Stephanie Viola Nainsí Houston Copyright & Fair Use Stephanie Viola Nainsí Houston

Word of Caution We are not lawyers Copyright is a legal issue and we are not lawyers. Therefore, any information we provide is merely advice based on past interpretations of the laws from court rulings and copyright experts.

Definition “copyright is a statutory privilege extended to creators of works that are fixed in a tangible medium of expression” (Bruwelheide, 1995, as cited by Butler, 2004, p. 4). “Fixed” means that the work is somehow “recorded” and can be referenced in the future. For example, a song that is recorded or a song that is written down is fixed. A blueprint that is “recorded” on paper or on a computer is fixed.

What is copyrighted? Any original creation that can be “fixed” including: Literary Works Musical works Dramatic works Pantomimes & choreographed works Pictorial, graphic, & sculptural works, including maps Motion pictures & other audiovisual works Sound recordings Architectural works Translations and other derivative works With tangible works, such as books and architectural works, it is easy to see what “fixed” means. However, born-digital objects are also protected by copyright. Choreographical and pantomime works can be fixed on DVD, videocassette or in written notation.

How is it copyrighted? Register it with the Copyright Office (http://www.copyright.gov/register/) Registration isn’t required, though, works are protected either way Adding a © is an indicator to others, but it is not required

What isn’t copyrighted What’s not “fixed” Titles, short phrases, names, common symbols, designs, slight changes in fonts, lists of ingredients Ideas, procedures, methods, discoveries Plain calendars, common facts, charts of measure U.S. Government publications Some information is open for use without requiring permissions. Findings and facts are not copyrightable, however, their arrangement within the table may be copyrighted (Crews, 2006). Some government publications have been commissioned and are therefore protected by copyright.

Title 17 of US Copyright Code http://www.copyright.gov/title17/ This is a gateway website providing links to sections of the current copyright law, in official language. Title 17 is part of the U.S. Code, the federal laws of the U.S. Visit the site to read the specific laws.

Copyright Term Extension Act (CTEA) of 1998 Also called the Sonny Bono Act Extended copyright protection for an additional 20 years Life of the author plus 70 years 120 years after creation or 95 years after publication, whichever is earlier, for corporate authorship Due to changes in Title 17, specifically the Sonny Bono Copyright Term Extension Act of 1998, no new works will move into the public domain until 2019.

Public Domain If item is in public domain, copyright no longer applies Published prior to 1923 Works published between 1923 & 1978 which are missing a copyright notice and/or renewal Public domain works are those works whose copyright term-length has been met. Therefore, copyright no longer applies and these works may be used freely, with proper citation. The word “published” applies to the written works and the words “recorded” or “created” would apply to performed works and artistic works, respectively. A copyright notice is a message which is clearly marked on the copyrighted work. The best example would be to think about the copyright page on a book.

Fair Use “Fair use provisions of the copyright law grant particular types of users conditional rights to use or reproduce certain copyrighted materials as long as the reproduction or use of those materials meets defined guidelines” (Simpson, 2001, p. 13). Fair use allows portions of copyrighted works to be used without permission in some situations. Education is one area that frequently relies on the right of fair use. The fair use law includes four guidelines that all must be considered when deciding on whether or not an intended use of a copyrighted work will apply as fair use.

Fair Use Factors Purpose & character of use: non-profit educational Commercial In deciding if your use of copyrighted material falls under fair use, consider whether or not you’re using this source for non-profit, educational purposes, or for commercial purposes. If you are not making any money off the use of this material, and you are using it to educate, your use probably falls under fair use. If, however, you’re using the copyrighted material for commercial use, if you’re making money from its use, then your use probably doesn’t fall under fair use.

Fair Use Factors Nature of the copyrighted work Fiction Published Non-fiction Unpublished In considering whether or not your use of the copyrighted material falls under fair use, you must consider the nature of the copyrighted work. Is the work fiction or non-fiction? Is it published? Most fair use of copyrighted material is for non-fiction work--think about it in terms of educational use and the fact-based nature of non-fiction work.

Fair Use Factors Amount Used and substantiality of the portion used Small portion General section Large portion Heart of the work When considering fair use, the amount of the material used, in relationship to the whole of the material, must be considered. The guidelines regarding the amount used is discussed later. “Substantiality” refers to what part of the material is used--is the portion used the main idea of the material? This is best considered when trying to use a song following fair use: if the portion used is the main riff, a well-known chorus, etc., then the part you want to use is too substantial to fall under fair use.

Fair Use Factors Effect of use on the market Use does not replace sale of the work Use affects the profitability of the work Considering how your use of the work might impact the market value of the material is important when applying fair use. If you are copying something so substantial that the school system or the students will no longer have to purchase the material, then your use is not fair use. An exception exists if a reproduction is made to replace an unexpectedly damaged original that has been reordered. Since a copy has already been ordered and paid for, making copies for the short-term falls under fair use. When the new material arrives, any reproduction should be destroyed.

Portion Limit Guidelines for Fair Use Educational Multimedia: Video: 10% or 3 minutes Text: 10% or 1,000 words Poems less than 250 words: 3 Poems over 250 words: Up to 250 words 3 excerpts by one poet 5 excerpts by different poets in same collection

Portion Limit Guidelines for Fair Use (cont.) Educational Multimedia: Music, lyrics, music video: up to 10% or 30 seconds Numerical data sets: 10% or 2,500 fields or cells Illustrations/photographs: 5 by same artist/photographer 10% or 15 images from one published work (from Butler (2004), p. 18)

CONFU CONFU: The Conference on Fair Use 1997 CONFU Website GUIDELINES not law It is important to note that these Fair Use Guidelines are not law, merely guidelines. If you were thought to be in violation of copyright, adhering to these guidelines might not be enough to keep you from being found guilty of copyright infringement. Each case is decided individually, which means that it is very important to consider these guidelines seriously.

Section 110 Copyrighted works may be performed or displayed in a face-to-face instructional setting as long as the work was legally made Public performance rights are required when showing films which are not accompanied by instruction Movies and music may be performed in their entirety without copyright permission in face-to-face instruction. However, the works must be legally made and the use must be relevant to class instruction/lesson plan. Showing films as a reward or just to pass time is not allowed unless public performance rights are purchased or permission has been granted or sold by the copyright owner.

CTEA/Section 108(h) Libraries, archives, and non-profit educational institutions can reproduce, distribute, display or perform works in their last 20 years of copyright protection subject to the following conditions: A special exclusion exists for libraries, archives, and non-profit educational institutions with section 108 that was added upon the passing of the CTEA. However, the exclusion is very limited.

Section 108(h) conditions The work is used for preservation, scholarship, or research The work is no longer being sold A copy cannot be obtained at a reasonable price The copyright owner has not provided a notice otherwise limiting the work’s use If all of these conditions apply, the entity may use a work in its last 20 years of protection. This is one way that libraries and schools could avoid the implications of the CTEA.

Digital Millennium Copyright Act of 1998 Signed into law in 2000 Long and confusing Examined every 3 years by the Librarian of Congress to consider the implications of the act for librarians and educational purposes

“Highlight” of DMCA The use of technology to circumvent technology in place to limit use or to prevent copying Court cases One of the major aspects of the DMCA is that a person/entity cannot use technology to circumvent the technology already in place that limits use or prevents copying. For example, a program that can break the copyright-protection code of videos, like Macrovision. Recent court cases, however, have allowed the use of this technology if the end-use of the technology is legal: breaking a code to allow you to watch a dvd from another region, breaking a code to make a copy of something for preservation purposes, breaking a code to get “into” a computer program for research purposes, etc. The DMCA is an act that will be the focus of a great deal of literature and legal challenges in the foreseeable future, so it’s best to keep an eye out for the new rulings.

TEACH Act of 2002 Technology, Education and Copyright Harmonization Act Allows copyrighted materials to be disseminated to distance education students of accredited, non-profit institutions without requiring permission or payment The criteria that must be met in order for the TEACH Act to apply are numerous. The use does not apply to interlibrary loan, electronic reserves or the creation of coursepacks.

Permissions Copyright Clearinghouse Copyright Advisory Office Copyright Renewals Creative Commons These sites are available to the public and can be used to request permission to use copyrighted works.

Need help? Media Specialists, Academic Librarians, Copyright Lawyers www.copyright.gov Copyright for Teachers and Librarians (2004) by Rebecca Butler Copyright essentials for librarians and educators (2006) by Kenneth D. Crews There are many sources to turn to when you need help determining the best practice when considering whether or not to use copyrighted works in an academic environment.

References Butler, R. P. (2004). Copyright for teachers and librarians. New York: Neal-Schuman Publishers. Crews, K. D. (2006). Copyright essentials for librarians and educators: Creative strategies and practical solutions. Chicago: American Library Association. Simpson, C. (2001). Copyright for schools: A practical guide. Worthington, OH: Linworth Books.