copyright and fair use – what clinicians and educators need to know october 19, 2006 robert b....

Copyright and Fair Use – Copyright and Fair Use – What Clinicians and EducatorsWhat Clinicians and Educators

Need to KnowNeed to Know

October 19, 2006October 19, 2006

Robert B. DoninRobert B. DoninGeneral CounselGeneral CounselDartmouth CollegeDartmouth College

(603) 646-0101(603) [email protected]@dartmouth.edu

Bill GarrityBill GarrityDirector of Biomedical LibrariesDirector of Biomedical LibrariesDartmouth College/DMS & DHMCDartmouth College/DMS & DHMC

(603) 650-1662(603) [email protected]@dartmouth.edu

© 2006 Trustees of Dartmouth College© 2006 Trustees of Dartmouth College

CME Learning ObjectiveCME Learning Objective

Know the basics of copyright and fair use as Know the basics of copyright and fair use as they apply to academic environmentsthey apply to academic environments

CME AccreditationCME Accreditation

““The Dartmouth-Hitchcock Medical Center is The Dartmouth-Hitchcock Medical Center is accredited by the Accreditation Council for accredited by the Accreditation Council for Continuing Medical Education to provide Continuing Medical Education to provide

continuing medical education for continuing medical education for physicians.”physicians.”

Conflict of InterestConflict of Interest

Neither Bob Donin nor Bill Garrity has any Neither Bob Donin nor Bill Garrity has any financial relationship to those in a position financial relationship to those in a position to control the content of this presentationto control the content of this presentation

This presentation has no commercial This presentation has no commercial supportsupport

IntroductionsIntroductions

1. What is a Copyright?1. What is a Copyright?

Exclusive right of creator of original “work of Exclusive right of creator of original “work of authorship” “fixed in any tangible medium of authorship” “fixed in any tangible medium of expression” to exercise certain controls over that expression” to exercise certain controls over that workwork

Copyright vs. Physical PropertyCopyright vs. Physical Property – – © purely intangible - should not be confused with © purely intangible - should not be confused with

material objectmaterial object

Example: Garrity purchases CD-ROM copyrighted by Example: Garrity purchases CD-ROM copyrighted by Donin Corp. Garrity can lawfully use CD-ROM and Donin Corp. Garrity can lawfully use CD-ROM and sell to Katz, but may not make and distribute copies sell to Katz, but may not make and distribute copies without Donin Corp’s permissionwithout Donin Corp’s permission

2. What can be Copyrighted?2. What can be Copyrighted?

““Works of authorship”Works of authorship”Examples:Examples:literary works (books, articles, fiction and non-literary works (books, articles, fiction and non-fiction)fiction)musical works (both score and lyrics)musical works (both score and lyrics)pictorial/graphic works, art, sculpture, photographspictorial/graphic works, art, sculpture, photographsweb pages, motion pictures, audiovisual works, web pages, motion pictures, audiovisual works, video gamesvideo gamescomputer softwarecomputer softwaresound recordingssound recordings

3. What Cannot Be Copyrighted?3. What Cannot Be Copyrighted?

Ideas, procedures, conceptsIdeas, procedures, concepts

FactsFacts

United States Government worksUnited States Government works

Titles and simple phrasesTitles and simple phrases

Out-of-copyright works (term expired - see Out-of-copyright works (term expired - see below) below)

4. Who Owns the Copyright?4. Who Owns the Copyright?

General ruleGeneral rule: natural person who is author/creator: natural person who is author/creatorcopyright can be jointcopyright can be joint

ExceptionException: in case of “work made for hire” copyright : in case of “work made for hire” copyright belongs to employer of creator:belongs to employer of creator:

prepared by employee within the scope of employment; prepared by employee within the scope of employment; ororprepared by independent contractor per written prepared by independent contractor per written agreement which identifies the work as a “work made for agreement which identifies the work as a “work made for hire” AND work falls within one of nine categories listed hire” AND work falls within one of nine categories listed in Copyright Actin Copyright Act

Exception to the exceptionException to the exception: by College policy, works : by College policy, works prepared by Dartmouth teaching faculty generally are not prepared by Dartmouth teaching faculty generally are not considered “works made for hire”considered “works made for hire”

5. How/When Does an Author 5. How/When Does an Author Obtain a Copyright?Obtain a Copyright?

© arises automatically by law© arises automatically by law

© arises at instant of creation -- as soon © arises at instant of creation -- as soon as work is “fixed in any tangible medium of as work is “fixed in any tangible medium of expression”expression”

Isn’t Registration with the Isn’t Registration with the Copyright Office in Washington, Copyright Office in Washington,

D.C., RequiredD.C., Required??

No - registration only required to bring No - registration only required to bring infringement action for statutory damages infringement action for statutory damages

6. Is It Necessary to Put a 6. Is It Necessary to Put a Copyright Notice on the Work?Copyright Notice on the Work?

Not any more - works created since March Not any more - works created since March 1, 1989, don’t need affixed notice (e.g., © 1, 1989, don’t need affixed notice (e.g., © 2006 Trustees of Dartmouth College) but 2006 Trustees of Dartmouth College) but notice is still advisable notice is still advisable

““Copyright” or “Copr.” may be used Copyright” or “Copr.” may be used instead of “©” instead of “©”

7. What is the Period of Copyright 7. What is the Period of Copyright Protection?Protection?

Works owned by individuals: life plus 70 yearsWorks owned by individuals: life plus 70 years

Works-made-for-hire: 95 years from date of first Works-made-for-hire: 95 years from date of first publication, or 120 years from date of creation, publication, or 120 years from date of creation, whichever is shorterwhichever is shorter

Eldred v. Ashcroft: challenge to 1998 extension Eldred v. Ashcroft: challenge to 1998 extension of term by 20 years – Supreme Court rejectedof term by 20 years – Supreme Court rejected

8. What are the Exclusive Rights of 8. What are the Exclusive Rights of the Copyright Owner?the Copyright Owner?

Five exclusive rights:Five exclusive rights:

1.1. To reproduce work in copiesTo reproduce work in copies

2.2. To prepare derivative works (i.e., To prepare derivative works (i.e., adaptations) based on copyrighted workadaptations) based on copyrighted work

3.3. To distribute copies of workTo distribute copies of work

4.4. To perform work publicly (i.e., to recite, To perform work publicly (i.e., to recite, play, dance, or act it)play, dance, or act it)

5.5. To display work publicly To display work publicly

9. Are the Exclusive Rights of 9. Are the Exclusive Rights of Copyright Absolute?Copyright Absolute?

No - Copyright Act contains exceptions that No - Copyright Act contains exceptions that allow limited use of copyrighted work without allow limited use of copyrighted work without owner’s permissionowner’s permission

Most important exceptions:Most important exceptions:

Fair useFair use

““Instructional exemption”Instructional exemption”

““Classroom copying” guidelinesClassroom copying” guidelines

Exceptions to Copyright Owner’s Exclusive Rights Exceptions to Copyright Owner’s Exclusive Rights (cont’d)(cont’d)

Fair Use: Fair Use: Limited use by person other than Limited use by person other than copyright owner for purposes such copyright owner for purposes such

as as criticism, teaching, scholarship, or criticism, teaching, scholarship, or researchresearch

Four-part test:Four-part test:1.1. Purpose and character of use (including Purpose and character of use (including

commercial vs. non-profit educational)commercial vs. non-profit educational)2.2. Nature of copyrighted workNature of copyrighted work3.3. Amount and substantiality of portion used vs. Amount and substantiality of portion used vs.

work as wholework as whole4.4. Effect on potential market for or value of workEffect on potential market for or value of work


““Instructional Exemption”: Instructional Exemption”:

Performance or display of a work by Performance or display of a work by teachers or students in the course of face-teachers or students in the course of face-to-face teachingto-face teaching


““Classroom Copying” Guidelines:Classroom Copying” Guidelines:

Guidelines agreed upon by the publishing industry Guidelines agreed upon by the publishing industry and educational organizations at time of the 1976 and educational organizations at time of the 1976 Copyright Act establish “safe harbor” for classroom Copyright Act establish “safe harbor” for classroom copying for educational use, but provide limited copying for educational use, but provide limited help because of “brevity” and “spontaneity” help because of “brevity” and “spontaneity” requirements requirements


What do the Classroom Guidelines Permit?What do the Classroom Guidelines Permit?

Guidelines are on Dartmouth website at: Guidelines are on Dartmouth website at: http://www.dartmouth.edu/copyright/http://www.dartmouth.edu/copyright/

Basic requirements:Basic requirements:

SpontaneitySpontaneity““The inspiration and decision to use the work and the moment of The inspiration and decision to use the work and the moment of its use . . . are so close in time that it would be unreasonable to its use . . . are so close in time that it would be unreasonable to expect a timely reply to a request for permission.”expect a timely reply to a request for permission.”

BrevityBrevity

Cumulative effectCumulative effect

10. Are Databases Protected by 10. Are Databases Protected by Copyright?Copyright?

Facts not protectedFacts not protected

Compilation may be protected, but Compilation may be protected, but standard is strict one:standard is strict one: originality in choosing, grouping or organizing originality in choosing, grouping or organizing

factsfacts only elements added by author - not only elements added by author - not

underlying facts - are protectedunderlying facts - are protected

11. Peer-to-Peer File Sharing11. Peer-to-Peer File Sharing

Copying of commercial music and video files without permission of Copying of commercial music and video files without permission of the copyright holder for personal enjoyment is generally illegalthe copyright holder for personal enjoyment is generally illegal

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, LtdMetro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (2005) – . (2005) – File-sharing services such as Grokster may be held liable for File-sharing services such as Grokster may be held liable for copyright infringement committed by users of their software.copyright infringement committed by users of their software.

Case turned on Grokster’s “principal, if not exclusive, intent to bring Case turned on Grokster’s “principal, if not exclusive, intent to bring about infringement,” not on the mere fact that it provided file-sharing about infringement,” not on the mere fact that it provided file-sharing technology technology

Not all file-sharing is illegalNot all file-sharing is illegal Sharing with permission of copyright ownerSharing with permission of copyright owner Fair useFair use

See See Peer-to-Peer File Sharing and Copyright LawPeer-to-Peer File Sharing and Copyright Lawhttp://www.dartmouth.edu/copyright/peer2peer/http://www.dartmouth.edu/copyright/peer2peer/

12.12. If What I Want to Do Is Not Covered by If What I Want to Do Is Not Covered by Any of the Exceptions, How Do I Get Any of the Exceptions, How Do I Get

Permission to Reproduce or Distribute Permission to Reproduce or Distribute Someone Else’s Copyrighted Work?Someone Else’s Copyrighted Work?

1.1. Check the Dartmouth Library database of Check the Dartmouth Library database of licensed materials; orlicensed materials; or

2.2. Find the copyright owner and ask permission; Find the copyright owner and ask permission; oror

3.3. Obtain permission through a clearing house Obtain permission through a clearing house such as Copyright Clearance Center.such as Copyright Clearance Center.

How Do I Get Permission to Reproduce or How Do I Get Permission to Reproduce or Distribute Someone Else’s Copyrighted Distribute Someone Else’s Copyrighted

Work?Work?

1.1. Check the Dartmouth Library database of Check the Dartmouth Library database of licensed materialslicensed materials

Dartmouth may already have rights to Dartmouth may already have rights to reproduce the workreproduce the work


Work? (cont’d)Work? (cont’d)

2.2. Find the copyright owner and ask Find the copyright owner and ask permissionpermission

Permission may be oral or written; written is Permission may be oral or written; written is betterbetter

No special form for request, but include: No special form for request, but include: publication you wish to use; precise publication you wish to use; precise pages/chapters/photos, etc. you wish to use; pages/chapters/photos, etc. you wish to use; number of copies you want to make; purpose of number of copies you want to make; purpose of use (e.g., “a handout in a course on use (e.g., “a handout in a course on microbiology at Dartmouth Medical School”)microbiology at Dartmouth Medical School”)

Copyright owner may charge fee, but you may Copyright owner may charge fee, but you may be able to negotiate low/no fee be able to negotiate low/no fee


Work? (cont’d)Work? (cont’d)

3.3. Obtain permission through a clearing Obtain permission through a clearing house such as Copyright Clearance house such as Copyright Clearance Center (Center (www.copyright.comwww.copyright.com))

Web-based system for obtaining permission Web-based system for obtaining permission Open an accountOpen an account Standard fees Standard fees

Common MisconceptionsCommon Misconceptions

All educational uses are fair useAll educational uses are fair use

Giving authors credit absolves infringementGiving authors credit absolves infringement

If an author dies, his/her work then moves into If an author dies, his/her work then moves into public domainpublic domain

Adding something to the copyrighted work Adding something to the copyrighted work precludes infringementprecludes infringement

Works that do not have a copyright notice are in Works that do not have a copyright notice are in the public domainthe public domain

Material on the web is in the public domainMaterial on the web is in the public domain

Copyright ResourcesCopyright ResourcesDartmouth CollegeDartmouth College

http://www.dartmouth.edu/copyright/http://www.dartmouth.edu/copyright/

University of Texas University of Texas ““Crash Course in Copyright”Crash Course in Copyright”http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#tophttp://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top

Indiana UniversityIndiana Universityhttp://copyright.iupui.edu/http://copyright.iupui.edu/

U.S. Copyright OfficeU.S. Copyright Office http://lcweb.loc.gov/copyrighthttp://lcweb.loc.gov/copyright

Copyright Resources (con’t)Copyright Resources (con’t)

Cornell UniversityCornell University

http://http://www.copyright.cornell.eduwww.copyright.cornell.edu//

““Campus Copyright: Rights and Responsibilities” Campus Copyright: Rights and Responsibilities”

ARL, AAU, AAUP, and AAPARL, AAU, AAUP, and AAP

http://www.arl.org/info/frn/copy/CampusCopyright05.pdfhttp://www.arl.org/info/frn/copy/CampusCopyright05.pdf

““Copyright Law for Libraians and Educators,” Copyright Law for Libraians and Educators,” Kenneth D. Crews, 2Kenneth D. Crews, 2ndnd ed., ALA, 2006 ed., ALA, 2006

copyright and fair use – what clinicians and educators need to know october 19, 2006 robert b....

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