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Lucy Prashker, Cain Hibbard & Myers PC John Ellis, Executive Director of IT Services, The College of Saint Rose CAPTIAL AREA TECHNOLOGY ASSOCIATION April.

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Presentation on theme: "Lucy Prashker, Cain Hibbard & Myers PC John Ellis, Executive Director of IT Services, The College of Saint Rose CAPTIAL AREA TECHNOLOGY ASSOCIATION April."— Presentation transcript:

1 Lucy Prashker, Cain Hibbard & Myers PC John Ellis, Executive Director of IT Services, The College of Saint Rose CAPTIAL AREA TECHNOLOGY ASSOCIATION April 16, 2014 Copyright © 2014 Cain Hibbard & Myers PC Copyright Ownership, Fair Use, and Academic Freedom: Finding the Balance.

2 “Only one thing is impossible for God: To find any sense in any copyright law on the planet.” - Mark Twain

3 If you ask a lawyer a question about copyright, you likely will get one of two answers: Maybe or It depends

4 Copyrights Original expression of an idea fixed in any tangible medium of expression  Examples: book, play, painting, sculpture, photograph, music, software code Limits of copyright protection  Does not protect ideas, only expression of ideas  Does not protect facts  Does not protect against independent development, only copying  Not forever (though nearly so) (currently life of author plus 70 years; “works-for-hire – 95 years from publication or 120 years from creation)

5 What are the rights of a copyright owner? Exclusive right to:  Reproduce/copy  Distribute  Perform or display publicly  Make derivative works (movie from a book; new arrangement of existing song) No right to use a work still subject to copyright protection unless:  Have permission; or  Use is “fair”

6 Who is the owner? Creator of the work Creator’s employer (or person who commissioned) if work is a “work for hire” Anyone to whom the creator (or creator’s employer) transfers the copyright Not the purchaser of the work Not the possessor of the work

7 Special ownership issues in academia Default: works authored by employees (including faculty) “works for hire” Policies/agreements that modify the default  Tradition in academia that faculty maintain control over their own works of authorship Sometimes competing desires  to publish and be cited  to use the works of others  to have control over works  to monetize works

8 Some common myths No copyright notice, no copyright. If give credit, ok to use. If artist is dead, or the book out of print, ok to use. If I own physical work, ok to reproduce. If for educational or noncommercial purpose, ok to use. If on Internet, ok to use. If only small portion, ok to use. If poor resolution, ok to use.

9 No right to use unless… Permission (express or implied) “Fair Use”

10 Fair? Photo credit : Annie Leibovitz Photo credit : Paramount Pictures

11 Fair? Photo credit : Shepard FaireyPhoto credit : Associated Press

12 Fair? Photo credit : Stephanie Lenz YouTube video, youtube.com

13 Fair? Photo credit : Patrick CariouPhoto credit : Richard Prince

14 Fair? Photo credit : Patrick CariouPhoto credit : Richard Prince

15 Fair Use “For purposes such as comment, criticism, teaching, news reporting, scholarship or research” Balancing of factors: 1) Purpose and character of the use -- commercial or noncommercial purpose? -- mere copy or transformative character (e.g. parody)? 2) Nature of the work -- factual or creative? -- published or unpublished? 3) Amount and substantiality of the portion used -- “heart” of the work? -- NBC chime is only 3 notes 4) Effect of the use on the market value of the work

16 Fair? Photo credit : Paramount Pictures Photo credit : Annie Leibovitz

17 Fair? Photo credit : Shepard FaireyPhoto credit : Associated Press

18 Fair? Photo credit : Stephanie Lenz YouTube video, youtube.com

19 Fair? Photo credit : Patrick CariouPhoto credit : Richard Prince

20 Photo credit : Patrick CariouPhoto credit : Richard Prince

21 Special issues/rules in Academia Music licensing (ASCAP, BMI) Showing movies in class versus movie rights Synchronizing Rights Online courses (including MOOCs)

22 Higher Education Opportunity Act of 2008 Three primary requirements: o An annual disclosure to students describing copyright law and campus policies related to violating copyright law. o A plan to “effectively combat” copyright abuse on the campus network using “one or more technology- based deterrents.” o Agreement to “offer alternatives to illegal downloading.”

23 Digital Millennium Copyright Act Allows educational uses by college and university professors and by college and university film and media studies students in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment. Does not apply to K-12 teachers or students.

24 The TEACH Act Expands fair use to include distance learning Institutions must: Be an accredited nonprofit institution Have a copyright policy Provide copyright information to faculty, students, and relevant staff Notify students that materials used in connection with the course may be subject to copyright protection Transmit content only to students registered for the course Take precautions to prevent further dissemination of the content. Only make copyrighted material available for as long as necessary for the course.

25 Eroding Rights? Rights holders wield significant lobbying pressure in Congress and are aggressively prosecuting their rights Many question whether academia and others are taking aggressive enough stand on fair use Not enough fair use court decisions to provide clear guidance Development of institutional and professional association fair use guidelines help to establish norms

26 Overprotecting intellectual property is just as harmful as underprotecting it….Overprotection stifles the very creative processes it’s supposed to nurture.” -Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit

27 Conclusion Finding correct balance between rights of copyright holders and creators of new works critical to academic freedom and scholarship. Fair use necessary tool to achieve that balance. Join the debate Copyright © Cain Hibbard & Myers PC


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