1 Jack Bernard University of Michigan—Flint Friday, November 13, 2015 Copyright Law for Campus

2 What do these have in common?

3 The 9/11 Commission Report Your (draft) article

4 What do these have in common? Your web page

5 What do these have in common? What I am saying The notes you are taking

6 What do these have in common?

7 The 9/11 Commission ReportYour (draft) article Your web page What I am sayingThe notes you are taking

8 Finish This Statement: The purpose of U.S. © law is to: A) Reward authors for the creative efforts B) Provide an economic incentive to write & publish C) Advance public learning D) Provide legal remedies for infringement

9 Finish This Statement: The purpose of U.S. © law is to: A) Reward authors for the creative efforts B) Provide an economic incentive to write & publish C) Advance public learning (about 3% guess this) D) Provide legal remedies for infringement

10 The purpose of copyright is etched right into the Constitution. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; ---U.S. Const. Art.1 §8 cl. 8

11 What is the purpose of copyright? “…copyright law ultimately serves the purpose of enriching the general public through access to creative works…” Fogerty v. Fantasy, Inc. 510 U.S. 517, 527 (1994) “The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Sony. v. Universal City Studios, 464 U.S. 417 (1984)

12 What is the purpose of copyright? “…it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) “…monopoly created by copyright thus rewards the individual author in order to benefit the public” id. at 546

13 Means >Ends Reward Authors Provide Incentive Promote Progress Provide Legal Remedies

14 Copyright law codifies a constant balancing act rights, needs, and desires among: –authors and copyright holders –publishers and distributors –users and the public

15 Copyright Requirements Original Work of authorship Fixed in a tangible medium of expression

16 Copyright Requirements Original –not copied + a minimal degree of creativity Work of authorship Fixed in a tangible medium of expression

17 Copyright Requirements Original –not copied + a minimal degree of creativity Work of authorship –including not only literary, but also musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, and architectural works Fixed in a tangible medium of expression

18 Copyright Requirements Original –not copied + a minimal degree of creativity Work of authorship –including not only literary, but also musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, and architectural works Fixed in a tangible medium of expression –embodiment is sufficiently permanent to permit it to be perceived for a period of more than transitory duration

19 © happens! Notice and registration are not required to obtain copyright Neither is publication Copyright attaches automatically upon creation But notice and registration do provide certain advantages

20 Which means that... Almost everything at the heart of academic enterprises is copyrighted –This includes not only your books, your essays, your musical scores, and your articles, but also your drafts and charts, your web pages, your letters and to your friends, and even the notes you might be taking (and doodles you are drawing) right now –This also includes other people’s books and articles, drafts, charts,... etc. that you want to incorporate into your own works –This even includes the works of faculty, staff, and students.

21 Who is the Copyright Holder? Default Rule: The creator is the copyright holder –If two or more persons jointly create a work, they are joint copyright holders with joint rights Exception: “work for hire” Independent Contractors Academic practice: What we do for faculty Who’s the © holder? Start with the author.

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The Back Cover 23

24 It is important to distinguish among... Ideas, facts, inspirations, etc. that may underlie a copyrightable work. A work of authorship Copies of a work, including the original The underlying copyright in a work

25 §106 Rights of © Holder to do and authorize … Reproduction of the work in whole or in part Preparation of derivative works –e.g., translations, musical arrangements, dramatizations, sound recordings, & second editions Distribution of copies of the work to the public by sale, gift, rental, loan, or other transfer Public performance of the work Public display of the work

26 Permissions and Transfers The exclusive rights are both independent of each other and individually divisible License: permission to exercise one or more of the exclusive rights in specified ways Transfer: assignment of control over one or more of the exclusive rights Transfers and exclusive licenses must be in writing and signed by the rights holder

27 How Long Does Copyright Last? Copyright protection extends to all original works of authorship, including unpublished works, from the moment they are fixed in a tangible medium of expression for –the life of the author plus 70 years –or 95 years for “works for hire”

28 The Public Domain Once the term of protection for a copyrighted work has passed, it rises into the public domain. When a work rises into the public domain, a © holder’s 106 rights no longer attach to that work Once a work rises into the public domain, there it must forever remain unless congress passes legislation saying otherwise. Works that are not copyrightable are in the public domain from the start.

29 Copyright v. Plagiarism Copyright protects only the expression, not the underlying facts or ideas –Copying someone else’s facts or ideas may be plagiarism (or patent infringement or...), but it’s not copyright infringement Crediting the source is not a defense to copyright infringement –Not crediting the source is plagiarism

30 Copyright Infringement Infringing on someone else's copyright can have serious consequences: –Up to $150,000 in civil damages, plus attorney fees, for each infringement –And, potentially, criminal fines and imprisonment

31 Copyright in Cyberspace: The Dilemma The Internet is really just a big photocopier: –You can’t view a web page without making copies of it –You can’t read a Usenet message without making copies of it –You can’t forward an message without making and distributing copies of it So is it all copyright infringement? It depends!

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It is not infringement if... You are the copyright holder You have express permission The work you are using is uncopyrightable or otherwise in the public domain There is a specific statutory limitation e.g. What you are doing is “fair use”

34 Detractors have a lot to say.

§106 Exclusive Rights in Copyrighted Works Notwithstanding sections 107 through 122, the owner of copyright under this title has the exclusive right to make and to authorize all uses including the following:

§106 Exclusive Rights of © Holders Reproduction of the work in whole or in part; Preparation of derivative works ; Distribution of copies of the work to the public by sale, lease, rental, loan; or other transfer of ownership; Public performance of the work; Public display of the work.

§106 Exclusive Rights in Copyrighted Works Notwithstanding sections 107 through 122, the owner of copyright under this title has the exclusive right to make and to authorize all uses including the following:

§106 Exclusive Rights in Copyrighted Works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

Compare Notwithstanding sections 107 through 122, the owner of copyright under this title has the exclusive right to make and to authorize all uses including the following: (false) Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (true)

Copyright protection "has never accorded the copyright owner complete control over all possible uses of his work.... All reproductions of the work, however, are not within the exclusive domain of the copyright owner; some are in the public domain. Any individual may reproduce a copyrighted work for a "fair use"; the copyright owner does not possess the exclusive right to such a use." Sony. v. Universal City Studios, 464 U.S. 417 (1984)

There is a lot of misinformation being consumed!! 42

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Limitations §106—the copyright holder’s rights that are statutorily limited by other rights §107—fair use, a broad, more general right that limits the copyright holder’s rights §§ —specific rights that limit the copyright holder’s rights: –limitations that are fair uses, but are easier to apply –limitations that are not fair uses, but that Congress authorizes 46

You Cannot Read §106 alone… §106.3 Distribution of copies of the work to the public by sale, lease, rental, loan; or other transfer of ownership; § “First Sale”

Possible Uses of a  ed Work… ©

Fair Use -- §107 “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—”... the four factors 49

Fair Use Factors Purpose and character of the use –personal/educational/transformative v. commercial use Nature of the work being used –factual v. creative Amount and substantiality of the portion used in relation to the whole –small. V. large, both quantitatively and qualitatively Effect on the market for the original –not of your individual use, but of the type of use

§110(1) Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) 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, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made; 51

§110(2) Notwithstanding the provisions of section 106, the following are not infringements of copyright: (2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if— (A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution; (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to— (i) students officially enrolled in the course for which the transmission is made; or (ii) officers or employees of governmental bodies as a part of their official duties or employment; and (D) the transmitting body or institution— (i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions— (I) applies technological measures that reasonably prevent— (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination; 52

§110(2): explained My institution is a nonprofit accredited educational institution or a governmental agency It has a policy on the use of copyrighted materials It provides accurate information to faculty, students and staff about copyright Its systems will not interfere with technological controls within the materials I want to use The materials I want to use are specifically for students in my class 53

§110(2): explained Only those students will have access to the materials The materials will be provided at my direction during the relevant lesson The materials are directly related and of material assistance to my teaching content My class is part of the regular offerings of my institution I will include a notice that the materials are protected by copyright 54

§110(2): explained I will use technology that reasonably limits the students’ ability to retain or further distribute the materials I will make the materials available to the students only for a period of time that is relevant to the context of a class session I will store the materials on a secure server and transmit them only as permitted by this law I will not make any copies other than the one I need to make the transmission 55

§110(2): explained The materials are of the proper type and amount the law authorizes: –Entire performances of nondramatic literary and musical works –Reasonable and limited parts of a dramatic literary, musical, or audiovisual works –Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching 56

§110(2): explained The materials are not among those the law specifically excludes from its coverage: –Materials specifically marketed for classroom use for digital distance education –Copies I know or should know are illegal –Textbooks, coursepacks, electronic reserves, and similar materials typically purchased individually by the students for independent review outside the classroom or class session 57

§110(2) Checklist If I am using an analog original, I checked before digitizing it to be sure: –I copied only the amount that I am authorized to transmit –There is no digital copy of the work available except with technological protections that prevent my using it for the class in the way the statute authorizes 58

Questions and Discussion 59