1. FALL 20031 Alien Nation Copyright in the 21 st Century Rosemary A. Chase George Mason University Libraries University Copyright Officer BYTE Week 2003

2. FALL 20032 Intellectual Property Issues in Higher Education TEACH Act – Digital Millennium © Act – …What we need to know But first…

3. FALL 20033 Presume EVERYTHING IS OWNED [copyrighted, patented, trademarked] …by someone.

4. FALL 20034 Only the owner can copy distribute perform display or make a derivative work.

5. FALL 20035 “FAIR USE” LETS YOU USE OTHERS’ WORKS…

6. FALL 20036 …BUT NOT VERY MUCH, AND NOT FOR VERY LONG.

7. FALL 20037 Sometimes you need to ask permission …ahead of time.

8. FALL 20038 What is Copyright? … exclusive rights granted only to the owners of original works. Literary… musical… artistic…etc. A set of EXCLUSIVE RIGHTS

9. FALL 20039 Basis for U.S. Copyright  In the early 18 th century, authors were given a 14 year exclusive term and the opportunity to renew for an additional 14 years, if they were still living … Statute of Anne: 1710 Model for U.S. Constitution, Article I, Section 8.

10. FALL 200310 U.S. Constitution Article I, Section 8: “The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  Title 17 of U.S. Code - Federal Copyright Law

11. FALL 200311 Copyright...  Work Must Be: –Original expression –Fixed in a tangible form Begins: –At the moment original work is fixed Example: Graphic created in PhotoShop is protected as soon as saved to disk.

12. FALL 200312 Non-Protected Works - Cannot be Copyrighted  Facts  Titles  Names  Short Phrases  Ideas

13. FALL 200313 Public Domain  Non-Protected Works  Lost Copyright  Abandoned Works  Expired Copyright  Federal Government Works

14. FALL 200314 Registration & Notice  Copyright may be registered  © Notice may be placed on work  Neither are required in order to be “copyrighted”

15. FALL 200315 §. 106: Owners have exclusive rights to…  Reproduce - make copies  Make derivative works  Distribute - copies  Perform publicly  Display publicly

16. FALL 200316 Statutory Exceptions “Limitations on Exclusive Rights”  Fair Use – section 107  Reproduction by libraries and archives – section 108  Exemptions of certain performances and displays – section 110

17. FALL 200317 What is Fair Use? It is the portion of a work which is considered to be a fair amount to reproduce for certain fair purposes. UHMM…could you be more specific?

18. FALL 200318 § 107. Limitations on exclusive rights: Fair use “ Notwithstanding the provisions of section 106, the fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, …

19. FALL 200319 § 107: Fair Use … for purposes such as: – criticism, comment, news reporting –teaching (including multiple copies for classroom use) –scholarship –or research …is not an infringement of copyright.

20. FALL 200320 § 107: Fair Use “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include…”

21. FALL 200321 …all of these (the famous “four factors”) 1. Purpose 2. Nature 3. Amount 4. Effect All Four Factors must be considered.

22. FALL 200322 §. 107: Fair Use  Purpose/Character of Use - commercial or nonprofit educational?  Nature of Work - fact or fiction?  Amount and Substantiality - 10%??  Effect of use on Market or Value

23. FALL 200323 Agreement on Guidelines for Non-profit Classroom  From the House Report which accompanied the Copyright Act of 1976  Only considered contemporary technology – i.e. photocopies & phono records  The Guidelines (included in your handouts) give examples, definitions and prohibitions.

24. FALL 200324 Digital Millennium Copyright Act… Known as the DMCA  Signed October 1998  Intended to bring FAIR USE to the digital environment but did NOT

25. FALL 200325 DMCA Digital Millennium Copyright Act  What did it change? –Reduced liability for OSPs (Online Service Providers) such as libraries and other technology providers for what their clients do with institutional equipment –

26. FALL 200326 DMCA Digital Millennium Copyright Act  What did not change? §107- Fair use was not expanded to include digital environment.

27. FALL 200327 DMCA Digital Millennium Copyright Act  Why should I be informed about the DMCA? –The University receives “cease & desist” notices based on alleged infringement found on Mason’s servers, subpoenas for names may not be far behind. –DMCA’s offer of reduced liability has strings attached…

28. FALL 200328 DMCA Digital Millennium Copyright Act –STIPULATIONS include Institution agent required to register with the Library of Congress to field complaints Institution must post copyright compliance policy Accurate instruction on copyright compliance and University policy must be offered Posted notices required on equipment

29. FALL 200329 Where is my fair use?  TEACH Act – signed November 2002  acknowledges fair use for distance learning – and other avenues for online publishing in non-profit education…

30. FALL 200330 TEACH Act  Alters §110(2) to include Distance Education & digital transmissions in addition to “closed-circuit” T.V.  Restrictions include: –Limiting access to enrolled students –Providing technology measures to prevent retention of the work in accessible form

31. FALL 200331 TEACH Act  The GOOD NEWS –Expands allowed works Display/performance of almost all types of works –Expands receiving locations All locations – not just closed-circuit T.V.

32. FALL 200332 TEACH Act More GOOD NEWS… –Allows storage Retention and access for limited time –Allows digitizing of analog materials Only if not already available in that form

33. FALL 200333 TEACH Act  The BAD NEWS –Law still based on “mediated instructional activities” –Institution must impose restrictions on access –Encourages increased centralization of Distance Learning course design and implementation …which may lead to increased content monitoring Raising issues of academic freedom –Not the same broad rights as “face to face” classroom allowances

34. FALL 200334 TEACH ACT For Instructors…  What’s allowed –“reasonable and limited portions” of dramatic or non dramatic literary and musical works, “in an amount comparable to that which is typically displayed in the course of a live classroom session.”

35. FALL 200335 TEACH Act For Instructors  What’s off limits for digitization –Anything marketed in that format –Anything “not lawfully made and acquired” under U.S. Copyright Act. –Stage plays in their entirety (dramatic works) –Optional readings (must be integral)

36. FALL 200336 What has TEACH Act done for Electronic Reserves?  …nothing. Legislation specifically excludes Electronic Reserves –(connotation is optional, supplemental)  We continue to rely on the old CONFU Guidelines.

37. FALL 200337 Electronic Reserves CONFU GUIDELINES IN BRIEF  Documents are accessible only by faculty name and course  Access is limited to currently enrolled students and faculty  Password is assigned to each instructor  Faculty may LINK to electronic library reserves from their department pages or personal pages

38. FALL 200338 Electronic Reserves  The first page of each reading/article must have a full bibliographic citation.  DMCA requirement: A copyright notice must appear on the first page of each document to accompany the complete citation (replaces the generic stamp used for so many years: “This material may be protected by copyright law, Title 17, U.S. Code.”)

39. FALL 200339 Why isn’t everyone using E-reserves?  Most book chapters are not permitted when permission is requested.  Students say it takes too long to download the readings.  Professors still want to scan their required readings onto web courseware… risky business…

40. FALL 200340 Using Course Ware Q. Can I scan articles into WebCT without getting permission? After all, it IS password protected and no one can get to it. A. Only the first semester. We recommend letting the Library do the scanning and taking on the permissions responsibility, not to mention the cost.

41. FALL 200341 IN THE NEWS  FILE SHARING –RIAA – (Recording Industry Association of America) successfully sued for sharing music using campus servers. The Universities were NOT sued.

42. FALL 200342 According to DMCA & TEACH:  It is your responsibility to: –Inform your students of the restrictions discussed today –Instruct your students on proper attribution, acknowledgments and citations to appear on each reading copied –Resist the temptation to turn a blind eye to the portion limitations and systematic abuse

43. FALL 200343  You cannot be “directed by a higher authority” to do anything that you suspect would be an infringement.  Intent to infringe is NOT required, to be found liable.  Policy protects the institution and its faculty only if the faculty have followed policy. Liability Issues…

44. FALL 200344 Question...      Is it OK for faculty to photocopy for their students the information they have printed off the Web? NO, not unless they have proof it’s PD. Their only legal copy is the personal copy printed/downloaded from the web site. Each student should print out her own copy.

45. FALL 200345 Question…..      Can a professor use a student essay from last semester in a collection of readings for future semester course packet or reserves? –Yes, but only with express written consent from each student author.

46. FALL 200346 Can a collection of photocopied articles and book chapters (course reader) ever be considered a “fair use” for course reserves? NO Any compilation of previously published readings is considered a new publication. Question...      

47. FALL 200347 Can a stack of photocopied loose articles and book chapters ever be considered a “fair use” for electronic reserves? It might be, but only the first time - independently accessed by individual students. Question...      

48. FALL 200348 Questions?????? NO and NO. How about scanning in newspaper articles – the newspaper is PD, right?… Wrong. Can we scan into ERS a set of maps? Aren’t maps facts, like common knowledge?

49. FALL 200349 Is an instructor allowed to put on reserve, a photocopy of a textbook or workbook that can be bought in the bookstore? Question...       NO.

50. FALL 200350 In conclusion  We are not police officers, but we do have responsibilities and should take them seriously.  Remember: These are not my personal rules. Supporting compliance with the law promotes integrity. It is your responsibility to uphold University policy & promote academic integrity.

51. FALL 200351 Bottom line… Educational purpose –does NOT equal FAIR USE. 10% IS NOT ALWAYS FAIR USE. OUT-OF-PRINT does NOT mean out-of -COPYRIGHT. WWW is NOT public domain.

52. FALL 200352 University Copyright Office http://library.gmu.edu/copyright George Mason University Libraries MSN 5D9 Johnson Ctr. 120 (136) George Mason University Fairfax, VA 22030-4444 Monday – Friday: 8:00 – 4:30 703-993-2544 rchase@gmu.edu