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Navigating the Murky Waters of Copyright

Library Training Webinar
by

Sabrina HW

on 31 July 2014

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Transcript of Navigating the Murky Waters of Copyright

Navigating the Murky Waters of Copyright
Is copyright in play?
US Copyright law (17 USCA) grants authors of original creative works fixed in any tangible medium of expression exclusive rights to reproduce (in whole or in part), distribute, make derivatives, publicly perform, and publicly display.

Examples of derivatives: translations, dramatizations, various other adaptations

Protection is granted at creation (as soon as the expression is "fixed"). Registration is not required, though it is necessary if pursuing legal action.
First Sale Doctrine
17 USCA § 109 . Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord
Questions?
Fair Use
Additional Rights for Libraries
Sabrina Holley-Williams
Region 1 Librarian (Contractor: ASRC Primus)
holley-williams.sabrina@epa.gov

In other words...
The law says...
Any legally obtained (non-digital) copy can be sold, donated, or loaned to others regardless of the permission or objection of the copyright owner.
You buy a CD and give it to a friend.
You buy a book and sell it to a used bookstore.
A library buys a book and loans it to its patrons.
Examples of First Sale
Kirtsaeng v. John Wiley & Sons, Inc.
Related Case
http://www.scotusblog.com/case-files/cases/kirtsaeng-v-john-wiley-sons-inc/
"Holding: The “first sale” doctrine, which allows the owner of a copyrighted work to sell or otherwise dispose of that copy as he wishes, applies to copies of a copyrighted work lawfully made abroad."


The law says...
17 USCA § 107 . Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In other words...
literary works
musical works, including any accompanying words
dramatic works, including any accompanying music
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works.
Types of work protected:
What is Not Protected?
Works not fixed in tangible form (ex: a speech that is not written or recorded)
Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries separate from their description, explanation or illustration (may be protected under patents)
Titles, names, slogans (may be protected by trademark)
Lists of ingredients (instructions are protected)
Facts

Just because a form of expression is not explicitly listed doesn't mean it's not covered.

Computer file = literary work
Map = pictorial or graphic work
U.S. Government Works
Works in Public Domain
Public domain does not mean free access or publicly available. It means works on which copyright has been abandoned or expired.

Anything published prior to 1923 is in the public domain.

Otherwise...

PL 105-298 (Sonny Bono Copyright Term Extension Act)
Life of the author + 70 years
Corporate = 120 years after creation or 95 years after publication (whichever is earlier)


Work prepared by an officer or employee of the United States government as part of that person's official duties is not protected by copyright laws.


Exceptions:
Works created by contractors
Trademarks or logos require permission for use
Implied endorsement is not allowed
Privacy and Publicity rights may come into play
Copyrighted items used by the government with permission retain copyright protections
Four Factors
Purpose and Character of Use
Transformative versus derivative. Not just an exact copy. Some value needs to be added, such as review, critique, new expression, meaning, or insights. Examples include: scholarship, research, education, parodies, criticism, finding aids (google image search).

Nature of Copyrighted Work
Amount and Substantiality
Effect on potential market for or value of
All four factors are considered, e.g. not all educational or non-commercial use is fair use.
Decided on a case by case basis.
There are no bright line rules for any of the factors (no specific amounts or tests).
Affirmative defense (defendants must prove their use was fair).
Acknowledgment and/or disclaimers do not constitute fair use, or substitute for permission.
Fiction versus non-fiction. Published versus unpublished.
Percentage of, and/or how substantial that portion is to, the whole.

Market harm, both past, and future. Is the copy a direct substitution for the original and/or is there further market impact? Certain kinds of market harm are not in opposition to fair use, such as parody and criticism.
De Minimis
Too small for fair use.

In some cases the amount copied is so minimal and insignificant that it will not even be considered enough for a fair use analysis.

Again - no bright line rules for what qualifies as de minimis.
The Author’s Guild v. Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y., October 10, 2012)
Cambridge University Press v. Georgia State University, Case 1:08-cv-01425-OD (N.D. Ga, May 11, 2012).
Harry Potter Lexicon, Seinfeld Trivia Book, Twin Peaks Guide
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)
Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).
Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003).
All were determined not to be fair use. Impeded the copyright holders' rights to make their own derivative works.
Known as the Betamax case. The Supreme Court determined that taping entire programs for the purposes of "time-shifting" was fair use and did not deprive copyright owners of revenue.
Fair Use Cases
2 Live Crew used the opening musical tag and first line of Roy Orbison's song "Pretty Woman." The court determined that the use was transformative and therefore fell under fair use.
Court found that search engines creating and using thumbnails of images was fair use. The images were smaller and poorer quality than originals so it didn't cut into potential profits for copyright holders. Indexing was a transformative use.
Repository of digital content including content digitized via Google Books project. The digital scans were used by libraries for three purposes, which were all determined to be transformative and therefore protected by fair use: preservation, a full-text search engine, and electronic access for disabled patrons who could not read the print versions.
University e-reserves. 70 out of 75 instances of potential infringement were found to be fair use. The court proposed its own standard for amount/substantiality factor: 10% of a book with fewer than 10 chapters, or of a book that is not divided into chapters. No more than 1 chapter, or its equivalent, in a book with more than 10 chapters.
17 USCA § 108 Limitations on exclusive rights: Reproduction by libraries and archives
This section allows libraries and archives to reproduce and distribute one copy of a work, such as photocopying journal articles, book chapters, etc. and sending these copies to other libraries through Interlibrary loan. Copies must include a notice of potential copyright.

Changes made by the Digital Millennium Copyright Act include:
Allowing libraries to make up to three copies of an unpublished work for purposes of preservation, including copies in digital form, as long as those digital copies are not made available to the public outside of the library or archives; to make up to three copies of a published work to replace a damaged, deteriorating, lost, or stolen work (when an unused replacement cannot be obtained at a fair cost); and to make up to three digital copies to replace a work in an obsolete format as long as that format is not made available to the public outside of the library or archives.
Allowing libraries or archives to reproduce, distribute, display, or perform in facsimile or digital form any work in the last 20 years of its copyright term for purposes of preservation, research or scholarship, as long as the work is not subject to normal commercial exploitation and a copy cannot be obtained at a reasonable price
Contracts and license agreements may alter your rights. For example, whether or not a printed copy that is printed out from a digital file is lawful or not will depend on the terms of use that accompany that digital file. If that contractual agreement allows printing and does not say anything to restrict the use of that printout, then first sale would allow it to be loaned. But if the contract forbids printing, or says that a printed version cannot be loaned, you must comply with the terms of the contract.

Always read any licenses and contracts carefully, and beware of shrink wrap licenses. These are licenses that come packaged with a product, such as a software program, and are not seen until after the package is open.
Contracts and
Licensing Agreements
holley-williams.sabrina@epa.gov
(617) 918-1991
First sale does not apply to resending a digital file. Forwarding a digital file always makes a new copy. First sale does not authorize any additional copies, just lending of the lawfully obtained copy.
Note...
DMCA
(Digital Millennium Copyright Act)
Passed and signed into law in 1998.

Among other things it places a prohibition on the circumvention of technological measures (DRM) used by copyright owners to protect their works. Fair use is still available in principle under DMCA, but not in practice, since circumvention is its own offense separate from copyright infringement.

Section 1201 allows for "classes of works" to be excepted through Library of Congress rulemaking, which must be done every 3 years. The 2012 review added these new exceptions: e-book access for people with disabilities, jailbreaking for iPhones but not iPads (but ended the exception for unlocking phones to use on other service providers), making clips from legally obtained motion picture DVDs for the purposes of commentary, criticism, documentary film making, and non-commercial use. However, the Register of Copyrights and the Librarian of Congress rejected the idea that space shifting (moving a file from one medium to another such as burning a CD or ripping a DVD to use on your iPad) is fair use, despite the RIAA and the MPAA previously conceding that it is.


No Fair Use...
Link rather than upload.
Search for content with Creative Commons licenses (material available for use under certain parameters such as requiring attribution and non-commercial use).
In the case of software and code, search for Open Source licenses.
Get Permission: Ask for exactly what you need (what you're using, how you're using it, who will have access to it, and for how long) and get permission in writing. There is no requirement for an owner to respond, but asking for permission (even if denied) does not preclude you from later determining a use is fair use.

Temporary copies in RAM (random access memory) are considered a copy, but these copies may not amount to infringement.

Some exceptions:
Computer owners are allowed to make a copy of a computer program in the course of maintenance or repair.
Transitory digital network communication (online service providers).
Side note on digital copies
Exceptions to exclusive rights granted to authors are outlined in sections 107-122. Examples include:

First Sale
Fair Use
Library Reproduction
TEACH Act
Works Created Under Federal Government Contract or Grant
Unlike other government works, works created under contract or grant are protected by copyright. Ownership of the copyright depends on the terms of the contract. Contract terms and conditions vary between civilian agencies and the military. Civilian agencies are guided by the Federal Acquisition Regulations (FAR). In particular Subpart 27.4 covers copyrights, but other sections may apply. There also may be Agency specific supplements.

If a contractor is allowed under the contract to assert copyright, then the government is given unlimited usage rights. Copyright ownership can be transferred to the government and the copyright protection remains in place. Under FAR, agencies may also place restrictions on the contractor's use of works created under the terms of a contract.
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