1 Sex, Lies, and Plagiarism Rosemary A. Chase University Libraries University Copyright Officer Instructional Technology Unit Spring 2002

2 Sex, Lies, and Plagiarism Intellectual Property and Higher Education ITU Workshop JLC Instruction Room - 228

3 What is Copyright? Copyright laws grant exclusive rights to the owners of an original work such as: –Literary… musical… artistic… A set of EXCLUSIVE RIGHTS

4 Basis for Copyright A little history…  “To every cow, her calf.” An Irish king in settling property rights in a manuscript.  In the mid - 16 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…

5 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 printing.

6 Basis for U.S. Copyright  In the early 18 th century, authors are again considered –  They are given a 14 year exclusive term and the opportunity to renew for an additional 14 years, if they are still living … Statute of Anne: 1710 Was the model for U.S. Constitution, Article 1, Section 8.

7 Basis for Copyright 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

8 What is plagiarism?  Literary or artistic theft  Using another’s words or artistry as if they were your own I.e. without attribution…

9 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.

10 Protected Works  Literary  Musical  Dramatic, Pantomime  Pictorial, Graphic, Sculpture  Audio Visual  Sound Recording  Architectural

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

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

13 Registration & Notice  Copyright may be registered  Notice may be placed on work - ©  Neither are required in order to be protected

14 You: The Rights Holder  If you are the author of a copyrightable work, then you alone* have the following rights, which are protected by law, Title 17 of the US Code… * Unless you give them away.

15 S. 106: Protected Rights of Copyright Owner …the right to…  Reproduce - make copies  Make derivative works  Distribute - copies  Perform publicly  Display publicly

16 Statutory Exceptions Limitations on Exclusive Rights:  Fair Use – section 107  Reproductions by Libraries and Archives – section 108

17 Fair Use versus Plagiarism We will answer these questions after we explore FAIR USE.  Why isn’t plagiarism a fair use?  When is plagiarism copyright infringement?  When does fair use become a copyright infringement?

18 S 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 S. 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 S. 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 S. 107: Fair Use  “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”  “(2) the nature of the copyrighted work;”  “(3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and;”  “(4) the effect of the use upon the potential market for or value of the copyrighted work.”

22 What is Fair Use? 1. Purpose 2. Nature 3. Amount 4. Effect All Four Factors are to be considered.

23 S. 107: Fair Use  Purpose/Character of Use - commercial or nonprofit educational?  Nature of Work - factual or fiction?  Amount and Substantiality - 10%??  Effect of use on Market or Value

24 Agreement on Guidelines  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.

25 The Four Factors and... The Agreement on Guidelines (an interpretation of fair use) …Real Life Situations  Course packs/Anthologies/Readers  Course Reserves  Student Projects

26 Course Reserves and Fair Use  The Agreement on Guidelines applies to print reserves.  Permissions are required when Fair Use does not apply.  Copyright Compliance Statement on Reserve Request Form.

27 Course Reserves…Print  Fair Use applies first semester only.  Copyrighted materials in Retail/Photo copied Course Packs cannot be placed on reserve.  Prints of full text articles from the web cannot be copied for print or electronic reserves.  Prints of graphics from web site cannot be copied for print or electronic reserves.

28 Course Reserves: Electronic  The Agreement on Guidelines does not address digital concepts or applications…  CONFU – Conference on Fair Use developed sets of guidelines for uses not addressed in the House Report.  Electronic Reserves guidelines were not widely accepted but it’s a place to start…

29 CONFU GUIDELINES Identifying an understanding of fair use in Electronic Reserve Systems  SCOPE OF MATERIAL  NOTICES AND ATTRIBUTIONS  ACCESS AND USE  STORAGE AND REUSE

30 CONFU GUIDELINES  SCOPE OF MATERIAL –Requested by course instructor –Short items: article, essay, chapter, graph, even if that work may be marketed individually –Must be a lawfully obtained copy –Proportion of total assigned readings – cannot substitute for purchase of books or materials

31 CONFU GUIDELINES  NOTICES AND ATTRIBUTIONS –Complete bibliographic citation PLUS –Additional notice cautioning against further reproduction or distribution of digital work

32 CONFU GUIDELINES  ACCESS AND USE –Must be structured to limit access to students enrolled in the course, and to instructors and staff responsible for the ER system Individual course password Student password –Students cannot be charged for access to system –Access by course and instructor, not author or article title

33 CONFU GUIDELINES  STORAGE AND REUSE –Permission required each term of use For the same course and instructor –Electronic storage allowed pending permission, but in no event longer than three years –Short-term access allowed for students with “incompletes”

34 Electronic Reserves Practical applications of CONFU  Documents are accessible only by faculty name and course  Access is limited to currently enrolled students and faculty  Password is assigned by library staff to each class  Faculty may LINK to electronic library reserves from their department pages or personal pages

35 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.”)

36 Related Issues  License Agreements for databases –Know how to retrieve this information when you need it –Most license agreements are negotiated according to patron base  Links to full text articles are always preferable to rescanning on a new web page or into electronic reserves …***

37 S. 108: Libraries and Archives  Library must be open to the public  No commercial purpose involved  No systematic reproduction or distribution  Each copy must bear notice of copyright  Private study, scholarship or research

38 Section 108  Unpublished works may only be copied for preservation or replacement AND, ONLY if the library or archives owns the item  No limits on LENDING unless it would substitute for a subscription to or purchase of such work

39 Your Responsibilities  As University personnel, it is your responsibility to: –Inform your students of the above restrictions –Instruct your students on proper attribution, acknowledgment and citation on each reading –Resist the temptation to turn a blind eye to the portion limitations and systematic abuse

40 Liability Issues… 3 Types of Infringement  Direct infringement - knowledge of infringement  Contributory infringement –you must either have knowledge, i.e. faculty directed –or you must materially contribute, i.e. university equipment used  Innocent infringement - very rare on a university campus –Staff (button pusher) responsibility KNOWLEDGE OF INFRINGEMENT IS IRRELEVANT TO YOUR LIABILITY IS IRRELEVANT TO YOUR LIABILITY KNOWLEDGE OF INFRINGEMENT IS IRRELEVANT TO YOUR LIABILITY IS IRRELEVANT TO YOUR LIABILITY

41 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… what you need to know (cont.)

42  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.  Often university policies do NOT deal with any new technology. Liability Issues… what you need to know (cont.)

43 Fair Use or Plagiarism?  Why isn’t plagiarism a fair use? –Because a complete citation must accompany any fair use of another’s work.

44 Plagiarism…  …is not always willful. –Sometimes the inexperienced writer forgets to attribute his paraphrasing efforts.

45 Plagiarism is fraud.  It is using someone else’s words or art without attribution and passing it off as original.  Copyright infringement is using & citing someone’s work without permission nor compensation to the rights holder.  If there is a citation, it is not plagiarism.

46 Cyber-plagiarism  There are growing numbers of web sites where student papers are available for free, or for a price.  See the list of URLs on the handout and make it a point to visit one or more of these sites.

47 Instructors – To Do List  Inform students about their fair use rights and limits –  Remember to tell them the good news first ie. What they CAN do.  Always add full citations to your handouts.  Remind your students to use quotation marks & attribution, even when paraphrasing.

48 Recent & Pending Legislation  jail time was added for willful infringement  Sonny Bono - Term Extension - 20 years added protection  Digital Millenium Copyright Act passed into law, October 1998  TEACH Act – passed Senate June 01

49 DMCA Digital Millennium Copyright Act  What did it change? –Reduced liability for libraries and technology providers for what their clients do with university equipment – WITH STIPULATIONS Full citation required (instead of stamp) Institution agent required Instruction and notices required

50 DMCA Digital Millennium Copyright Act  What did not change?  Section 107- Fair use was not expanded to include digital environment.

51 TEACH Act – S.487  Technology, Education and Copyright Harmonization Act. –Introduced in the Senate in March 2001 –Passed the Senate in June 2001 Introduced in the House June 2001 Twenty-First Century Distance Learning Enhancement Act

52 TEACH Act - continued  Seeks to extend Section 107 (Fair Use) to include Distance Education & digital transmissions  Restrictions include –Limiting access to enrolled students –Providing technology measures to prevent retention of the work in accessible form From the time it passes the House, in what ever form that may be, it will be 2-3 years until its effective date.

53 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? Yes, but only the first time. These are each mounted, cited, and accessed independently by individual students. Question...      

56 Question...      Is it OK for faculty to photocopy 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.

57 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?

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

59 What should everyone know about copyright?  Work is protected from the moment the pen meets the paper.  No registration with the Library of Congress is required for protection.  No “  ” is required.  Fair use is determined on a case by case basis…

60 …and who decides?  Usually case law helps to decide. Unfortunately, there is no case law involving libraries to help library personnel develop clear policies or even guidelines.  The Agreement on Guidelines from the House Report on the Copyright Act of 1976 is a good place to start.  The CONFU guidelines, although not widely accepted, are helping many universities to develop safe harbors for Electronic Reserves and Multimedia applications.

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

62 In a nutshell… 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.