Copyright Tutorial The Basics Rosemary A. Chase George Mason University Libraries University Copyright Officer

What follows is a foundation for the understanding of copyright law and its many exceptions and exemptions. Unless one has a grasp of how it all started, it is difficult to appreciate the evolution it is experiencing. But first…let’s begin with a few safe assumptions…

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

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

“FAIR USE” LETS YOU USE OTHERS’ WORKS…

…BUT NOT VERY MUCH, AND NOT FOR VERY LONG.

Sometimes you need to ask permission …ahead of time.

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

Basis for Copyright A little history…  “To every cow, her calf.” An Irish king in settling property rights in a manuscript.  In the mid - 15 th century with the invention of the printing press, laws were passed in London to control the presses – and what was printed –  Authors lose rights at first printing…

Basis for Copyright A little more history…  By 1694, these same printing institutions wanted Parliament to grant them rights in perpetuity…so, between the 16 th and 17 th centuries, controlling print content became control of print.

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.

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

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.

Non-Protected Works - Cannot be Copyrighted  Facts  Titles  Names  Short Phrases  Ideas

Public Domain  Non-Protected Works  Lost Copyright  Abandoned Works  Expired Copyright  Federal Government Works

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

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

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

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? The fair use statute (paragraph…) is in your handouts.

§ 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, …

§ 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.

§ 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…”

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

§. 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

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.

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

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 –

DMCA Digital Millennium Copyright Act  Why should I be informed about the DMCA? –When our campus receives “cease & desist” notices based on alleged infringement found on Mason’s servers, closer scrutiny may not be far behind… –DMCA’s offer of reduced liability has strings attached…

DMCA Digital Millennium Copyright Act –STIPULATIONS include Institution agent required to register with the Library of Congress to field complaints Institution policy must be posted Instruction on copyright and policy must be offered Posted notices required on equipment

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

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

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

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

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

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.”

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.

What has TEACH Act done for Electronic Reserves?  …nothing. Legislation specifically excludes Electronic Reserves  We continue to rely on the old CONFU Guidelines to apply fair use

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

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.”)

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…

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.

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

Kinko’s Case  The added damages in the Kinko’s case were NOT based on financial loss to the publishers.  “Kinko’s had failed to instruct its employees in the pertinent aspects of copyright law…[so that] substantial damages are necessary to deter Kinko’s future infringements.” P. 625, Ginsburg et al. Liability Issues…

 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.  Copyright Policy protects the institution and its faculty only if they have followed policy. Liability Issues…

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.

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.

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...      

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...      

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?

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

In conclusion  We are not police officers, but we do have responsibilities and should take them seriously.  Remember: These are not your personal rules. But it is a good idea to promote compliance. It is your responsibility to uphold University policy & promote academic integrity.

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.

University Copyright Office George Mason University Libraries MSN 5D9 Johnson Ctr. Rm. 120 George Mason University Fairfax, VA Monday – Friday: 8:00 – 4: