Copyright and Higher Copyright and Higher EducationEducation

in the United States, 1976-in the United States, 1976-

Eileen K. SanerEileen K. SanerAssociated Mennonite Biblical SeminaryAssociated Mennonite Biblical SeminaryElkhart, Indiana, USAElkhart, Indiana, USAMarch 2007March 2007

Copyright Law in the United StatesCopyright Law in the United States

►Authorized by the US ConstitutionAuthorized by the US Constitution►Copyright Act of 1976 modernized Copyright Act of 1976 modernized

legislation.legislation.►Digital Millennium Copyright ActDigital Millennium Copyright Act►Sonny Bono Copyright Extension ActSonny Bono Copyright Extension Act►TEACH ActTEACH Act►Court cases apply the legislation to Court cases apply the legislation to

actual situations.actual situations.

Copyright law gives the “author’ of Copyright law gives the “author’ of a creative work a creative work exclusive rightsexclusive rights for a limited time with certain for a limited time with certain exceptions:exceptions:►reproduce and distribute copies of the reproduce and distribute copies of the

work.work.►create derivative works based on the create derivative works based on the

work.work.►perform and display the work publicly.perform and display the work publicly.

These rights apply to created These rights apply to created works:works:

► literatureliterature►musicmusic►drama drama ►dancedance►visual artvisual art►motion picturesmotion pictures►architectural worksarchitectural works

These rights do These rights do notnot apply to apply to

►factsfacts► ideasideas►conceptsconcepts►processes and proceduresprocesses and procedures►discoveriesdiscoveries►works created by employees of the US works created by employees of the US

governmentgovernment

Literary or artistic creation must beLiterary or artistic creation must be

►““fixed in a tangible means of fixed in a tangible means of expression”expression”

►paper, film, computer disk, artistic paper, film, computer disk, artistic medium.medium.

Since 1978, display of the copyright Since 1978, display of the copyright symbol © is symbol © is notnot required! required!

How is copyright enforced?How is copyright enforced?

►Copyright holders who believe their Copyright holders who believe their rights have been violated take the rights have been violated take the offenders to court.offenders to court.

► Judges interpret the law to determine Judges interpret the law to determine whether indeed there has been a whether indeed there has been a violation.violation.

►Users of copyrighted works watch court Users of copyrighted works watch court decisions and adjust their practices decisions and adjust their practices accordingly.accordingly.

How can you determine whether How can you determine whether an item is protected by copyright?an item is protected by copyright?

►Not a listing of facts (telephone Not a listing of facts (telephone directory)directory)

►““Fixed in a tangible means of Fixed in a tangible means of expression”expression”

►Not in the “public domain”Not in the “public domain”

Public DomainPublic Domain

►Work not subject to copyrightWork not subject to copyright►Work whose term of copyright has expiredWork whose term of copyright has expired

May be freely copied, distributed, May be freely copied, distributed, performed.performed.

When Works Pass into the Public DomainWhen Works Pass into the Public Domainby Laura Gassaway, librarian/lawyerby Laura Gassaway, librarian/lawyer

http://www.unc.edu/~unclng/public-d.htmhttp://www.unc.edu/~unclng/public-d.htm

Who holds the copyright?Who holds the copyright?

►Creator of the workCreator of the work►Publisher who obtained copyright from Publisher who obtained copyright from

creatorcreator►Heirs of the creator who have inherited Heirs of the creator who have inherited

ownershipownership

Examine the article to identify.Examine the article to identify.

Search the internet for contact information.Search the internet for contact information.

Exceptions and Limitations of Exceptions and Limitations of CopyrightCopyright

►Fair useFair use►Reproduction by librariesReproduction by libraries►Distance learning Distance learning ►Performances and displays in face-to-Performances and displays in face-to-

face teaching face teaching ►First saleFirst sale

Fair UseFair Use

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

From Section 107 of the Copyright Act of 1976. From Section 107 of the Copyright Act of 1976.

Four factors the Court must Four factors the Court must consider:consider:

1.1. The The purpose and character of the usepurpose and character of the use, , including whether such use is of a commercial including whether such use is of a commercial nature or is for nonprofit educational purposes;nature or is for nonprofit educational purposes;

2.2. The The naturenature of the copyrighted work; of the copyrighted work;3.3. The The amount and substantialityamount and substantiality of the of the

portion used in relation to the copyright work portion used in relation to the copyright work as a whole; and the effect of the use on the as a whole; and the effect of the use on the potential market or value of the copyrighted potential market or value of the copyrighted work. work.

4.4. The The effect of the use on the potential effect of the use on the potential marketmarket for or value of the copyrighted work. for or value of the copyrighted work.

““Fair Use” is intentionally vague!Fair Use” is intentionally vague!

““The doctrine is flexible, but its The doctrine is flexible, but its application often is uncertain, as it application often is uncertain, as it generally requires consideration of all generally requires consideration of all the facts and circumstances the facts and circumstances surrounding the particular use of the surrounding the particular use of the copyright work at issue. As a result the copyright work at issue. As a result the fair use doctrine has been the subject of fair use doctrine has been the subject of numerous court cases.” numerous court cases.”

Campus Copyright Rights and ResponsibilitiesCampus Copyright Rights and Responsibilities, 2005. p. , 2005. p. 99

How can fair use be applied?How can fair use be applied?

► Checklist for Fair Use (Indiana University) Checklist for Fair Use (Indiana University) www.copyright.iupui.edu/checklist.pdfwww.copyright.iupui.edu/checklist.pdf

► University of Texas Crash Course in University of Texas Crash Course in Copyright (a clever online tutorial)Copyright (a clever online tutorial)www.utsystem.edu/ogc/intellectualproperty/www.utsystem.edu/ogc/intellectualproperty/

cprtindx.htmcprtindx.htm► American Library Association American Library Association

www.ala.org/ala/washoff/WOissues/copyrightb/copywww.ala.org/ala/washoff/WOissues/copyrightb/copyright.htmright.htm

► Copyright Management Center Indiana Copyright Management Center Indiana University/Purdue UniversityUniversity/Purdue Universityhttp://www.copyright.iupui.edu/http://www.copyright.iupui.edu/

PurposePurpose

Favoring Fair UseFavoring Fair Use

Teaching (including multiple Teaching (including multiple copies for classroom use)copies for classroom use)

Research, scholarshipResearch, scholarship Criticism, commentCriticism, comment Nonprofit educational Nonprofit educational

institutioninstitution Transformative / productive Transformative / productive

useuse Restricted accessRestricted access

Opposing Fair UseOpposing Fair Use

Commercial activityCommercial activity Profiting from the useProfiting from the use EntertainmentEntertainment Bad-faith behaviorBad-faith behavior Denying credit to original Denying credit to original

authorauthor

NatureNature

Favoring Fair UseFavoring Fair Use

Published workPublished work Factual or nonfiction basedFactual or nonfiction based Important to favored Important to favored

educational objectiveseducational objectives

Opposing Fair UseOpposing Fair Use

Unpublished workUnpublished work Highly creative work (art, Highly creative work (art,

music, novels, films)music, novels, films) FictionFiction

AmountAmount

Favoring Fair UseFavoring Fair Use

Small quantitySmall quantity Portion used is not central Portion used is not central

or significant to entire workor significant to entire work Amount is appropriate for Amount is appropriate for

favored educational purposefavored educational purpose

Opposing Fair UseOpposing Fair Use

Large portion or whole work Large portion or whole work is usedis used

Portion used is central to Portion used is central to work or “heart of the work”work or “heart of the work”

More than necessary for More than necessary for educational purposeeducational purpose

EffectEffect

Favoring Fair UseFavoring Fair Use

User owns lawfully acquired User owns lawfully acquired or purchased copy of or purchased copy of original workoriginal work

One or few copies madeOne or few copies made No significant effect on the No significant effect on the

market or potential market market or potential market for copyrighted workfor copyrighted work

No similar product marketed No similar product marketed by the copyright holderby the copyright holder

Lack of licensing Lack of licensing mechanismmechanism

Opposing Fair UseOpposing Fair Use

Could replace sale of Could replace sale of copyrighted workcopyrighted work

Significantly impairs market Significantly impairs market for work or its derivativefor work or its derivative

Reasonably available Reasonably available licensing mechanismlicensing mechanism

Affordable permission Affordable permission available for using workavailable for using work

Numerous copies madeNumerous copies made Copy made publicly Copy made publicly

accessible such as on the accessible such as on the webweb

Repeated or long-term useRepeated or long-term use

Guidelines for Classroom Copying Guidelines for Classroom Copying for Educational Institutions, 1976for Educational Institutions, 1976

►Developed by authors, publishers and Developed by authors, publishers and educators.educators.

►Developed along with the law but not Developed along with the law but not included in the law.included in the law.

►Excludes sale for profit, more than one Excludes sale for profit, more than one semester, more than 9 times in a semester, more than 9 times in a course.course.

►Defined brevity, spontaneity, Defined brevity, spontaneity, cumulative effect.cumulative effect.

CoursepacksCoursepacks

►Photocopied course readings.Photocopied course readings.►Some educators say it is fair use.Some educators say it is fair use.►Publishers say copying is pre-Publishers say copying is pre-

meditated, multiple copies, substitutes meditated, multiple copies, substitutes for sale of textbooks and is for sale of textbooks and is notnot fair use. fair use.

►Courts have found for-profit copy shops Courts have found for-profit copy shops to be in violation of the law.to be in violation of the law.

►No academic institution has ever been No academic institution has ever been taken to court.taken to court.

Electronic Reserves Electronic Reserves

►Scanned documents on course Scanned documents on course website; use limited to registered website; use limited to registered students.students.

►Educators say it is fair use.Educators say it is fair use.►Publishers claim permission is Publishers claim permission is

necessary and require payment of necessary and require payment of fees.fees.

Cornell University, New YorkCornell University, New York

►Fall 2006, Association of American Fall 2006, Association of American Publishers threatened to sue the Publishers threatened to sue the University. University.

►AAP claimed that professors were AAP claimed that professors were posting long passages from expensive posting long passages from expensive textbooks on the internet without textbooks on the internet without limiting access.limiting access.

►Students could avoid purchasing $100 Students could avoid purchasing $100 textbooks so publisher loses money.textbooks so publisher loses money.

University RespondsUniversity Responds

►Digitizing is copying and is subject to Digitizing is copying and is subject to copyright law like a printed coursepack.copyright law like a printed coursepack.

►Provide checklist with fair use factors.Provide checklist with fair use factors.►Define “amount” as less than 10%. Define “amount” as less than 10%. ►Limit online access to students.Limit online access to students.►Urged linking to legally provided copies Urged linking to legally provided copies

such as subscription databases.such as subscription databases.►Tell students not to make illegal copies.Tell students not to make illegal copies.

Statements Put on Scanned Statements Put on Scanned Documents Documents

to Clarify Fair Useto Clarify Fair Use

► This electronic document is provided in This electronic document is provided in accordance with the Fair Use guidelines of U.S. accordance with the Fair Use guidelines of U.S. Copyright Act (Title 17 of the United States Copyright Act (Title 17 of the United States Code).Code).

► These materials are only for the use of students These materials are only for the use of students enrolled in this course for purposes associated enrolled in this course for purposes associated with this course and may not be retained or with this course and may not be retained or further disseminated.further disseminated.

► Use of these materials by anyone not enrolled Use of these materials by anyone not enrolled in this course is a violation of copyright law.in this course is a violation of copyright law.

What should a seminary do? (1)What should a seminary do? (1)

► Discourage copying as substitute for Discourage copying as substitute for purchase.purchase.

► Out-of-print is Out-of-print is notnot “public domain”. “public domain”.► Most books can be purchased online.Most books can be purchased online.► Set up routines for requesting permission Set up routines for requesting permission

when fair use does not apply.when fair use does not apply.► Always request permission for “all future uses Always request permission for “all future uses

for educational purposes.”for educational purposes.”► Establish agreements with Christian Establish agreements with Christian

publishers to streamline the process. publishers to streamline the process.

What should a seminary do? (2)What should a seminary do? (2)

►When the author is the copyright holder, When the author is the copyright holder, contact him/her directly and request use contact him/her directly and request use without payment.without payment.

► Use permissions services (Copyright Use permissions services (Copyright Clearance Center).Clearance Center).

► Acquire and promote online resources.Acquire and promote online resources.► Put materials on library reserve shelf when Put materials on library reserve shelf when

permissions are too expensive.permissions are too expensive.

What should a seminary do? (3)What should a seminary do? (3)

► Use passwords to limit access to course Use passwords to limit access to course participants.participants.

► Educate students and faculty.Educate students and faculty.► Stress need to financially support for Stress need to financially support for

authors and publishers.authors and publishers.► Urge faculty to retain the right to copy their Urge faculty to retain the right to copy their

own material for class use.own material for class use.► Establish an institutional policy so that all Establish an institutional policy so that all

copying is done in “good faith”, with reason copying is done in “good faith”, with reason to believe that it is within fair use.to believe that it is within fair use.