1. Applying Copyright in Scholarship and Instruction
Gail McMillan
Director, Digital Library and Archives
University Libraries
March 25, 2003
Focus on two main areas
1. Research and scholarship
2. Publication
Instruction

2. 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
Chapters 1 and 3, largely

3. Copyright Law: U.S. Code, Title 17
Section 102: Original authorship stabilized
Section 106: Exclusive rights of creators
Section 107: Fair use, limit exclusive rights
Section 108: Libraries, limit exclusive rights
Section 110: Performance and displays
Section 102: What can be copyrighted
in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be communicated,

4. Who owns the copyright? Creators of original works Creators' assignees
Employers: explicit works for hire
New York Times et al., Petitioners, v. Jonathan Tasini et al.
Greenberg v. National Geographic Magazine
Why officially register your copyright?
Possibly receive greater compensation, with less documentation when filing an infringement suit
USC Title 17 Chapter 2
Creators' assignees
AND
Employers: explicit works for hire
NYT v Tasini
Tasini had a contract to write for the printed newspaper
NYT not allowed to reproduce and resell in other media
Greenberg v. National Geographic
1st 50 years on CD, registered as same as paper versions, I.e., not a derivative work
Court said can’t reformat and sell without permission without changing (e.g., adding value)

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

6. Permission or license to use a copyrighted work is NOT required if
Work is a fact or an idea
Work is in the public domain
Fair use

7. Public Domain Lolly Gassaway: http://www.unc.edu/~unclng/public-d.htm
USC Title 17 Chapter 3

8. Fair Use
Before using someone else's work without permission,balance ALL 4 FACTORS
1. Purpose and character of use
2. Nature of the copyrighted work
3. Amount, substantiality
4. Effect
Title 17 U.S.C. Sec. 107

9. 1. Purpose and character of use
Commercial or educational use
© Myth: It's OK--it's for educational purposes.
For profit or not
Degree of transformation; value added
© Myth: I modified it; now it's mine.
Pretty Woman: 2 Live Crew (Campbell, aka Skywalker, et al.) v. Roy Orbison Estate (Acuff Rose Music, Inc.), 1993/94
For criticism, commentary, news reporting, teaching, scholarship, research
FAIR USE 1 of 4
FACTOR 1: What is the character of the use?
* Nonprofit
* Educational
* Personal
* Criticism
* Commentary
* News reporting
* Parody
* Otherwise "transformative" use
* Commercial

10. 2. Nature of the copyrighted work
Character of the work
for example, fact (information) or fiction (imaginative)
Worthy of (extensive) protection?
FAIR USE 2 of 4
FACTOR 2: What is the nature of the work to be used?
* Fact
* Published
* A mixture of fact and imaginative
* Imaginative
* Unpublished
Again, uses on the left /top tip the balance in favor of fair use. Uses on the right/bottom tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance.
Which way is your balance tipping after assessing the first two factors?

11. 3. Amount and substantiality © Myth: Copying just a little bit is OK.
Use only what is necessary
Quantity and quality in relation to whole work
President Ford's memoirs: Harper & Row, Pub’rs, Inc. (Time) v. Nation Enterprises, 1985
FAIR USE 3 of 4
From
President Ford contracted with Harper & Row to publish his memoirs. Harper & Row then contracted with Time magazine the exclusive right to publish, one week before the book would be shipped, a 7500 word excerpt from the book. The Nation magazine obtained a copy of the Ford manuscript several weeks before Time's publication of the article and published its own 2,250 word article that included quotes, phrases and facts from the manuscript. Following the publication of the Nation article, Time canceled publication of its article and did not pay remaining monies that were due Harper & Row. Harper & Row then proceeded to sued the Nation for copyright infringement.
Weigh 4 fair use factors
1. Purpose and character of use : Commercial pub (Nation)
2. Nature of the copyrighted work : more fact than fiction but it’s up to the author to control publication
3. Amount, substantiality : Substance over-road quantity
amount of the Nation's use of Ford's memoirs was not very large (300 words from memoirs)
4. Effect : The Court stated that the market effect "is undoubtedly the most important element of fair use.”

12. 4. Effect
Harm to potential market or value of a work after a portion has been used separately from the whole
© Myths
Attribution is as good as permission.
It's free advertising.
original by Brad Templeton
FAIR USE 4 of 4
FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
* After evaluation of the first three factors, the proposed use is tipping towards fair use
* Original is out of print or otherwise unavailable
* No ready market for permission
* Copyright owner is unidentifiable
* Competes with (takes away sales from) the original
* Avoids payment for permission (royalties) in an established permissions market

13. © 1997 by [your name] or Copyright by [your name]
© Myths It doesn't say it's copyrighted! It's on the Web so I can use it without asking.
As of March 1, 1989, the copyright warning does not have to appear for a work to be legally copyrighted.
Reminders
© 1997 by [your name] or Copyright by [your name]
ALL RIGHTS RESERVED

14. Consider adding statements that grant permission or restrict use.
“Permission is given to copy this work provided credit is given and copies are not intended for sale."
"Use or inclusion of any portion of this document in another work intended for commercial use will require permission from the copyright owner."
Insert Special Collections’ Conditions of Use clause?

15. Libraries and Title 17 U. S. C. Sec
Libraries and Title 17 U.S.C. Sec. 108 or, Why the library can but you can’t
Open to the public or to others doing research
Reproduction or distribution of the work includes a notice of copyright or that the work may be protected by copyright
Reproduction or distribution without profit
Libraries and Title 17 U.S.C. Sec. 108
Reproduction or distribution without any purpose of direct or indirect commercial advantage
Collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field
Reproduction or distribution of the work includes a notice of copyright that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section

16. University Libraries’ Policies. http://scholar. lib. vt
ETDs (Electronic Theses and Dissertations)
EReserve and Reserve Desk
Interlibrary Loan
Photocopy Services
Alternative Media
CCUMC Consortium of College and University Media Centers
Show each unit’s policies
Only EReserve/Reserve is currently linked

17. ETDs: electronic theses and dissertations. http://scholar. lib. vt
Permission: Receive and Give
Request Permission: Sample letter
Publishers' addresses
Negotiate with publishers
Publishers' Surveys
US Copyright Office
Handout
Permission: Receive and Give
Request Permission: Sample letter
Publishers' addresses
Elsevier's copyright permission policy
Negotiate with publishers
US Copyright Office
Register your copyright
Copyright Information from University Libraries
Publishers' Surveys

18. Copyright for Instruction
USC Title 17 Section 110
Limitations of certain performances and displays
Face-to-face classroom settings
Broadened by TEACH Act (Nov. 2, 2002)
Don’t forget to apply fair use

19. TEACH: Technology Education and Copyright Harmonization Act
Fair use standards in digital education environment
Modifies Title 17 USC Sec. 110 and 112
Mediated instruction
Integral part of class session
Accredited nonprofit educational institution
Limited to enrolled students
Accurately informed about copyright compliance
Reasonably prevent
Retention beyond course
Unauthorized further dissemination
AAUP Legislative News
From November 2002 Update:
Intellectual Property: As one of the last actions of the regular session of the 108th Congress, both houses passed S. 487, the TEACH Act, as an amendment to another bill, HR 2215, which provided supplementary appropriations for the Department of Justice for FY 2002, and became PL: on November 2, The TEACH Act clarifies copyright protection for use in digital distance education, and grew out of a 1999 recommendation by the Copyright office.

20. TEACH Act: Works allowed
Show nondramatic literary works
Show nondramatic musical works
Everything else in reasonable and limited portions
All in amounts as if in face-to-face classroom

21. TEACH Act: Don’t use Works marketed primarily for distance education
Unlawfully made or acquired copies
Materials meant for additional study outside of class
Use EReserve, Reserve, BlackBoard, etc.

22. TEACH Act: Do
Copy only at direction of or under supervision of instructor
Transmit as an integral part of class session that is a “regular part of the systematic, mediated instructional activities”
Use © materials only when directly related to the lesson
Limit to students enrolled in the course

23. Copyright Resources VT Library’s copyright Web site
Copyright Management Center
Kenneth Crews, IUPUI
Crash Course in Copyright
Georgia Harper, University of Texas at Austin
US Copyright Law
Stay Alert to Changing Copyright Legislation
Library of Congress, Copyright Office