1. A Practical Introduction to Copyright James Maynard, PhD Assistant Curator The Poetry Collection jlm46@buffalo.edu

2. Objectives (1)To define the basic principles of copyright and its exceptions. (2)To introduce several electronic and print resources for understanding copyright. (3)To present practical examples of copyright scenarios.

3. Disclaimer These practical remarks are not intended to be legally authoritative.

4. Copyright law Copyright law is defined in Title 17 of the United States Code: http://www.copyright.gov/title17.

5. Copyright: what’s eligible? (1)literary works; (2)musical works, including any accompanying words; (3)dramatic works, including any accompanying music; (4)pantomimes and choreographic works; (5)pictorial, graphic, and sculptural works; (6)motion pictures and other audiovisual works; (7)sound recordings; (8)architectural works.

6. Copyright: what’s ineligible? (1)ideas and facts abstracted from their “tangible medium of expression”; (2)databases of information that don’t meet the criteria of “original”; (3)works by the U.S. government; (4)works that have had their copyright expire. These works are all considered to be in the “public domain” and thus not protected by copyright.

7. Copyright: what rights are included? (1)to reproduce the copyrighted work in copies or phonorecords; (2)to prepare derivative works based upon the copyrighted work; (3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6)in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

8. Copyright: time limits (1)Works created after 1978 are under copyright for the life of the author + 70 years. (Corporate works “made for hire” are protected for whatever is shorter between 95 years after the date of publication or 120 years after the date of creation.) Today, registration is no longer required for protection. (2)Works created between 1923 and 1977 have a copyright status that depends on whether (a) the work appeared under copyright notice, and (b) whether the copyright was renewed (regardless of [a]). Given the fluctuation of copyright law during these years, some complicated situations can occur. See Hirtle, “Copyright Term and the Public Domain in the United States.” (3)Works published before 1923 are in the public domain.

9. Copyright: select exceptions (1)Section 107: Fair use; (2)Section 108: Library copying; (3)Section 109(a): First-sale doctrine; (4)Section 109(c): Public displays; (5)Section 110(1): Displays/performances in face-to-face teaching; (6)Section 110(2): Displays/performances in distance learning; (7)Section 117: Computer software; (8)Section 120: Architectural works; (9)Section 121: Special formats for persons with disabilities.

10. Copyright exception: 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: (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 copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

11. Copyright exception: libraries & archives I (a)Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, except as provided in subsections (b) and (c), or to distribute such copy or phonorecord, under the conditions specified by this section, if: (1)the reproduction or distribution is made without any purpose of direct or indirect commercial advantage; (2)the 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; and (3)the 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.

12. Copyright exception: libraries & archives II (b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if: (1)the copy or phonorecord reproduced is currently in the collections of the library or archives; and (2)any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.

13. Copyright infringement If sued for copyright infringement, the risks include: (1)an injunction barring further use; (2)an impounding of the infringing material and/or equipment; (3)return of profits; (4)statutory damages or actual costs; (5)reimbursement of court costs; (6)criminal liability. Advice for avoiding infringement and minimizing damages: (1)be informed; (2)act in good faith; (3)create a paper trail.

14. Resources for locating copyright holders (1)Writers, Artists, and Their Copyright Holders (WATCH) List: http://tyler.hrc.utexas.edu. (2)Search the U.S. Copyright Office’s catalog of registered works: http://www.copyright.gov/records. (3)Copyright Clearance Center: http://www.copyright.com. (4)Artists Rights Society (ARS): http://www.arsny.com.

15. Orphan works Works for which the copyright holder cannot be identified and located are defined as “orphan works.” For these cases, the Society of American Archivists (SAA) offers a “Statement of Best Practices”: http://www.archivists.org/standards.

16. Other facts about copyright (1)Copyright is separate from ownership and lies in the hand of the author. (2)Today, a work need not be registered with the U.S. Copyright Office nor display a copyright statement to be protected fully under Title 17. (3)Copyrights can be sold or otherwise transferred. (4)Copyright laws differ internationally. (5)A recent counterpart to copyright are the various Creative Commons licenses that encourage and promote the free and legal use of shared works. See http://creativecommons.org.

17. Other online resources For UB Librarians: Scholarly Communications Toolkit on StaffWeb: StaffWeb  Committees  Scholarly Communications  Toolkit UB Libraries: Copyright & Fair Use http://library.buffalo.edu/libraries/aboutus/policies-use/copyright.php UB Libraries: Manage Your Copyright: http://library.buffalo.edu/scholarly/action/copyright.php Copyright and Fair Use – Stanford University http://fairuse.stanford.edu Copyright Advisory Office – Columbia University http://copyright.columbia.edu/permissions Copyright Information Center – Cornell University http://www.copyright.cornell.edu/resources

18. Print resources (1)Crews, Kenneth D. Copyright Law for Librarians and Educators, 2nd ed. Chicago: ALA, 2006. (2)Hirtle, Peter B., Emily Hudson, and Andrew T. Kenyon. Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums. Ithaca: Cornell University Libraries, 2009. (3)Patry, William F. Patry on Copyright. [Eagan, Minn.]: Thomson/West, 2006.

19. Other examples from the Poetry Collection (1)James Joyce (2)NEH-funded audio migration project

20. Questions? James Maynard, PhD Assistant Curator The Poetry Collection jlm46@buffalo.edu