“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and

discoveries."U. S. Constitution: Article 1, Section 8

Colorado State UniversityProfessional Development Institute

January 6, 2010

Copyright Issues in Higher Education

Copyright BasicsWhat is Copyright?What Does Copyright Protect?What Does Copyright Not Protect?

How Do I get Copyright Protection?

What Does it Mean to Owners?What Does it Mean to Users?Can I use a Copyrighted work without permission?

What is Copyright?Copyright is a form of protection provided by the laws of the United States to authors of original works of authorship.

It is available for both published and unpublished works.

It generally gives the owner of the copyright exclusive rights to the work for a period of time before the work goes into the public domain.

What Does Copyright Protect?

Original Works of Authorship - A Person’s Unique Way of Saying Something

Fixed in a Tangible Medium – Does not have to be directly perceptible as long as it can be communicated with the aid of a machine or device

Categories of Protected Works:Literary worksMusical works, including

accompanying lyricsDramatic works, including

accompanying musicPantomimes and choreographic

worksPictorial, graphic and sculptural

worksMotion pictures and other

audiovisual worksSound recordingsArchitectural works

Note Ownership of a copy of a book, manuscript, painting or other work protected by copyright does not give the possessor of that work any ownership rights in the underlying copyright embodied in the work.

“First Sale Doctrine” does give purchaser of a work certain rights to the work itself.

What is not protected by Copyright?Works that have not been fixedTitles, names, short phrasesListings of ingredients/contents, directions

Ideas, concepts, methods, processes

Works consisting only of information that is common property (i.e. height/weight charts, tape measures, etc.)

Works authored by the US Government

How do I get Copyright Protection

for my work?

Copyright Protection begins the Moment a Work is fixed in a Tangible Medium.

It is AutomaticUse of a “Copyright” Notice is Not Required

Registration Carries Certain Benefits but is Only Required to Bring a Lawsuit

Copyright Term and Public Domain

Works published before 1923 are in the public domain.

The copyright term for works published after 1978: Life of author + 70 years; and Works for hire: the shorter of publication + 95 years or creation + 120 years.

No new works will enter the public domain until 2019.

Copyright term continued…

Many variations in copyright terms and it can be very confusing. Cornell has a really good website that goes through all of these:

http://www.copyright.cornell.edu/resources/publicdomain.cfm

Exclusive Rights of the Copyright Owner

Reproduce the work Prepare derivative works based

on the workDistribute copies of the work by

sale, lease or lendingPerform the work publically in the

case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures and other audio visual works

Display the work publicly, in the case of literary, musical, dramatic and choreographic works, pictorial, graphic or sculptural

Droit Moral – The right of the Artist to protect the integrity of their workVisual Artists Rights Act of 1990 (VARA)Applies to Visual Arts – paintings, sculptures,

and limited edition photographs and prints (less than 200 signed and numbered)

Grants Author of a work of Visual Art protection against:Misattribution (although can ask to have name

removed)Distortion, mutilation or modification of the work

which is likely to harm the reputation of the author

Destruction of any work of Recognized StatureRights are personal to Author and end upon

their deathCan be waived in a written agreement signed

by the Author

Who Owns the Copyright?The Author is the OwnerJoint Authorship/Ownership

Each a Contributor of copyrightable expression

At the time of creation:Intend to create a unified wholeIntend to be joint authors

Each can exploit but must account to the other

Each can create derivative works

Work Made for Hire

Specially Commissioned or Ordered WorkThe parties MUST agree to this in a signed written document; AND

Only applies to: 1) contribution to a collective work; 2) part of a movie or audiovisual work; 3)translation; 4) compilation; 5) supplementary work; 6) instructional text; 7) a test; 8) answer material for a test; or 9) an atlas

Person who commissioned will be the “Author”

Employer Ownership of Employee’s Work

Employee’s Work within the Scope of Employment will also be considered a “Work for Hire”At workDuring work hoursUsing work facilities and resources

Section J

J.12.1 Academic Materials created by Members on their own initiative in the ordinary course of teaching to meet the reasonable needs of currently enrolled students, including distance or handicapped students, and not involving University Resources, belong to the Member. The Member has sole control over the content and use of the Academic Materials, is authorized to place supplemental classroom materials on a University Web site, may set access permissions to that site, and may assert exclusive copyright in their works. The University shall not exploit the Academic Materials nor authorize other employees to use the Academic Materials or derivatives of those Academic Materials in their classes without permission of the Member.

Section J continued…

The ownership of student works created in the course of academic requirements shall be with the student and the University may retain the work as needed for its instructional or record-keeping purposes. The University and the Members may not use the work in any other manner without the written consent of the student.

Ownership of Works created in the course of sponsored research or other agreements are subject to the provisions described in Section J.7.

Important Exceptions for use of Copyrighted works in Higher Education

Special Provisions for Libraries

Modifications for Blind and Disabled

Classroom Performances/Displays

TEACH ActFair Use

Special Rights of Libraries

ILL copyright rules:

• We abide by CONTU guidelines (National Commission on New Technological Uses of Copyrighted Works; established by US Congress, operated 1975 – 1978)

• We may obtain 5 copies of articles from a work published in the last 5 years/year before we must start paying copyright royalties on each subsequent copy.

• Older than 5 years are not counted

ILL copyright rules:• Copyright averaged around $35 for each

article we had to pay for last year.• It is sometimes cheaper to buy the

electronic version from the publisher than to pay royalties through Copyright Clearance Center

Copyright guidelines for Electronic reserve:

• Scan item with title page and copyright info• No more than one book chapter or article

from a journal issue per class• Don’t combine several items from various

sources into one new ER reading

Copyright guidelines for Electronic reserve:

• Some electronic journal licenses may forbid placing the article on ER. We will create links instead

• If items are reused for more than one semester, copyright royalties may be required.

• Link to Web sites or Web pages, don’t copy and paste into a new document

Adapted Works -- Accessibility

Section 121 permits adaptation of works for individuals with disabilities where the copyright owner has not made special versions available (e.g. brail, large type, audio, etc.)

You may even circumvent technical protections to do so

Classroom Teaching ExceptionInstructors and students at a non-profit

educational institution may use, display, and/or perform in a classroom environment any copyright-protected material or work

Provided that:

The work used was legally obtainedThe intended use of the work is

strictly educationalDistribution is in a location designed

primarily for educational purposesTeaching and learning occur

simultaneously (e.g. not a recording)See TILT Guide: Copyright Essentials for Educators

Can you show a movie on campus without getting copyright permission?

Is that only allowed in the classroom?

Neat Chart from:http://counsel.wlu.edu/tutorial/movies.pdf

Technology, Education and Copyright Harmonization

(TEACH) Act

The TEACH act was put into place to clarify the use of copyrighted materials in online education

Applies only to materials you would ordinarily use in a classroom setting

There are, however, many factors and limitations that must be considered

Good guidance is available on the TEACH Act page of the Copyright Essentials for Educators Guide on the TILT Web site:

http://tilt.colostate.edu/guides/tilt_copyright/exemption_distance.cfm

Fair Use StatuteFair Use is provided for in the

Copyright Act at Section 107It embodies a balance between the

interest of the copyright owner in exploiting their work and the public’s interest in accessing the work

It also addresses First Amendment concerns allowing limited use of a work for comment, criticism and parody

Fair use addresses market failures to allow good but uneconomical use of copyrighted works

Four Factor Fair Use Test

Purpose and character of the use

Nature of the copyrighted work

Amount and importance of part used

Effect on the potential market for or value of the copyrighted work

Purpose and Character of the Use Non-Profit educational or commercial purpose?

Nature of the Copyrighted WorkFactual or Artistic?

Amount and Importance of Part UsedThe whole work? Just the most significant part?

Effect on the MarketDoes use compete with Copyright owner’s sales

Repeated use tends to have more impact on the market

Safe Harbors do Exist…

Catholic University has a nice chart summarizing these on its website:

www.cu.edu/ip/copyright/downloads/Quick-Ref-Chart.pdf

Need more information?

Copyright Essentials for EducatorsA TILT Teaching Guide

from the Institute for Learning and Teaching at Colorado State University

Copyright Clearance Procedures for Course

packets

http://ccs.colostate.edu

http://ccs.colostate.edu/course_packets.aspx

How much does Copyright cost?

For the Spring ‘10 semester, copyright fees ranged from $.49 – $36.87 per student.

This is for copyright fees only.Other costs to complete course

packets include printing costs and bookstore charges.

Remember!Copyright

permissions need to be cleared

every semester!

Contact information:Linda Schutjer,

Senior Associate Legal Counsel, Office of General Counsel 491-6270

Peter Connor, Communications director, The Institute for Teaching and Learning 491-5277

Sherri Lebeda, Communication and Creative Services 491-6432

Teresa Negrucci, Collection Assessment and Management Librarian; Assistant Professor 491-1438