Karen KitchensIntellectual Property Librarian

Wyoming State LibrarySeptember 2012

This presentation is for informational informational purposes onlypurposes only and is not legal advice.

• Law & Guidelines Overview• Exclusive Rights • Scope & Protection• Copyright Term • Exceptions & Limitations• Digital Millennium Copyright Act (DMCA)• Technology, Education, and Copyright Harmonization

(TEACH) Act• Software (Briefly!) • Copyright Permission/Copyright Clearance Center

Congress has the power, “…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and

Discoveries.” - U.S Constitution, Article I, Section 8, Clause 8

United States Code Title 17

Copyright Timeline: History of Copyright in the United States Copyright Timeline: History of Copyright in the United States

Association of Research LibrariesAssociation of Research Libraries

•1790 – Copyright Act of 1790•1886 – Berne Convention

U.S. became a signatory in 1988

•1909 – Revision of Copyright Act 2828 years plus 2828 years renewal

•1976 – Revision of Copyright ActLife plus 5050 yearsFair Use and First Sale Doctrines codifiedSection 108: Libraries and Archives

• 1994 – Conference on Fair Use

• 1998 - Sonny Bono Term Extension (Oct 27, 1998)

Life plus 70 70 years

• 1998 – Digital Millennium Copyright Act (Oct 28, 1998)

• 2002 – Technology, Education and Copyright Harmonization Act

17 USC §10617 USC §106

•Creator (author, artist, composer, etc.) exclusive right to:

ReproducePrepare derivative worksDistribute copies by sale (or other transfer of

ownership), rental, lease, or lendingPerform a work publiclyDisplay a work publicly

•Prescribed amount of time.

• Literary works.•Musical works.•Dramatic works.•Choreographed works.•Pictorial, graphics and multimedia.•Motion Pictures and audio visual works.•Sound recordings.•Architectural works.•Computer software.

17 USC § 10217 USC § 102• Original - the work must be unique and not a

copy.

• Fixed - the work must be written or recorded in a tangible manner (digital works are considered tangible).

• Automatic - in force when the work is fixed.

• Copyright Notice ©© symbol NOTNOT required.

17 USC § 10217 USC § 102Copyright does NOTNOT protect:

• Facts

• Ideas, Principles, Concepts

• Names, Titles

• Procedures, Processes

• Works prepared by the federal government.

• Works that are in the public domain.

17 USC § 301-30517 USC § 301-305

U.S. Copyright Office Circular 92U.S. Copyright Office Circular 92

Works published on or after Jan 1, 1978:

• Individuals:Individuals: Life plus 70 70 years for anything on or after 1978.

• Joint: Joint: Life of the last surviving author plus 7070 years.

Works published before 1978 and after 1923 are protected for up to 9595 years. (28 year term/67 year renewal)

Copyright Term and the Public Domain in the United StatesCornell University

• Public Domain• Fair Use• Libraries and Archives• Educational Exceptions

17 USC § 107 Fair Use 17 USC § 108 Libraries and Archives 17 USC § 110 Educational Exceptions –

Performances and Displays

• Expired copyright.

• Failed to meet copyright requirements.

• Author deliberately places in Public Domain. 

• Federal Documents

Generally - works published before 1923before 1923.

Creative Commons

17 USC § 10717 USC § 107

Broad exception that allows people to use a work without permission in certain

circumstances.

• PurposePurpose – education vs. commercial

• NatureNature – fact vs. fiction

• AmountAmount – and substantiality

• EffectEffect – on market or value

Guidelines published by Ad Hoc Committee on Copyright Law Revision, Author-Publisher

Group, March 19, 1976.

These are guidelinesguidelines!!

NOTNOT in Copyright Law

Single Copying for TeachersSingle Copying for Teachers

•ChapterChapter from a book.

•ArticleArticle from a periodical or newspaper.

•Single of a short story, essay, or poem.

•Chart, graph, diagram, picture or cartoon.

Multiple Copies for TeachersMultiple Copies for Teachers

•Meet test of brevitybrevity.

•Meet test of spontaneityspontaneity.

•Meet test of cumulative effectcumulative effect.

•Each copy includes notice of copyright.

Copyright Circular 21

Definition:Definition:

• PoetryPoetry = ≤ 250 words.

• Prose Prose = CompleteComplete article, if < 2,500 words. ExcerptExcerpt of ≤ 1,000 words or 10%.

• Illustration Illustration = One chart, graph, diagram, cartoon or picture per book.

• Special Works Special Works = Poetry, prose which combine words with illustrations, ≤ 2500 words.

Definition:Definition:

• Who Who = Individual teacher must initiate.

• When When = Decision to copy close to the time of use.

Definition:Definition:

• OneOne course.

• OneOne short poem, article, story, essay or twotwo excerpts from same author.

• ≤ three three from collective work or one periodical volume.

• ≤ ninenine items copied in multiples per course during one class term.

Exempt:Exempt: Current news periodicals and newspapers

NOTNOT

•Create, replace, or substitute for anthologies, compilations or collective works.

•Copy from “consumable” works.

•Substitute for purchasing.

•Same item by same teacher repeatedly.

•Charge student beyond cost of copying.

17 Title § 109(a)17 Title § 109(a)

First Sale DoctrineFirst Sale Doctrine

Enables libraries to lend books and other resources.

17 Title § 10817 Title § 108

One Copy One Copy

(a) …no more than one copy one copy or phonorecordphonorecord of a work (with exceptions) or distribute the copy if:

1)Made without any purpose of direct or indirect commercial advantage.

2)Open to the public.

3)Includes a notice of copyright.

17 Title § 10817 Title § 108

Three Copies of an Unpublished WorkThree Copies of an Unpublished Work

(b) … three copies of unpublished work for purposes of preservation and security preservation and security (also open to the public)

If 1) Copy is currently in collection.

And2) Copy in digital format is not otherwise distributed in that format.

And 3) Copy is not made available to the public in that

format outside library or archives.

17 Title § 10817 Title § 108

Three Copies of a Published WorkThree Copies of a Published Work

(c) … duplicated solely for the purpose of replacement… that is damaged, deteriorating, lost or stolen, or if existing format is obsoleteobsolete.

If

1) Unused replacement cannot be obtained at reasonable price.

And2) Copy in digital format is not made available to the public

in that format outside library or archives in lawful possession.

17 Title § 10817 Title § 108

Interlibrary LoanInterlibrary Loan

(d), (e) … request made from another library or archives of copyrighted collection may be made

If

1) Copy becomes the property of the user for private study, scholarship, or research

And

2) Warning of copyright displayed prominently on ILL order form.

CONTU Guidelines 1978CONTU Guidelines 1978

Interlibrary LoanInterlibrary Loan

• Materials < fivefive years old.• ≤ fivefive articles from one periodical per year.• Requests must have copyright compliance statement.• ≤ sixsix copies of articles/chapters/small portions may be made from a non-periodical.

•Face to Face Instruction•Music Materials GuidelinesGuidelines

Digital Millennium Copyright Act (DMCADMCA)

Technology, Education and Copyright Harmonization Act (TEACHTEACH)

•Digital Education•Software

17 Title 11017 Title 110

Face to Face InstructionFace to Face Instruction

•Nonprofit educational institution.

•Teaching and learning take place at same time.

•All performances and displays allowed.

•Instructional NOT NOT entertainment purposes.

•Materials must be legally acquired.

•Teaching must take place in a classroom.

Music Materials – Guidelines Music Materials – Guidelines U.S. Copyright Office Circular 21U.S. Copyright Office Circular 21

• EmergencyEmergency copying to replace purchased copies.

• Copies of excerptsexcerpts; in no case more than 10% of the whole work.

• Purchased copies may be edited or simplified, not disturbing the fundamental character fundamental character of the work.

• Single copy of a sound recording for evaluation or evaluation or rehearsal purposesrehearsal purposes and retained by the institution or teacher.

1998 Digital Millennium Copyright Act (DMCA)

•Prohibits the circumvention of technological protection measures.

•Sets limitations on copyright infringement liability for OSPs.

•Expands existing exemption for copying computer programs.

• Updates rules & procedures for archival archival preservationpreservation.

• Mandates study of distance education activities in networked environments.

• Mandates study of the effects of anti-circumvention protection rules on the "first sale" "first sale" doctrine.

Title I: Prohibitions On Circumvention Of Protection Title I: Prohibitions On Circumvention Of Protection TechnologiesTechnologies:

•Breaking a technological protection measure that controls access.

•Manufacture of device, or offering of service, designed to break an effective "technological protection measure”.

•Manufacture of device, or offering service, designed to break technologies meant to protect the rights of the copyright holder.

17 Title 1201 17 Title 1201

Exemptions for Nonprofit Libraries, Archives and Educational Institutions

(d) May circumvent, to review in good faith good faith for purpose of determining purchase.

• Numerous qualifiers.

• Serious penalties for misapplication.

Use with caution.Use with caution.

Title II: Limitations on Online Service Provider (OSP) Title II: Limitations on Online Service Provider (OSP) Liability:Liability:

•Exempts OSP or carrier from copyright liability because of content by a user.

•Establishes a means for OSP to avoid infringement liability due to storage of infringing information on an OSP's own computer system, or the use of "information location tools" and hyperlinks.

Title IV: Digital PreservationTitle IV: Digital Preservation

•Authorized institutions may make ≤ threethree copies.

•Electronically "loan" "loan" to other qualifying institutions.

•Permit preservation when existing format of the work becomes obsoleteobsolete.

17 Title § 108 (c) 17 Title § 108 (c)

Digital transmission of copyrighted-protected content for nonprofit, educational purposes.

“Participants in authorized distance education distance education courses and programs are not liable for

infringement for any transient or temporary reproductions that occur through the automatic

technical process of digital transmission.”

• Accredited nonprofit educational institution.

• Instructional activities of government body.

• Occur under the actual supervision of instructor.

• Directly related to course content.

• Technical measures must be used to limit access – specific students in specific class.

Requirements

Institutional & Policy – Technological – Instructional Planning

• Most licensed. • Read agreement.• Follow terms of agreement. • May prohibit rental or lending.

License restrictions, if any, should be License restrictions, if any, should be observed for in-library or in-classroom useobserved for in-library or in-classroom use.

Software Piracy is a Felony.

17 Title 109 17 Title 109

§ 109(b)(2): Lending to patrons allowed if

•LawfullyLawfully obtained.•Lent for nonprofitnonprofit purpose.•Required warningwarning on work.•LicensingLicensing agreement permits.

17 Title 11717 Title 117

Libraries may make oneone archival copy

if • One copy.

• Archival copy stored.

• If possession of original ceases to be lawful, archival copy must be destroyed or transferred along with the original.

• Copyright notice attached.

If uncertain, ask permissionask permission.

•Identify the copyright holder.

U.S. Copyright Office Circular 22

•Send written permission.

•If unable to locate owner - use a limited amount.

Fair UseFair Use

• Negotiate licensing terms and secure licensing fees, or royalties, for payment to copyright owners.

Copyright Clearance Center

• Primarily corporate or academic users.

• Provides collective licensing.

Karen KitchensIntellectual Property Librarian

Wyoming State LibraryPhone: (307) 777-7281

E-mail: karen.kitchens@wyo.gov

Association of Research Libraries, “Copyright and Intellectual Property Policies”. Influencing Public Policies. Association of Research Libraries, 07 Jul 2011. Web. Aug 2012. <http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml>.

Butler, Rebecca P., Copyright for Teachers & Librarians in the 21st Century . New York : Neal-Schuman Publishers, 2011.

Crews, Kenneth D., Copyright Law for Librarians and Educators. Chicago: American Library Association, 2012.

Fisherman, Stephen J.D., The Copyright Handbook. Berkeley: Nolo, 2011. Hirtle, Peter, “Copyright Term and the Public Domain.” Copyright Information Center.

Cornell University, 2012. Web. Aug 2012.<http://copyright.cornell.edu/resources/publicdomain.cfm>.

Russell, Carrie, Complete Copyright for K-12 Librarians and Educators. Chicago: American Library Association, 2012.

U.S. Copyright Office, “Circulars.” Information Circulars and Factsheets. U.S. Copyright Office, 14 Aug. 2012. Web. Aug 2012. <http://www.copyright.gov/circs/>.

U.S. Government Printing Office, “United States Code”. Federal Digital System. U.S. Government Printing Office, 2012. Web. Aug/Sep 2012. <http://www.gpo.gov/fdsys/browse/collectionUScode.action?collectionCode=USCODE>.