1. Educating for the Future: Copyright and Intellectual Property Issues An Updated Overview Jud Copeland, Director The Arnold LeDoux Library Louisiana State University at Eunice

2. What is Copyright? The original term of copyright created by Congress in 1789 was 14 years. The original term of copyright created by Congress in 1789 was 14 years. Copyright, as defined in the U.S. Constitution, is a right, reserved to authors for limited times. The purpose is “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries. Copyright, as defined in the U.S. Constitution, is a right, reserved to authors for limited times. The purpose is “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries. (Section 8 of the U.S. Constitution)

3. How long does an author own the rights to his/her own work? Since Congress passed the Sonny Bono Copyright Term Extension Act in 1998, the term of copyright protection for all new works and works under protection as the date of enactment is the life of the author plus 70 years. Since Congress passed the Sonny Bono Copyright Term Extension Act in 1998, the term of copyright protection for all new works and works under protection as the date of enactment is the life of the author plus 70 years. For works of “corporate authorship,” such as with a motion picture, the term of copyright is 95 years from the date of creation or 120 years, whichever comes first. For works of “corporate authorship,” such as with a motion picture, the term of copyright is 95 years from the date of creation or 120 years, whichever comes first. ** Refer to Public Domain Chart ** Refer to Public Domain Chart

4. What rights does an author own? The creator of a work owns 5 rights: The creator of a work owns 5 rights: Reproduction Reproduction Adaptation Adaptation Distribution Distribution Public Performance Public Performance Public Display Public Display These rights are considered property rights and they can be bought, sold, or licensed as a group or individually These rights are considered property rights and they can be bought, sold, or licensed as a group or individually

5. How does an author receive a copyright? To receive a certificate of copyright, an author had to register his/her copyright with the appropriate office – The Registrar of Copyright in the United States. To receive a certificate of copyright, an author had to register his/her copyright with the appropriate office – The Registrar of Copyright in the United States. In addition to registration, certain notice of copyright had to be included on each copy of the material. In addition to registration, certain notice of copyright had to be included on each copy of the material.

6. According to the Berne Convention (1989), notice of copyright is no longer required. Any item created in “tangible form” (written or typed on paper, painted on canvas, recorded on tape, or saved to disk) is automatically protected by copyright law. No longer is registration required to obtain a copyright. The process is automatic and instantaneous. No notice of copyright is required either. According to the Berne Convention (1989), notice of copyright is no longer required. Any item created in “tangible form” (written or typed on paper, painted on canvas, recorded on tape, or saved to disk) is automatically protected by copyright law. No longer is registration required to obtain a copyright. The process is automatic and instantaneous. No notice of copyright is required either.

7. What is Intellectual Property? Intellectual Property (I. P.) means any invention, discovery, improvement, copyrightable work, integrated circuit mask work, trademark, trade secret, and licensable know-how and related rights. Intellectual Property (I. P.) means any invention, discovery, improvement, copyrightable work, integrated circuit mask work, trademark, trade secret, and licensable know-how and related rights. Intellectual property includes individual or multimedia works of art or music, records of confidential information generated by the University, data, texts, instructional materials, tests, bibliographies, research findings, organisms, cells, viruses, DNA sequences, probes, plant lines, chemical compounds, and theses. I. P. may exist in written or electronic form, may be raw or derived, and may be in the form of text, multimedia, computer programs, spreadsheets, databases, graphics, digital images, video and audio recordings, musical compositions, film, film strips, slides, charts, transparencies, other visual/aural aids or CD-ROMS. Intellectual property includes individual or multimedia works of art or music, records of confidential information generated by the University, data, texts, instructional materials, tests, bibliographies, research findings, organisms, cells, viruses, DNA sequences, probes, plant lines, chemical compounds, and theses. I. P. may exist in written or electronic form, may be raw or derived, and may be in the form of text, multimedia, computer programs, spreadsheets, databases, graphics, digital images, video and audio recordings, musical compositions, film, film strips, slides, charts, transparencies, other visual/aural aids or CD-ROMS.

8. Intellectual Property Policy Intellectual Property policy exists to encourage research and innovation, clarify ownership of intellectual property rights, create opportunities for public use of University innovations, and provide for the equitable distribution of monetary and other benefits derived from intellectual property. Intellectual Property policy exists to encourage research and innovation, clarify ownership of intellectual property rights, create opportunities for public use of University innovations, and provide for the equitable distribution of monetary and other benefits derived from intellectual property.

9. Intellectual Property Policy applies to all faculty, staff, students, and any other persons employed by the University; to all persons receiving funds administered by the University or receiving other compensation from the University; and to all University-enrolled graduate students and post- doctoral fellows regardless of funding or employment status. Intellectual Property Policy applies to all faculty, staff, students, and any other persons employed by the University; to all persons receiving funds administered by the University or receiving other compensation from the University; and to all University-enrolled graduate students and post- doctoral fellows regardless of funding or employment status. Except as noted in contractual agreements, the University shall be the sole owner of all intellectual property created through the use of University resources or facilities, supported directly or indirectly by funds administered by the University, developed within the scope of employment by employees, agreed in writing to be a specially commissioned work, or assigned in writing to the University. Except as noted in contractual agreements, the University shall be the sole owner of all intellectual property created through the use of University resources or facilities, supported directly or indirectly by funds administered by the University, developed within the scope of employment by employees, agreed in writing to be a specially commissioned work, or assigned in writing to the University.

10. The TEACH ACT (Technology, Education and Copyright Harmonization Act) President Bush signed into law the TEACH Act on November 2, 2002. The TEACH Act addresses many of the recommendations from the study conducted by the Copyright Office (1999). The TEACH ACT (Technology, Education and Copyright Harmonization Act) President Bush signed into law the TEACH Act on November 2, 2002. The TEACH Act addresses many of the recommendations from the study conducted by the Copyright Office (1999).

11. Primarily, the TEACH Act Amended Section 110 (2) of the Copyright Law of 1976 Which Had Applied Mostly to Closed Circuit Television Environments and Did Not Support the Emerging Distance Learning Technologies.

12. The “old” Section 110 (2) of Copyright Law addressed instructional broadcasting using closed circuit television. Digital transmissions needed to support distance education were not usually permitted. The “old” Section 110 (2) of Copyright Law addressed instructional broadcasting using closed circuit television. Digital transmissions needed to support distance education were not usually permitted.

13. The TEACH Act expands face-to- face teaching exemptions in the copyright law, allowing teachers and faculty to use copyrighted works in the “digital classroom” without prior permission from the copyright holder.

14. The TEACH ACT allows nonprofit, educational institutions to transmit materials in a digital environment once certain definite restrictions are met. The TEACH ACT allows: The TEACH ACT allows nonprofit, educational institutions to transmit materials in a digital environment once certain definite restrictions are met. The TEACH ACT allows: Transmitting performances of ALL of a non- dramatic musical or literary work Transmitting performances of ALL of a non- dramatic musical or literary work Transmitting “reasonable and limited portions of any other performance” Transmitting “reasonable and limited portions of any other performance” Transmitting displays of any work or still images Transmitting displays of any work or still images NOTE: Unlike FAIR USE, the TEACH ACT has several specific conditions that must be met. Be sure to check the link provided for more information on this issue. NOTE: Unlike FAIR USE, the TEACH ACT has several specific conditions that must be met. Be sure to check the link provided for more information on this issue. Also refer to the TEACH ACT Check List. Also refer to the TEACH ACT Check List.

15. Educators and librarians should be reminded that there are still options to be explored outside of the TEACH Act which might apply to situations not covered. These are: fair use, permissions, and creative use of library resources.

16. The ALA Washington Office has created a TEACH Web site to help members with the complexities of the TEACH Act: www.ala.org/washoff/teach.html www.ala.org/washoff/teach.html Also, be sure to check out the Distance Education Clearinghouse for sites on Intellectual Property and Copyright: www.uwex.edu/disted/intprop.html www.uwex.edu/disted/intprop.html

17. The Role for Librarians Nothing in the TEACH Act mentions duties of librarians. Fundamentally, librarians have a mission centered on the management and dissemination of information resources. Distance education is simply another form of that pursuit. Within the framework of the TEACH Act, librarians may find new opportunities to shape distance education programs.

18. Summary The TEACH Act: Major improvement from prior law which severely limited types of works that could be transmitted and required reception by students in classrooms; All types of works are now covered and the location restriction has been eliminated; Yet there are real limits on how much and how copyrighted works can be incorporated into an online course; Important to recognize if an instructor’s intended use is permitted under the TEACH Act and the role of fair use in this process.

19. Fair Use Whereas Congress established the rights of authors to their own works, they also acknowledge that students ad researchers need to have access to otherwise protected works in order to build upon existing knowledge. To achieve this goal, Congress established the doctrine of FAIR USE.

20. The Fair Use doctrine states that reproduction for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is permitted in limited amounts. Section 107 of the Copyright Act lists four factors to help you determine types of content usage that may be considered Fair Use. The Fair Use doctrine states that reproduction for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is permitted in limited amounts. Section 107 of the Copyright Act lists four factors to help you determine types of content usage that may be considered Fair Use.

21. No one factor alone dictates whether a particular use is indeed Fair Use. Consideration of all four factors is needed to help determine whether or not copyright permission is required. No one factor alone dictates whether a particular use is indeed Fair Use. Consideration of all four factors is needed to help determine whether or not copyright permission is required. Before applying these factors to a particular situation, identify if the use is for criticism, comment, news reporting, education, scholarship, or research. If the answer is no, then obtain copyright permission to use the content. If the answer is yes, examine the following four factors: Before applying these factors to a particular situation, identify if the use is for criticism, comment, news reporting, education, scholarship, or research. If the answer is no, then obtain copyright permission to use the content. If the answer is yes, examine the following four factors:

22. The four factors: The four factors: 1. The purpose and character of the use, including whether it is for commercial use or for nonprofit, educational purposes. 1. The purpose and character of the use, including whether it is for commercial use or for nonprofit, educational purposes. 2. The nature of the copyrighted work. 2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole. 3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole. 4. The effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors. 4. The effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.

23. Copyright Court Decisions & Fair Use University of Chicago Press v. BISI, Inc. University of Chicago Press v. BISI, Inc. Princeton University Press v. Michigan Document Service, Inc. Princeton University Press v. Michigan Document Service, Inc. Basic Books, Inc. v. Kinko’s Graphics Corporation Basic Books, Inc. v. Kinko’s Graphics Corporation

24. First Sale Doctrine In addition to FAIR USE and the TEACH ACT, libraries rely on the “first sale” doctrine to be able to circulate and dispose of materials. This doctrine states that once a given copy of a work is sold, the copyright holder no longer may claim the right of distribution over that particular copy of the work. This permits libraries to loan, rent, sell, donate, or destroy any copies of the materials they own. In addition to FAIR USE and the TEACH ACT, libraries rely on the “first sale” doctrine to be able to circulate and dispose of materials. This doctrine states that once a given copy of a work is sold, the copyright holder no longer may claim the right of distribution over that particular copy of the work. This permits libraries to loan, rent, sell, donate, or destroy any copies of the materials they own.

25. The Digital Millennium Copyright Act Digital or electronic content, such as e- books, photographs on Web sites and electronic databases are subject to the same protections under the Copyright Act as non-digital, traditional or analog works. Digital or electronic content, such as e- books, photographs on Web sites and electronic databases are subject to the same protections under the Copyright Act as non-digital, traditional or analog works. The Digital Millennium Copyright Act (DMCA) was passed into law in 1998 to address some of the issues unique to digital copyright. The Digital Millennium Copyright Act (DMCA) was passed into law in 1998 to address some of the issues unique to digital copyright.

26. Many people assume that online content, or content found on Web sites, is not subject to copyright law and may be freely used and modified without permission. This is not true. Others may think that online content is not protected unless it carries a copyright notice. This is not true either. Many people assume that online content, or content found on Web sites, is not subject to copyright law and may be freely used and modified without permission. This is not true. Others may think that online content is not protected unless it carries a copyright notice. This is not true either. Copyright law protects almost all content on the Web or in any other digital or electronic format. Therefore permission is most likely required to use that work beyond Fair Use. Copyright law protects almost all content on the Web or in any other digital or electronic format. Therefore permission is most likely required to use that work beyond Fair Use.

27. What is protected by the DMCA? Any copyright-protected content in a non- digital form will be protected in a digital form. Examples of copyright-protected materials include: Any copyright-protected content in a non- digital form will be protected in a digital form. Examples of copyright-protected materials include: Print and electronic books Print and electronic books Analog and digital musical recordings Analog and digital musical recordings Print and e-mail letters Print and e-mail letters Web sites Web sites Embedded works in Web sites Embedded works in Web sites

28. Both electronic and non-electronic databases (such as professional directories and collections of images) may be copyright-protected if they involve some level of creativity by the author in the selection or organization of the data. With the proliferation of new databases in electronic form, Congress is discussing new legislation to protect even those databases that do not meet the requirements in the Copyright Act. Both electronic and non-electronic databases (such as professional directories and collections of images) may be copyright-protected if they involve some level of creativity by the author in the selection or organization of the data. With the proliferation of new databases in electronic form, Congress is discussing new legislation to protect even those databases that do not meet the requirements in the Copyright Act.

29. In order to help copyright holders protect their digital content, the DMCA contains provisions forbidding circumvention of digital protections and protecting copyright management information. In order to help copyright holders protect their digital content, the DMCA contains provisions forbidding circumvention of digital protections and protecting copyright management information. The anti-circumvention provisions prohibit the unauthorized circumvention of technological measures which control access to or restrict the use of a copyright- protected work. Such technological measures may involve a password or encryption. Breaking the password or encryption is illegal. The anti-circumvention provisions prohibit the unauthorized circumvention of technological measures which control access to or restrict the use of a copyright- protected work. Such technological measures may involve a password or encryption. Breaking the password or encryption is illegal. Copyright management information includes the title of a work, the name of the author or copyright holder and other identifying information. Intentionally removing or altering such information violates a provision of the DMCA. Copyright management information includes the title of a work, the name of the author or copyright holder and other identifying information. Intentionally removing or altering such information violates a provision of the DMCA.

30. DMCA and Unique Uses The electronic environment features methods of “reusing” copyright-protected materials. These methods include: The electronic environment features methods of “reusing” copyright-protected materials. These methods include: Scanning Scanning Using Content from a Web Site Using Content from a Web Site Posting Content to a Web Site Posting Content to a Web Site Forwarding E-Mail Forwarding E-Mail Linking to a Web Site Linking to a Web Site Electronic Discussion Lists, Bulletin Boards and Newsgroups Electronic Discussion Lists, Bulletin Boards and Newsgroups

31. Other Campus Copyright Issues When it comes to copyright, academic institutions must address a wide range of areas in addition to the “reuse” of educational text- based content. When it comes to copyright, academic institutions must address a wide range of areas in addition to the “reuse” of educational text- based content. For example, is computer software being illegally used and copied in your institution? What are the legal implications of faculty, staff and students downloading music files? Who is responsible for unauthorized content on a student Web site? For example, is computer software being illegally used and copied in your institution? What are the legal implications of faculty, staff and students downloading music files? Who is responsible for unauthorized content on a student Web site?

32. Academic institutions must establish compliance guidelines for the use and distribution of a variety of “other types” Academic institutions must establish compliance guidelines for the use and distribution of a variety of “other types” of copyrighted materials including: Computer Software Computer Software Peer-to-Peer (“P2P”) File Sharing Peer-to-Peer (“P2P”) File Sharing Illegal Online Content Illegal Online Content Content Use for Business Purposes Content Use for Business Purposes The Use of Student-Created Materials The Use of Student-Created Materials

33. Links Copyright Clearance Center Copyright Clearance Center www.copyright.com www.copyright.com www.copyright.com U.S. Copyright Office U.S. Copyright Office www.copyright.gov www.copyright.gov www.copyright.gov Public Domain Public Domain www.unc.edu/~unclng/public-d.htm www.unc.edu/~unclng/public-d.htm www.unc.edu/~unclng/public-d.htm Copyright Crash Course Copyright Crash Course www.utsystem.edu/ogc/intellectualproperty/cprti ndx.htm www.utsystem.edu/ogc/intellectualproperty/cprti ndx.htm www.utsystem.edu/ogc/intellectualproperty/cprti ndx.htm www.utsystem.edu/ogc/intellectualproperty/cprti ndx.htm

34. Conclusion Legalities Governing Digital Resources are in a Tremendous Flux Legalities Governing Digital Resources are in a Tremendous Flux The laws and statutes The laws and statutes The case law studies The case law studies The beliefs of copyright owners The beliefs of copyright owners The practices of users The practices of users The Electronic Environment Offers New Opportunities to Make Works Conveniently Available and to Use Others' Works in New Ways The Electronic Environment Offers New Opportunities to Make Works Conveniently Available and to Use Others' Works in New Ways But Technology and the Change it Brings Can Threaten the Balance that Enables Copyright Law to Fulfill its Purpose But Technology and the Change it Brings Can Threaten the Balance that Enables Copyright Law to Fulfill its Purpose

35. Librarians and Patrons Must be Conscious of Their Activities and the Value of Works to their Owners Librarians and Patrons Must be Conscious of Their Activities and the Value of Works to their Owners Understand Copyright Policy, TEACH ACT, FAIR USE, University Policy, and the “risks of using others’ works” Understand Copyright Policy, TEACH ACT, FAIR USE, University Policy, and the “risks of using others’ works” Use good judgment Use good judgment Establish Connections to Licensing Collectives Establish Connections to Licensing Collectives Make it easier for patrons to get permission when they need it Make it easier for patrons to get permission when they need it Visit Georgia Harper’s Copyright Crash Course for Online Copyright Support Visit Georgia Harper’s Copyright Crash Course for Online Copyright Support When in Doubt, Obtain Permission! When in Doubt, Obtain Permission!

36. Presented at Presented at Louisiana Library Association Annual Conference Alexandria, LA April 26 – 28, 2005