Basic Concepts of Copyright Law and Compliance Katherine Prescott Senior Associate General Counsel Arkansas State University System

What Qualifies for Protection? -literary works, including computer software -musical works, including any accompanying words -dramatic works, including any accompanying music -pantomimes and choreographic works -pictorial, graphic and sculptural works -motion pictures and other audiovisual works -sound recordings -architectural works

When Does the Copyright Attach? A Creator’s copyright in a work comes into existence at the moment that the work is fixed in a tangible form of expression.

Who Owns the Copyright? Generally, the Creator of the Work If it was a “work for hire”, then the Employer of the Creator

What Does Copyright Mean? The Owner of the copyright has the control over the use of the work, including any derivative works, subject to certain exemptions. The Owner controls: whether copies can be made; if they can be distributed; whether any derivative works can be created; and, whether a work can be publicly performed, transmitted or displayed. Unless you meet an exemption or have a defense, you must get a license to use the work.

How Long Does Copyright Last? The life of the Creator plus 70 years, for works created on or after January 1, 1978, Unless the work was a work for hire or created anonymously or under a pseudonym, then it is 95 years from the date of copyright registration or 120 years from the date of creation, whichever is shorter.

Determining Copyright Look to the work itself. Contact the Creator. Search the United States Copyright Office. Remember: You do not have to register your copyright to still own it. Registration is encouraged, so that there is a central repository that can act as a searchable index. Registration is required to pursue infringement cases.

Penalties for Infringement Civil: For “willful infringement”, it may include actual damages or statutory damages, up to $150,000.00 per infringing copy. Criminal: For “Willful” infringement for a profit or financial gain. Usually sought only in large scale violations. Incarceration terms and fines applicable, depending on the value of the work.

When is a License Unnecessary? Work is in the “Public Realm” Use of the work qualifies as “Fair Use” Use of the work qualifies under the classroom exception in 17 USCA §110(1) Use of the work qualifies under the TEACH act exception in 17 USCA §110(2) There are some additional exceptions which are not relevant for our purposes.

“Public Domain” This is a legal term of art that means a work is not covered by copyright protection. This does NOT mean that you are able to publicly obtain a copy. Works published in the US before 1923 are in the public domain with no copyright restrictions. Works published between 1923 and January 1, 1978, are copyrighted if formalities observed. All works created after January 1, 1978, are protected in accordance with the general time tables. Works created but copyright has been rejected or released by the Creator are in the public domain.

Fair Use Four Determining Factors: Purpose and Character of the Use The Nature of the Copyrighted Work Used Amount and Substantiality of Portion Used Effect of the Use on the Market

Fair Use is Addressed in Reproduction of Copyrighted Works by Educators and Librarians Also called Circular 21 Published by the United States Copyright Office

Circular 21 provides: A professor may make a single copy of a chapter in a book; an article from a periodical or newspaper; a short story, essay or poem; or a chart, graph, diagram, drawing, cartoon, or picture from a book periodical or newspaper for use in teaching or preparing to teach a class.

Circular 21 provides: A professor may make multiple copies for each student in a class if (A) the copying meets the definitions of brevity and spontaneity; and (B) the copying meets the cumulative effect test; and (C) each copy includes a notice of copyright.

Brevity includes a complete poem if less than 250 words; a complete article, story, or essay of less than 2,500 words; an excerpt of not more than 1,000 words or 10% of the work, whichever is less; or one chart, graph, diagram, drawing, cartoon, or picture per book or periodical issue.

Spontaneity means the copying is at the instance and inspiration of the individual teacher and the decision to use the work was so close in time so as to make it unreasonable to expect a timely reply to a request for permission.

Cumulative effect requires copying of the material for only one course; copying not more than one poem, article, story, essay or two excerpts from the same author; copying not more than three works from the same collection or periodical volume during one class term; and no more than nine instances of such multiple copying for one course during one class term.

Specific prohibitions include: (A) copying shall not be used to create or replace anthologies, compilations or collective works; (B) no copying shall be made from workbooks, exercises, standardized tests, booklets or other consumable materials; and (C) copying shall not be a substitute for the purchase of books, reprints, or periodicals or be repeated with respect to the same items by the same teacher from term to term.

Classroom Display 17 USCA §110(1) allows for “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction…”, provided that, if the use is of a audiovisual work, the copy used was lawfully made, and the person using the copy had no reason to believe otherwise.

Online Classroom 17 USCA §110(2) Extends the Classroom Display exception to online education. Permissible when the display of a work, in an amount comparable to that which is typically displayed in the course of a live classroom session, is made during a course transmission so long as (A) the display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of the class session; (B) the performance or display is directly related and of material assistance to the teaching; (C)the transmission is made to students; and (D) the transmitting institution has specific policies regarding copyright protection.

In the case of digital transmissions, the university must Apply technological measures to prevent a. Retention of the work by recipients for longer than the class session, and b. Unauthorized further dissemination of the work by recipients to others, and Not interfere with technological measures used by copyright owners to prevent such retention or dissemination

For Everything Else Protect yourself and obtain a license. Can obtain directly or through various clearinghouses.

Additional Considerations Privacy interests When using photographs of someone that you take yourself, remember that the person “owns” his or her own image, and you cannot use the image without his/her permission unless: The photograph is taken in a place where there would be no reasonable expectation of privacy; and, The use is non-commercial in nature.

Questions?