Copyright in Scholarship and Instruction Gail McMillanFDI 2008 Digital Library and Archives University Libraries, Virginia Tech

US Constitution, Article I, Sect. 8 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. Copyright Law: U.S. Code, Title 17 Assigns rights and then limits them

Copyright Law: U.S. Code, Title 17 © Section 102: Original authorship stabilized © Section 106: Exclusive rights of creators Limitations to exclusive rights © Section 107: Fair use © Section 108: Library services © Section 110: Instruction--TEACH Act – –

Rights of copyright holders 1. Reproduction 2. Modification; derivative works 3. Distribution; publish 4. Public performance 5. Public display Title 17 U.S.C. Sec. 106

What kinds of works are protected by ©? Protected by © n Literary works n Musical works n Dramatic works n Pantomimes and choreographic works n Pictorial, graphic, and sculptural works n Motion pictures and other AV works n Sound recordings n Architectural works Not Protected by © n Ideas and concepts n Procedures and processes n Systems and methods of operation n Principles and discoveries n Titles, names, and short phrases n Unfixed works

Who owns the copyright? n Creators of original works n Creators' assignees n Employers: works for hire

As of March 1, 1989, copyright notice does not have to appear on a work for it to be legally copyrighted. © 2003 by Gail McMillan Protection under federal law is automatic

Creative Commons defines the spectrum of possibilities between full copyright — all rights reserved — and the public domain — no rights reserved. CC licenses help authors/creators retain their copyrights while inviting certain uses of their works — a “some rights reserved” copyright.

Creative Commons Licenses n Allow commercial uses of your work? –Yes. No. n Allow modifications of your work? –Yes. Yes, as long as others share alike. No. n Jurisdiction of your license (e.g., US) –

Copyright registration is not required (but has important benefits) n Reminds the public of copyright protection n Informs public of the copyright owner n Negates “innocent infringement” defense n Certificate is prima facia evidence of validity of copyright and documents facts n Protects against importation of infringing copies n Pre-requisite to filing infringement suit n Statutory damages and attorney's fees if

4 New Filing Options 1.Electronic application and deposit 2.Electronic application and hard-copy deposit 3.2-D barcode application and hard copy deposit 4.Paper application and hard copy deposit n Records in eCO (Voyager) database, enhanced search capability n $35 fee for electronic filing vs. $45 for paper –Pay by credit card, debit (ACH), or CO deposit account

Copyright Law: U.S. Code, Title 17 © Section 102: Original authorship stabilized © Section 106: Exclusive rights of creators Limitations to exclusive rights © Section 107: Fair use © Section 108: Library services © Section 110: Instruction--TEACH Act – –

Permission or license to use a copyrighted work is NOT required if n Work is a fact or an idea –Phone number, earth is round n Public domain –US government documents –Very old [see App. A]Very old [see App. A] n Fair use

Term of Copyright until Public Domain Jeff Cole, Chief, Literary Division Reg/Record Program, U.S. Copyright Office: OETDA 2008 n Author’s lifetime plus 70 years –If multiple authors of joint work, based on last surviving author n Works made for hire, anonymous, pseudonymous –95 years from publication, or 120 years from creation, whichever is shorter n Works published or registered before 1978 –95 years (two-term system with renewal) –Renewal was automatic for works published Lolly Gassaway:

Fair Use Myth It's OK--it's for educational purposes. 1. Purpose and character of use 2. Nature of the work 3. Amount, substantiality 4. Effect Before using someone else's work without permission, weigh ALL 4 FACTORS Checklist [see App. B]

1. Purpose and character of use n Commercial or educational use n For profit or not n Degree of transformation; value added n For criticism, commentary, news reporting, teaching, scholarship, research FAIR USE 1 of 4

2. Nature of the copyrighted work n Worthy of (extensive) protection? n Character of the work? –fact (information) or fiction (imaginative) Published facts weigh in favor of fair use Unpublished original expressions weigh in favor of seeking permission FAIR USE 2 of 4

Is the letter you wrote to your high school sweetheart his/hers to publish? Do you own the copyright to the you receive?

3. Amount and substantiality n Use only what is necessary n Quantity in relation to whole work n Quality in relation to whole work FAIR USE 3 of 4

4. Effect n Harm to potential market or value of a work after a portion has been used separately from the whole FAIR USE 4 of 4

It's publicly available on the web so I can use it without asking. It's OK to use someone else’s work as long as I give proper attribution. It’s like free advertising.

Fair use: CMC Checklist n Did the scales tip in favor of fair use after weighing all 4 factors? n If not –Use library services: Title 17 U.S.C. Sec. 108 EReserve –Ask for permission

Copyright permission services n Copyright Clearance Center – n RSiCopyright – n Association of American Publishers – You asked but they never responded. You don’t have permission.

Libraries and Title 17 U.S.C. Sec. 108 or, Why the library can but you can’t n Open to the public or to others doing research Notice of copyright n Reproduction or distribution without profit n Preservation Reserve Services –Copying articles, chapters –Limiting to university community –Limiting to one term, not sequential Course Management Systems

n Reserve Services n ETDs (Electronic Theses and Dissertations) –Request Publisher's Permission to Use Copyrighted Works. –You don’t have to give away all your rights to get published. n ILL (InterLibrary Loan) and Document Delivery n Center for Alternative Media (moved to Circulation) –Fair Use of educational multimedia –CCUMC Consortium of College and University Media Centers n Photocopy Warning –Post warning re © restrictions (law) University Libraries’ © Resources

Copyright for Instruction n USC Title 17 Section 110 –Limitations of certain performances and displays –Face-to-face classroom settings n Broadened by TEACH Act (Nov. 2, 2002) –Technology Education And Copyright Harmonization –Must have an institutional copyright policy

TEACH: Technology Education and Copyright Harmonization Act n Fair use standards in digital education environment n Modified existing copyright law for: –Accredited nonprofit educational institutions –Mediated instruction –Integral part of class session –Limited to enrolled students –Accurately informed about copyright compliance –Reasonably prevent Retention beyond course Unauthorized further dissemination

TEACH Act: Works allowed DISTANCE LEARNING CLASS IS THE SAME AS IN THE CLASSROOM n Show entire nondramatic literary works –News, poetry, speech, charts, maps n Show entire nondramatic musical works n Everything else in reasonable and limited portions –Plays, movies, operas, TV shows, choreography

TEACH Act--You must not use n Works marketed primarily for distance education n Unlawfully made or acquired copies n Materials meant for additional study outside of class –EReserve, Reserve, Blackboard

TEACH Act--You must n Transmit as an integral part of class session regular part of systematic, mediated instruction n Use copyrighted materials only when directly related to the lesson n Limit access to students enrolled in the course n Have an institutional copyright policy & inform students about © n Block further dissemination

Open Access and Compliance with NIH Public Access Policy

Roads to Open Access n Authors retain their rights until they transfer them exclusively to someone else. –May request and receive permission –May require a contractual addendum n Authors share their rights by permitting non- exclusive use of their copyrighted works. n NIH Public Access Policy n NSF next?

Public Law , Division G, Title II, Section The Director of the NIH shall require that all investigators funded by the NIH submit or have submitted for them to the NLM PubMed Central an e-version of their final, peer- reviewed manuscripts upon acceptance for publication. These shall be publicly available no later than 12 months after the official date of publication provided that the NIH implements the public access policy in a manner consistent with copyright law.

What is required to comply? 1.Retention of copyright sufficient to grant PMC a license for public access. 2.Submission of an accepted article using the PMC website Includes confirmation of the final version 3.Verification of compliance in subsequent applications by including PMC reference numbers Universities become more concerned with faculty publications.

When does the NIH Public Access Policy go into effect? n April 7, 2008: Articles accepted for publication on or after this date must be deposited in PubMed Central. n May 25, 2008: Beginning on this date anyone submitting an application, proposal or progress report to the NIH must include the PubMed Central reference number when citing articles arising from their NIH funded research. (This includes applications submitted to the NIH for the May 25, 2008 and subsequent due dates.)

Options for copyright management: Publish in journals that offer compliance. n Some journals have contracts with NIH PMC. n Some journals will deposit articles in PMC (Elsevier). n University could negotiate directly with publishers.

Options for copyright management: Grantee’s institution could take a limited license for deposit. n Policy issue between university and investigators n License could be automatic, prior to any publication agreement. –Authors need to inform publishers. n Licenses are flexible –Could cover PMC deposit, institutional repository, or other funder mandates, etc.

Options for copyright management: Assist authors in managing copyright themselves. n Risk of institutional consequences for errors or neglect n Ways to assist authors Submission letter at initial contact with journal Addenda with rights retention language n Rights retained can be specific to NIH or as broad as institution needs

NIH suggests language of addenda The [Journal] acknowledges that [Author] retains the right to provide a copy of the final manuscript to the NIH upon acceptance for Journal publication, for public archiving in PubMed Central as soon as possible but no later than 12 months after publication by Journal.

VT Information about NIH compliance n Linda Bucy, OSP, Asst. VP for for Sponsored Programs Administration n Amanda Burks, Office of Uni. Legal Counsel

Gail’s FDI Copyright/OA References n Copyright Management Center (IUPUI) – n Crash Course in Copyright (UTAustin) – n Library of Congress, Copyright Office – n Legal Information Institute (Cornell) – n Stanford University Libraries – n Copyright Registration: OETDA Conference (Jeff Cole) – n TEACH Toolkit – n NIH Public Access Policy – n ARL NASULGC “Institutional Compliance with the NIH Public Access Policy: Ensuring Deposit Rights” –