owning copyright and using copyrighted works (november 14, 2012)

OWNING © AND USING © WORKS Kevin L. Smith, Duke University William M. Cross, NC State University

Start with ownership.

How do you get ©? • © is automatic

• No need for registration, renewal or even © symbol. • © vests as soon as original expression is fixed in tangible form. • Most be original, but standard is very low. • Text, images, film, software, architecture, choreography & sculpture

all protected. • Ideas, “useful” articles not protected by ©.

Who owns ©? • It’s good to be an author:

• “Copyright… vests initially in the author or authors of the work” • Able to transfer or license the rights

Joint ownership • “The authors of a joint work are co-owners of © in the

work.” • Co-owners have an equal & undivided share in the bundle of rights. • Lots of opportunity for conflict!

Work made for hire • If a work is “made for hire” the employer is considered the

author. • Two ways:

• Created by a “regular employee.” • Created by an independent contractor

What do you get? • Six exclusive rights:

• Reproduction • Distribution • Public performance • Public display • Right to prepare derivative works • Right to control digital transmission

of a sound recording.

About those rights • It is a bundle

• Can be divided up to be sold or licensed • Assignment v. license

• The rights are limited • By time – copyright ends • By scope – each right subject to exceptions

• All are subject to fair use.

Using ©

“If I have seen further it is by standing on the

shoulders of giants.”

- Robert Merton (1965) and

- Isaac Newton (1676) and

- Bernard of Chartres (1159) and . . .

Specific Exceptions: Instruction

Perform or display A legal copy As part of classroom* instruction

17 U.S.C. 110(1): not a violation of copyright . . .

“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 . . . ”

Specific Exceptions: Library Copying

Copies for Users and ILL Preservation

• “Private study and

research”

• Becomes property of users

• Copyright notice

Unpublished works • In the library’s collection • For preservation or security

Published works

• “damaged, deteriorating, lost, or stolen or format is obsolete”

• “reasonable investigation” and unused replacement not available at a “fair price”

Fair Use

• A general exception to copyright monopoly

• “Fair use is for everybody”

• “An exception where the value you add to society outweighs the harm done to the rightsholder.”

That Sounds Kind of Vague . . . Four Factors

(not a checklist or vote) 1. What are you doing?

2. What are you using?

3. How much are you using?

4. Is your work a substitute for the original?

Purpose and Character

Educational For/Non-profit

• Does your use serve society, or just your own interests?

• Are you making money off of someone else’s work?

Nature of the Original

Private or Public? Fact or Fiction?

Is it already widely-available (like a newspaper article) or locked away (like a diary)

Can anybody see it (like a tree) or only the imagination of the author (like Emily Dickenson’s “poem lovely as a tree”)

Amount and Substantiality

• Less is better but . . .

• Not just how much but how much do you need for your good purpose?

• Example: for a book review 1-2 sentences may do, but for art critique you may need the entire image

A Substitute for the Original?

• “Market harm” but more about substitution vs. new contribution

• Are you just free-riding or moving the conversation forward?

Putting It All Together: Transformative Use

• The trend in modern judicial analysis

• Synthesizes all four factors

• Does your use recontextualize and add value?

• Examples: • commentary and critique as with parody • Thumbnails to organize images and aid in finding

Example: E-Res @ GSU

Purpose and Character: strongly favors nonprofit,

educational use

Nature of Original: favors use of non-fiction

Amount & Substantiality:

favors use of 10%/one chapter

Market Harm: favors user unless “readily

available” at a “reasonable” price in a “convenient” format

Tools: Code of Best Practices

Questions

?

Coming December 5 at 2pm!

“Recent Developments in Library ©” •New cases!

•New rules!

•More powerpoint!