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Karen Kitchens Intellectual Property Librarian Wyoming State Library September 2012.

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Presentation on theme: "Karen Kitchens Intellectual Property Librarian Wyoming State Library September 2012."— Presentation transcript:

1 Karen Kitchens Intellectual Property Librarian Wyoming State Library September 2012

2 informational purposes only This presentation is for informational purposes only and is not legal advice.

3 Law & Guidelines Overview Exclusive Rights Scope & Protection Copyright Term Exceptions & Limitations Digital Millennium Copyright Act (DMCA) Technology, Education, and Copyright Harmonization (TEACH) Act Software (Briefly!) Copyright Permission/Copyright Clearance Center

4 Congress has the power, “…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” - U.S Constitution, Article I, Section 8, Clause 8 United States Code Title 17

5 Copyright Timeline: History of Copyright in the United States Association of Research Libraries 1790 – Copyright Act of 1790 1886 – Berne Convention  U.S. became a signatory in 1988 1909 – Revision of Copyright Act  2828  28 years plus 28 years renewal 1976 – Revision of Copyright Act 50  Life plus 50 years  Fair Use and First Sale Doctrines codified  Section 108: Libraries and Archives

6 1994 – Conference on Fair Use 1998 - Sonny Bono Term Extension (Oct 27, 1998) 70  Life plus 70 years 1998 – Digital Millennium Copyright Act (Oct 28, 1998) 2002 – Technology, Education and Copyright Harmonization Act

7 17 USC §106 Creator (author, artist, composer, etc.) exclusive right to:  Reproduce  Prepare derivative works  Distribute copies by sale (or other transfer of ownership), rental, lease, or lending  Perform a work publicly  Display a work publicly Prescribed amount of time.

8 Literary works. Musical works. Dramatic works. Choreographed works. Pictorial, graphics and multimedia. Motion Pictures and audio visual works. Sound recordings. Architectural works. Computer software.

9 17 USC § 102 Original - the work must be unique and not a copy. Fixed - the work must be written or recorded in a tangible manner (digital works are considered tangible ). Automatic - in force when the work is fixed. © NOT Copyright Notice © symbol NOT required.

10 17 USC § 102 NOT Copyright does NOT protect: Facts Ideas, Principles, Concepts Names, Titles Procedures, Processes Works prepared by the federal government. Works that are in the public domain.

11 17 USC § 301-305 U.S. Copyright Office Circular 92 Works published on or after Jan 1, 1978: Individuals:70 Individuals: Life plus 70 years for anything on or after 1978. Joint: 70 Joint: Life of the last surviving author plus 70 years. 95 Works published before 1978 and after 1923 are protected for up to 95 years. (28 year term/67 year renewal) Copyright Term and the Public Domain in the United States Cornell University

12 Public Domain Fair Use Libraries and Archives Educational Exceptions  17 USC § 107 Fair Use  17 USC § 108 Libraries and Archives  17 USC § 110 Educational Exceptions – Performances and Displays

13 Expired copyright. Failed to meet copyright requirements. Author deliberately places in Public Domain. Federal Documents before 1923  Generally - works published before 1923. Creative Commons

14 17 USC § 107 Broad exception that allows people to use a work without permission in certain circumstances.

15 Purpose Purpose – education vs. commercial Nature Nature – fact vs. fiction Amount Amount – and substantiality Effect Effect – on market or value

16 Guidelines published by Ad Hoc Committee on Copyright Law Revision, Author-Publisher Group, March 19, 1976. guidelines These are guidelines!! NOT NOT in Copyright Law

17 Single Copying for Teachers Chapter Chapter from a book. Article Article from a periodical or newspaper. Single of a short story, essay, or poem. Chart, graph, diagram, picture or cartoon.

18 Multiple Copies for Teachers brevity Meet test of brevity. spontaneity Meet test of spontaneity. cumulative effect Meet test of cumulative effect. Each copy includes notice of copyright. Copyright Circular 21

19 Definition: Poetry Poetry = ≤ 250 words. Prose Complete Excerpt Prose = Complete article, if < 2,500 words. Excerpt of ≤ 1,000 words or 10%. Illustration Illustration = One chart, graph, diagram, cartoon or picture per book. Special Works Special Works = Poetry, prose which combine words with illustrations, ≤ 2500 words.

20 Definition: Who Who = Individual teacher must initiate. When When = Decision to copy close to the time of use.

21 Definition: One One course. Onetwo One short poem, article, story, essay or two excerpts from same author. three ≤ three from collective work or one periodical volume. nine ≤ nine items copied in multiples per course during one class term. Exempt: Exempt: Current news periodicals and newspapers

22 NOT Create, replace, or substitute for anthologies, compilations or collective works. Copy from “consumable” works. Substitute for purchasing. Same item by same teacher repeatedly. Charge student beyond cost of copying.

23 17 Title § 109(a) First Sale Doctrine Enables libraries to lend books and other resources.

24 17 Title § 108 One Copy ( a) …no more than o oo one copy or p pp phonorecord of a work (with exceptions) or distribute the copy if: 1)Made without any purpose of direct or indirect commercial advantage. 2)Open to the public. 3)Includes a notice of copyright.

25 17 Title § 108 Three Copies of an Unpublished Work (b) … three copies of unpublished work for purposes of preservation and security (also open to the public) If 1) Copy is currently in collection. And 2) Copy in digital format is not otherwise distributed in that format. And 3) Copy is not made available to the public in that format outside library or archives.

26 17 Title § 108 Three Copies of a Published Work (c) … duplicated solely for the purpose of replacement… that is damaged, deteriorating, lost or stolen, or if existing format is obsolete. If 1) Unused replacement cannot be obtained at reasonable price. And 2) Copy in digital format is not made available to the public in that format outside library or archives in lawful possession.

27 17 Title § 108 Interlibrary Loan ( d), (e) … request made from another library or archives of copyrighted collection may be made If 1) Copy becomes the property of the user for private study, scholarship, or research And 2) Warning of copyright displayed prominently on ILL order form.

28 CONTU Guidelines 1978 Interlibrary Loan five Materials < five years old. five ≤ five articles from one periodical per year. Requests must have copyright compliance statement. six ≤ six copies of articles/chapters/small portions may be made from a non-periodical.

29 Face to Face Instruction Guidelines Music Materials Guidelines DMCA Digital Millennium Copyright Act (DMCA) TEACH Technology, Education and Copyright Harmonization Act (TEACH) Digital Education Software

30 17 Title 110 Face to Face Instruction Nonprofit educational institution. Teaching and learning take place at same time. All performances and displays allowed. NOT Instructional NOT entertainment purposes. Materials must be legally acquired. Teaching must take place in a classroom.

31 Music Materials – Guidelines U.S. Copyright Office Circular 21 Emergency Emergency copying to replace purchased copies. excerpts Copies of excerpts; in no case more than 10% of the whole work. fundamental character Purchased copies may be edited or simplified, not disturbing the fundamental character of the work. evaluation or rehearsal purposes Single copy of a sound recording for evaluation or rehearsal purposes and retained by the institution or teacher.

32 1998 Digital Millennium Copyright Act (DMCA) Prohibits the circumvention of technological protection measures. Sets limitations on copyright infringement liability for OSPs. Expands existing exemption for copying computer programs.

33 archival preservation Updates rules & procedures for archival preservation. Mandates study of distance education activities in networked environments. "first sale" Mandates study of the effects of anti-circumvention protection rules on the "first sale" doctrine.

34 Title I: Prohibitions On Circumvention Of Protection Technologies Title I: Prohibitions On Circumvention Of Protection Technologies : Breaking a technological protection measure that controls access. Manufacture of device, or offering of service, designed to break an effective "technological protection measure”. Manufacture of device, or offering service, designed to break technologies meant to protect the rights of the copyright holder.

35 17 Title 1201 Exemptions for Nonprofit Libraries, Archives and Educational Institutions good faith (d) May circumvent, to review in good faith for purpose of determining purchase. Numerous qualifiers. Serious penalties for misapplication. Use with caution.

36 Title II: Limitations on Online Service Provider (OSP) Liability: Exempts OSP or carrier from copyright liability because of content by a user. Establishes a means for OSP to avoid infringement liability due to storage of infringing information on an OSP's own computer system, or the use of "information location tools" and hyperlinks.

37 Title IV: Digital Preservation three Authorized institutions may make ≤ three copies. "loan" Electronically "loan" to other qualifying institutions. obsolete Permit preservation when existing format of the work becomes obsolete. 17 Title § 108 (c)

38 Digital transmission of copyrighted-protected content for nonprofit, educational purposes. distance education “Participants in authorized distance education courses and programs are not liable for infringement for any transient or temporary reproductions that occur through the automatic technical process of digital transmission.”

39 Accredited nonprofit educational institution. Instructional activities of government body. Occur under the actual supervision of instructor. Directly related to course content. Technical measures must be used to limit access – specific students in specific class. Requirements Institutional & Policy – Technological – Instructional Planning

40 Most licensed. Read agreement. Follow terms of agreement. May prohibit rental or lending. License restrictions, if any, should be observed for in-library or in-classroom use License restrictions, if any, should be observed for in-library or in-classroom use. Software Piracy is a Felony.

41 17 Title 109 § 109(b)(2): Lending to patrons allowed if Lawfully Lawfully obtained. nonprofit Lent for nonprofit purpose. warning Required warning on work. Licensing Licensing agreement permits.

42 17 Title 117 one Libraries may make one archival copy if One copy. Archival copy stored. If possession of original ceases to be lawful, archival copy must be destroyed or transferred along with the original. Copyright notice attached.

43 If uncertain, a aa ask permission. Identify the copyright holder. U.S. Copyright Office Circular 22 Send written permission. If unable to locate owner - use a limited amount. Fair Use

44 Negotiate licensing terms and secure licensing fees, or royalties, for payment to copyright owners. Copyright Clearance Center Primarily corporate or academic users. Provides collective licensing.

45 Karen Kitchens Intellectual Property Librarian Wyoming State Library Phone: (307) 777-7281 E-mail:

46  Association of Research Libraries, “Copyright and Intellectual Property Policies”. Influencing Public Policies. Association of Research Libraries, 07 Jul 2011. Web. Aug 2012..  Butler, Rebecca P., Copyright for Teachers & Librarians in the 21st Century. New York : Neal-Schuman Publishers, 2011.  Crews, Kenneth D., Copyright Law for Librarians and Educators. Chicago: American Library Association, 2012.  Fisherman, Stephen J.D., The Copyright Handbook. Berkeley: Nolo, 2011.  Hirtle, Peter, “Copyright Term and the Public Domain.” Copyright Information Center. Cornell University, 2012. Web. Aug 2012..  Russell, Carrie, Complete Copyright for K-12 Librarians and Educators. Chicago: American Library Association, 2012.  U.S. Copyright Office, “Circulars.” Information Circulars and Factsheets. U.S. Copyright Office, 14 Aug. 2012. Web. Aug 2012..  U.S. Government Printing Office, “United States Code”. Federal Digital System. U.S. Government Printing Office, 2012. Web. Aug/Sep 2012..

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