Utah Library Association/Mountain PlainsLibrary Association Conference 2008

Salt Lake City

Copyright and Multimedia

Carrie Russell, Copyright Specialist andDirector, Program on Public Access to Information

ALA Office for Information Technology PolicyApril 30, 2008

Carrie Russell, 2008

You are free:•to copy, distribute, display, and perform the work•to make derivative works

Under the following conditions:

         

Attribution. You must give the original author credit.

         

Noncommercial. You may not use this work for commercial purposes.

         

Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one.

For any reuse or distribution, you must make clear to others the license terms of this work. Any of these conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above.

Brief Review of Copyright LawBrief Review of Copyright Law• Purpose: “to advance the progress of Science and the Useful

Arts” to benefit the public• Congress creates the copyright law; it is not a natural right• Creators/Authors allowed a limited monopoly by Congress as

an incentive to create• Exclusive rights make up the monopoly (reproduction,

distribution, derivative works, public performance and display)• Statutory monopoly limited by:

– user privileges like fair use, first sale, interlibrary loan, etc. – public domain– limits on what can be protected (not facts, lists, processes,

federal government documents, etc.)– idea v. expression dichotomy

Review of Copyright LawReview of Copyright Law• Exclusive rights make up the monopoly

– reproduction – distribution – derivative works – public performance – public display

• Exclusive rights are divisible and can be inherited, given or contracted away

• Original, creative works “fixed in a tangible medium” get automatic copyright protection

• Distinction between copyright and a copy (the physical object)

Copyright LimitationsCopyright Limitations• Section 108 – allows libraries and archives to make copies

for library users, interlibrary loan, replacement and preservation How about transferring videos to DVDs?

• Section 109 – allows owners of locally acquired copies the right to distribute that copy (library lending, used book stores, garage sales, etc.) BUT can you ILL media? Not clear, so vendors provide clarity by licensing media…

• Section 110 – allows teachers to display or perform works in the face-to-face classroom and in the digital or distance education classroom via digital networks But too strict for media?

• Section 117 – owner of a software program can make a back-up copy

Fair UseFair Use• Section 107, codified with the Copyright Act of

1976• Determined on a case by case basis• A right of copyright can be exercised without the

prior authorization of the rights holder and without paying a fee

• Fair use is supposed to be technologically neutral

Four Factors of Fair Use• Purpose and character of the use (non-profit

education versus commercial use)• Nature of the material being used (factual or

fictional in nature, degree of creativity, published or unpublished)

• Amount and substantiality of the portion used in relation to the whole

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

Media Librarian Woes• Almost always dealing with “creative” works that

have more protection under the law• Ownership v. licensing issues are more common• TEACH is less lenient for your formats• You like the vendors and are sympathetic to the

documentary film makers• Big changes in the market and new business

models to consider• Help is on the way!!OITP project on fair use and

media

Art, music, photos, multimedia, etcArt, music, photos, multimedia, etc• Considered more copyright-worthy than most literary works;

“thick” copyright• Often associated with powerful interest groups (RIAA, MPAA)

that have significant control over Congress• More potential for legal battle, although still rare• If licensed works, contract terms determine use• Often difficult to clear rights because of numerous rights holders

and multiple IP protections• Often involve more than one exclusive right (copy and display,

performance and recording)

Teaching/Public PerformanceTeaching/Public Performance

• Section 110 allows for public display and performance in the “face-to-face” classroom

• Section 110(2) was added with the Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 and allows for the use of digital works and transmission for teaching

• You must often rely on fair use

Quick Review of TEACH Act• Expands section 110: exemptions for certain

performances and displays• Expands section 112: ephemeral recordings• Only accredited non-profit educational institutions • Acknowledges that mediated instructional activities

includes the digital classroom– integral to class experience;controlled by or under the actual

supervision of the instructor;analogous to the type of display or performance that would take place in a live classroom

Works …That can be used -- non-dramatic literary works (charts,

journal articles, maps, book chapters, some types of music, etc),limited portions of dramatic literary works (plays, operas, feature films),any work in ways that would typically occur in the physical, live classroom

That cannot be used -- those works produced for the sole purpose of being used in distance education; required reading textbooks, course packs, consumable workbooks); unlawfully made copies

Transfers from analog to digital formats

• When digital format is not available• Digital format cannot be used because of

technological protection mechanisms• Copy only the portion necessary• Cannot share digitalized copy with other

institutions• Cannot make digital copies of digital copies

New Institutional Obligations

• Copyright policy and copyright educational materials• Accurate • Promote lawful activity• Notice that materials may be protected by copyright

Is your institution TEACH compliant?

Technological Requirements• Limit access to registered students to the extent

technologically feasible• Reasonably prevent unauthorized copying and further

distribution• Retain materials only as long as necessary• Do not interfere with technological measures employed

by copyright holder• No known technology is 100% effective, and it is not

expected to be• Do not overprotect if mechanisms threaten fundamental

rights – intellectual freedom, privacyAre you compliant?

Rely on TEACH or Fair Use?

Scenarios Professor wants to digitize clips from a feature film on

video that the library owns and make clips available to class on an authenticated site

Professor asks library to digitize and stream entire works for class on authenticated site

Students create videos for their final assignment and they want to pull clips from DRM-encoded DVD

Professor asks for quality copy of video, long out of distribution, so library borrows a copy through ILL and streams to class

1201 Rulemaking and New Exception for Movie Clips

• Surprise that this was accepted• Only applies to media professors• Expires in 2009• MPAA does not like it -- wants to avoid all

allowances for circumvention• May offer a “clip market” for educational institutions• If market exists, does fair use ever apply for clips?

108 Study Report

• Tweaks - elimination of 3 for preservation and replacement, web archiving with opt-out provision, allowances for preserving works “at risk,” extend exemption to museums

• Report got the purpose of copyright wrong• What next? What concerns?• Amendments to law for things that are already occurring

and considered fair use - diminishes fair use? Compare to TEACH.

Orphan Works Legislation • Works whose copyright holders cannot be found• If make a good faith effort to find the copyright holder, use the

work and the copyright holder turns up, limits on remedies• All works, published/unpublished, foreign works• Many issues with photographers, illustrators, textile

manufacturers• Fair use not affected• Two bills: HR 5889 (Berman D- Cal, Smith R-Texas) and S 2919

(Leahy D-Vermont and Hatch R-Utah)• Support the Senate bill - does not include “dark archive”

requirement• Grassroots campaign necessary now

Your LiabilityYour Liability• Unlikely that a faculty member or librarian would be taken to

court, but still could happen• Section 504(c)(2) limits statutory damages for alleged

infringers who work at a non-profit, educational institutions • 11th Amendment – Constitutional doctrine that state or state

agencies cannot be sued for dollar damages by the federal government – Note: Georgia State University - complaint names

individuals as a way to bypass the 11th amendment??• Risky proposition to go to court; many disputes settled out of

court

Utah Library Association/Mountain PlainsLibrary Association Conference 2008

Salt Lake City

Thanks for listening!

You can contact me at crussell@alawash.org800.941.8478

Better Yet!! Use the Copyright Advisory Networkwww.librarycopyright.net