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COPYRIGHT IN THE DIGITAL AGE:

Issues for Faculty Members

Hunter CollegeNovember 11, 2010

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What is copyright?

A form of protection provided by federal law to the author of an original work fixed in any tangible medium of expression through which the work can be perceived or communicated.

17 U.S.C. Sec. 102

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But, not just any work of authorship . . .

Original – Facts aren’t protected. Factual compilations may be if there is originality in selection, coordination or arrangement of data.

Fixed in a Tangible Medium of Expression – e.g., improvisational speech, a musical composition or dance choreography is not protected until written down, notated, recorded, etc.

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Sec. 102(a) Categories of Works of Authorship

Literary works (includes computer programs)

Dramatic works Pictoral, graphic &

sculptural works Motion pictures &

other audio visual works

Musical works Pantomime &

choreographic works Sound recordings Architectural works

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What isn’t covered by copyright?

Facts Discoveries and ideas Works in the public domain U.S. Government works

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Who owns the copyright?

The Author: typically the creator of the work

Multiple Authors: if two or more authors create a single work, it will be jointly owned

Collective Work: copyright in collective work is separate from that in the individual contributions

Student work belongs to the student – you should not post it without permission

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Work-For-Hire (Sec. 101)

A contribution to a collective work

Part of a motion picture or other audio visual work

A translation A supplementary

work

An instructional text A test Test answer material An atlas Sound recording A compilation

Work prepared by an employee within the scope of employment OR work that has been specifically ordered or commissioned for use as:

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What are the copyright owner’s exclusive rights?

Reproduce in copies or phonorecords Prepare derivative works Distribute copies or phonorecords Perform publicly. In the case of Sound

Recordings, this right is limited to performing publicly by digital audio transmission (webcasting)

Display publicly

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When does copyright protection attach to a work?

Immediately, automatically, upon fixation in a tangible medium of express

Registration with the Copyright Office is voluntary, but gives owners the right to statutory damages and attorneys fees

Use of a copyright notice is voluntary, but generally forecloses a defense of innocent infringement

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How long does copyright last ? (U.S. Law)

Works published before 1923 are in the public domain.

Works created on or after January 1, 1978 are protected from the date when fixed for a term of life of the author plus 70 years (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.)

See chart prepared by Peter B. Hirtle, Cornell University

(http://copyright.cornell.edu/resources/publicdomain.cfm)

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Copyright Infringement

Any exercise of a copyright owner’s exclusive rights without the permission of the owner

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Penalties and Remedies

Federal courts may: Issue an injunction Impound and destroy infringing articles Award actual damages and lost profits proven

by plaintiff Impose criminal penalties for willful

infringement In the case of registered works, award

attorneys fees and costs. The copyright owner may also elect to receive statutory damages of between $750-$30,000 for any one work, and up to $150,000 in case of willful infringement.

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Innocent Infringer Rules Sec. 504(c)(2) Court may reduce statutory damages to as

little as $200 if infringer was unaware and had no reason to believe that use was an infringement.

Court shall remit statutory damages if the infringer thought that use of copyrighted material was a fair use AND the infringer was an employee of a nonprofit educational institution acting within the scope of employment.

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Limitations on Exclusive RightsSec. 107 - 121

Focus on two:

Certain performances and displays for educational purposes (Sec. 110)

Fair Use (Sec. 107)

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Use in Face-to-Face Teaching Sec. 110(1)

Who: teachers and students at nonprofit educational institutions

What: perform or display copyrighted works, including showing lawfully made copies of movies and videos, playing music, performing plays, showing art works, etc. in the course of face-to-face teaching

Excludes: photocopying of materials for classroom use, making course packs, on-line uses, and any other reproduction, distribution or making of derivative works

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Transmission of Certain WorksSec. 110(2) [TEACH Act]

Who: Accredited nonprofit educational institutions

What: Teachers and students may transmit (e.g., via the internet):

the performance of ALL of a non-dramatic literary or musical work (poetry & short story readings, all music other than opera, musicals and music videos)

REASONABLE AND LIMITED PORTIONS of any other performance (includes all audiovisual works, plays, opera, musicals and other dramatic musical works)

displays of any work in AMOUNTS COMPARABLE TO TYPICAL FACE-TO-FACE displays (includes photographs and other still images)

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Excludes:

works produced or marketed primarily for use as mediated instructional activities transmitted via digital networks works the instructor knows or has reason to believe were not lawfully made or acquired textbooks, course packs and other materials in any media typically purchased by students for their independent use

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Additional Conditions: The performance or display must be:

A regular part of a systematic mediated instructional activity;

Made by, at the direction of, or under the supervision of the instructor;

Directly related and of material assistance to the teaching content; and

For and technologically limited to students enrolled in the class.

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Additional Conditions: CUNY must:

Have policies and provide information to the CUNY community about copyright;

Give notice that the materials used in the course may be protected by copyright;

Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session (not defined in the law) and further distributing them.

In general, this means that controls must be in place so that a student can’t maintain a copy of the work after logging out. The student may return to the work repeatedly during the course, but can’t back up or store the work outside of the course.

Not interfere with technological measures taken by copyright owners that prevent retention and distribution (but see new rule re hacking film clips).

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Digitizing WorksTEACH permits digitizing analog works under these conditions:

The copies are kept only by the institution and used only for the activities authorized by Section 110(2) ; and

The work is not available in a digital version that is free from technological protection.

Example: Section 110(2) authorizes the use of movie clips. If you can’t rip from a DVD, you can digitize the clip from an analog tape, but TEACH doesn’t permit you to digitize the entire tape.

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TEACH ACT IN A NUTSHELL:

The TEACH Act is intended to cover classroom-type instruction delivered on-line. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. For these uses, the instructor must look to the principles of fair use.

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FAIR USE Sec. 107

“The fair use of copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.”

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Fair Use

Supplements TEACH Likely to be most useful in re supplemental

teaching materials not covered by TEACH and materials for which it is difficult to get permission because no ready market or slow response times (i.e., movies and music)

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Four Factor Test

Not all educational uses are “fair use.” Four factors must be considered:

The purpose and character of the use The nature of the copyrighted work The amount and substantiality of the

portion of the work used The effect on the potential market for the

work

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Journal Articles

TEACH doesn’t really apply BEST: Link to an authorized copy, such as

from a journal database licensed by CUNY Don’t pull text from a subscription website

(WSJ) unless Terms of Use permit Don’t use repeatedly without permission –

Copyright Clearance Center Do password protect

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Film Clips New rule allows all college faculty members, and film &

media studies students only, to break encryption on a DVD to incorporate short portions of films into new works for the purpose of criticism or comment, and where the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use

Only motion pictures – not other A/V material Not an entire work “New work” could be podcast lecture with embedded

clips, a DVD with clips for in-class lecture Unstated assumption that this is a “fair use”

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Entire Films

No consensus in university legal community TEACH refers to “reasonable & limited

portions” – legislative history May be hard to justify under fair use – on the

other hand, some argue that if permissible to show in classroom, why isn’t it OK to stream if password protected

Alternative: Make DVD or iTunes download part of reading list

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Photographs & Images

Make sure take from a legal source – look at website terms of use

If relying on Fair Use, consider images freely available for educational use from various image libraries

TEACH would permit “slide show” typical of Art History course in physical classroom, but doesn’t cover creation of library of those images for “out-of-class” study

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Music

TEACH permits use of complete non-dramatic works and clips of other musical works

Clips usually acceptable under Fair Use; less clear with entire works – see Entire Film; consider having students purchase work

Background music for podcasts, etc.: may not be an educational use

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Fair Use Good Practices Link to authorized sites and use freely available

works where possible Own a legal copy or take from authorized sites Remember that website terms of use are contracts Use only as much as you need Include copyright information Password protect if possible Apply technological controls against downloading If you want to use repeatedly, get permission Follow any Hunter rules & guidelines Do the 4-factor analysis: can you justify the use?

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Resources

OGC Copyright Materials: http://www.cuny.edu/about/administration/offices/la/copyright-materials.html

CUNY Libraries (C)opyright @ CUNY: http://www.cuny.edu/libraries/policyguide.html#copyright

Hunter College Libraries Copyright Info: http://library.hunter.cuny.edu/services/faculty/copyright-information

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Jane E. Davis, Esq.Associate General

CounselThe City University of

New York

jane.davis@mail.cuny.edu212-794-5382