of any work in AMOUNTS COMPARABLE TO TYPICAL FACE-TO-FACE displays (includes photographs and other still images)

18 18 Excludes: works produced or marketed primarily for use as mediated instructional activities transmitted via digital networks works the instructor knows or has reason to believe were not lawfully made or acquired textbooks, course packs and other materials in any media typically purchased by students for their independent use

19 19 Additional Conditions: The performance or display must be: A regular part of a 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; and For and technologically limited to students enrolled in the class.

20 20 Additional Conditions: CUNY must: Have policies and provide information to the CUNY community about copyright; Give notice that the materials used in the course may be protected by copyright; Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session (not defined in the law) and further distributing them. In general, this means that controls must be in place so that a student can’t maintain a copy of the work after logging out. The student may return to the work repeatedly during the course, but can’t back up or store the work outside of the course. Not interfere with technological measures taken by copyright owners that prevent retention and distribution (but see new rule re hacking film clips).

21 21 Digitizing Works TEACH permits digitizing analog works under these conditions: The copies are kept only by the institution and used only for the activities authorized by Section 110(2) ; and The work is not available in a digital version that is free from technological protection. Example: Section 110(2) authorizes the use of movie clips. If you can’t rip from a DVD, you can digitize the clip from an analog tape, but TEACH doesn’t permit you to digitize the entire tape.

22 22 TEACH ACT IN A NUTSHELL: The TEACH Act is intended to cover classroom-type instruction delivered on-line. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. For these uses, the instructor must look to the principles of fair use.

23 23 FAIR USE Sec. 107 “The fair use of 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.”

24 24 Fair Use Supplements TEACH Likely to be most useful in re supplemental teaching materials not covered by TEACH and materials for which it is difficult to get permission because no ready market or slow response times (i.e., movies and music)

25 Four Factor Test Not all educational uses are “fair use.” The Copyright Law lists four factors to be considered: The purpose and character of the use The nature of the copyrighted work The amount and substantiality of the portion of the work used The effect on the potential market for the work 25

26 Where the Courts are going... Is the use transformative? Does it use the copyrighted material for a broadly beneficial work different from that of the original intent? E.g, educational use of entertainment material Addresses first 2 factors (purpose & nature) Is an appropriate amount of the work being used, given the nature of the work and the use? Address the 3 rd factor (amount & substantiality) If answer to both is “yes”, courts today are likely to find use to be fair. 26

27 Georgia State Case Case is not precedent in New York Non-transformative “mirror” copying of factually-oriented educational texts 10% of text if not divided into chapters or has fewer than 10 chapters One chapter if text has 10 or more chapters 27

28 28 Journal & News Articles TEACH doesn’t really apply BEST: Link to an authorized copy, such as from a database licensed by CUNY Don’t pull text from a subscription website (WSJ) unless Terms of Use permit Do password protect Don’t use journal article repeatedly without permission – not transformative; generally OK w/news article so long as most appropriate, relevant and timely

29 29 Film Clips New rule allows college students and faculty members to break encryption on a DVD to incorporate short portions of films into new works for the purpose of criticism or comment, and where the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use Rule covers “motion pictures” – movies, TV, news, commercials, DVD extras, etc. Not an entire work “New work” could be podcast lecture with embedded clips, a DVD with clips for in-class lecture Unstated assumption that this is a “fair use”

30 30 Entire Films No consensus in university legal community TEACH refers to “reasonable & limited portions” – legislative history hints that entire film may be OK on rare occasions Some argue that if permissible to show in classroom, why isn’t it OK to stream if password protected. Courts aren’t there yet. Alternative: Make DVD or iTunes download part of reading list

31 31 Music TEACH permits use of complete non- dramatic works and clips of other musical works Clips usually acceptable under Fair Use; less clear with entire long works (operas) – see Entire Film; consider having students purchase work Background music for podcasts, etc.: may not be an educational or transformative use

32 32 Photographs & Images ARTstor or other CUNY-licensed databases If pulling from internet, make sure take from a legal source – look at website terms of use Consider images freely available for educational use from various image libraries TEACH permits “slide show” typical of Art History course in physical classroom, but doesn’t cover database of those images for “out-of-class” study Use of “thumbnails” for educational purposes generally considered by institutions to be a fair use VRA Fair Use Statement

33 33 Fair Use Good Practices Link to authorized sites and use freely available works where possible Own a legal copy or take from authorized sites Remember that website terms of use are contracts Use only as much as you need Include copyright information Password protect if possible Apply technological controls against downloading If you want to use repeatedly, get permission (unless use is transformative and is the most appropriate, relevant and timely material) Follow any College rules & guidelines Do the 4-factor analysis: can you justify the use?

34 34 Resources OGC Copyright Materials: materials.html materials.html CUNY Libraries CUNY: Visual Resources Association: Statement on Fair Use AU Center for Social Media Best Practices:

35 35 Jane E. Davis, Esq. Senior Counsel The City University of New York


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