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copyright for researchers

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mark muehlhaeusler

on 22 October 2017

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Transcript of copyright for researchers

for researchers
Your (copy)right(s): What they are, how to keep them, and what to do with them....
This presentation is for university researchers; be they faculty, staff, or students ...
... it provides an overview of copyright principles, and addresses your rights as an author.
for your own benefit, and for the benefit of the scholarly community as a whole.
Copyright Mechanical Theatre
It also contains suggestions for keeping your rights, and for using them effectively
B. Basics
Copyright laws are found in title 17, U. S. Code. They give the owner of copyright the exclusive
right to do and to authorize others to do the following:

• To reproduce the work
• To prepare derivative works
• To distribute copies to the public
• To perform the work publicly
• To display the work publicly

The current basic copyright terms lasts for 70 years after the death of the author.

However, the length of copyright term has been modified several times during the 20th century. To find out the applicable term for a given work, use tools like this digital slider:

A work is protected by copyright as soon as it is fixed, or saved in any way.

There is currently no need to register one's work with the US Copyright Office. However registration is required to bring a lawsuit for infringement of a U.S. work.

Limitations ... are a good thing
In the US, copyright is part of federal law. It is rooted in the Constitutional provision that:

"Congress shall have Power ... 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." (art. I, para. 8, cl. 8)
Food for thought
This is what one might call
'the spirit of the law'
giving authors and creators an economic incentive, by granting them some exclusive rights

limiting the period of time during which these rights are active, so that the general public may eventually reap the benefit of a creative work.
Copyright only applies to original creative works, not ideas.

It is not intended to protect the economic interests of publishers per se.
In practice, the law 'promotes progress' by:
Remember, the law aims to strike a balance between the protection of copyright holder's interests, and the interests of the general public. The latter are addressed in a series of
limitations on the exclusive right
s of owners:

Fair Use
allows for the use of copyrighted material in news reporting, for comment and criticism, in scholarship and research, etc... . Most academic work rests on this pivotal right (title 17, U.S. Code, sec. 107)

Reproduction by libraries and archives
allows libraries to engage in Inter-Library Loan (ILL), and to preserve deteriorating materials (title 17, U.S. Code, sec. 108)

First Sale Doctrin
e enables the resale, display, etc... of a legally acquired, copyrighted work (title 17 U.S. Code, sec. 109)

Exemption of Certain Performances and Displays
allows educators to show or perform copyrighted works in any format, within a classroom setting. (tite 16, U.S. Code, sec. 110)

To make use of these limitations, you must fulfill certain conditions. We will discuss these below.

What do you own?
In general, the works created by you, on your time, with your resources belong to you.
created within a work environment (such as the University) are subject to the conditions of your contract.

At most universities, there are different rules for faculty, staff and students.

The current policies are often set out in detail in the faculty and staff handbooks, respectively.
Typical policies for Faculty
Articles, books, manuscripts, artistic works, movies and television programs
University claims no rights
it pays the full or a substantial part of the cost of publication AND the royalties or revenues from the publication are likely to exceed $10,000. A formal agreement about royalties must be made.
Classroom recordings
Faculty may record their own lectures and presentations for personal use. However, recordings may not be published or distributed without written consent of the University.
This legal language is rather dense. Let's look at what it means in practice.
In the course of publication, you may be required to transfer some, or all of your rights to your publisher
Software & digital resources

does not

rights to free & open source software, open access databases.


ownership interest in software developed with its substantial support, if there is potantial for commercial development
Inventions & patents
University acquires ownership in all inventions made or conceived:

1. during research or other assignment at the University
2. utilizing facilities, equipment, funds, or other contributions of the University

provided that the University has not entered into a research grant or contract agreement with express provisions to the contrary.
Sample Policies for Staff & Students
Articles, books, manuscripts, artistic works, movies and television programs, etc... ('traditional scholarship')
Classroom recordings
may record lectures and presentations
on behalf of the University
, after seeking permission to do so. The University owns these recordings, and may use adapt, modify, and distribute them for non-commercial purposes.
Software & digital resources
Inventions & patents
may record lectures only with written permission of the instructor. Recordings may not be reproduced or distributed, and must be destroyed after the end of the course.
For independent research, identical to faculty policies.

Works made under assignment may be subject to terms of contract / works for hire.
Managing your rights
a) commercially published works

b) unpublished, or privately published works (e.g. images on the web)
Publishers routinely acquire some, or all of your rights through a publishing agreement.
These agreements are not mere formalities, but determine what you, and others can do with your work in the future.
They are not set in stone: as copyright holder, you have the opportunity to negotiate -- until the moment you sign!
Remember: The exclusive rights of authors come in a bundle. You may choose to retain some and any rights within that bundle.
Take a look at an example of a typical publishing agreement:
"In consideration for publication in the above Journal [...] I hereby grant to Anonymous Publishers the sole and exclusive right and license to produce, publish and make available the Contribution and the abstract [...] for the full legal term of copyright and any renewals thereof throughout the world in all languages and in all formats and through any medium of communication now known or later conceived or developed."
Here you state that the publisher acquires
exclusive rights to your work
... here you transfer the right to distribute and display ...
...here you give away the right to make derivative works (including translations) ...
... and here you state the that you relinquish your rights in perpetuity, and worldwide.
Take a stand
Try and negotiate the terms of the publishing agreement.
If possible, retain:

The right to prepare derivative works (translations, compilations, scripts)
The right to distribute your work through the University's Digital Repository, or through a subject database.
You can negotiate with the publisher directly, but you can also use this simple online tool:
... and attach the resulting addendum to the publishing agreement.
The addendum will preserve:

"(i) the rights to reproduce, to distribute, to publicly perform, and to publicly display the Article in any medium for non-commercial purposes; (ii) the right to prepare derivative works from the Article; and (iii) the right to authorize others to make any non-commercial use of the Article"
Part I - What you own, and what to do with it
Part II - What others own, and what not to do.
Unpublished works may include:
If you post works like these on the web, they're still protected, and others can make only very limited use of them.
Creative Commons
Institutional Repository
Attach a CC licence to works you post on the web.

This empowers others to use your work -

You get to choose how it will be used
Faculty, staff and students can deposit academic works in their university's institutional repository
You simply need to give the University permission to distribute your work. You retain all rights.
works will be searchable in Google Scholar
researchers worldwide can access the repository, for free
Purposeful Admonition
Know your rights
and manage them
next: using copyrighted material
Part II
What others own:
using copyrighted materials

What are we talking about?
video / DVD
sound recordings
works of art
All the material types listed here may be protected by copyright. However, there are some basic categories of works where copyright restrictions don't apply. Consider:
Public Domain
Under Copyright
Licensed works
Works with public license
Works in the public domain are not protected by copyright. They can be used freely. This category includes:
Government publications, and works produced under government grants (NEH, NSF, etc...)
Works for which the copyright term has expired.
FAQ: Where can I find Public Domain Images?
Use our guide at
e.g. works with a creative commons license.
Works can be shared freely (and are similar to Public Domain materials in that respect), BUT
There may be some restrictions (attribution required, no derivatives, no commercial use).
Licenses are contracts that govern the University's use of journals, and of some other resources (Databases, video).
License terms for your university are typically displayed online for each electronic resource. Look for a link that says "Terms of Use".
If you cannot make out the terms, please contact your local librarians.
Is it in the Public Domain yet? Use this tool:
Occasionally, one finds materials on the web that ara labelled with a creative commons license,
... but in reality they are copies of copyrighted, commercial works.
Do check for credits / attribution
Do exercise caution
So what
you do?

Public Domain Works
Your own works
(if you retain your rights)
Open Access works
Electronic works licensed by Georgetown
Works with Creative Commons license
Exhibit materials in live classroom?
Post materials to an online class?
Create electronic reserves?
(exception: Harvard Business Review)
Uses in teaching
What you can (and can't) do in your work depends a) on the on the nature of the material you are working with, and b) on the way in which you want to use it. In TEACHING, the he following guidelines apply.
Adapted from: "Know Your Copy Rights", a brochure published by the Association of Research Libraries (http://www.knowyourcopyrights.org/)
Note: License terms may vary.
Other works
(none of the above apply)
IF use meets TEACH Act or Fair Use standards. If not, LINK or seek permission
IF use meets Fair Use standards. If not, LINK or seek permission
IF use meets Fair Use standards. If not, LINK or seek permission
Limitations revisited:
made for
Title 17, U.S. Code, sec. 101 assigns copyright to the employer if a work has been made for hire, i.e.:
a) the works is prepared by an employee within the scope of his or her employment
b) the work is specially commissioned AND the parties agree by contract that the resulting work is made for his (applies only to particular classes of material)
The terms 'employee' and 'employer' are very narrowly defined.
Under Agency Law, an employer-employee relationship exists only if:
The employer controls how the work is done, where it is done, and with what equipment
the employer controls the employees work schedule, the method of payment
the employer can assign other tasks to the employee, and has the right to hire the employee's assistants
the employer is in business to produce the works in question, provides benefits and withholds tax.
Case law (such as CCNV v. Reid, 490 U.S. 730 [1989]) shows that these factors are weighed very carefully.
While University staff & AAPs are likely to be found regular employees, the status of faculty members is less clear, because they regulate their own work independently.
This is why University policies are important
Section 110
Sec. 110(1) of the Copyright Act gives educators the right to display and perform other's works in the classroom. It applies to all material types, but is subject to these conditions:
Online distance education settings are addressed in the TEACH Act (aka "Technology, Education and Copyright Harmonization Act"), i.e. sec. 110(2).
user must be educator at a non-profit educational institution
the copy shown or performed must be legally acquired
no copies are to be made under
section (but possibly under Fair Use)
educators may display and perform audiovisual materials in online teaching settings.
STRICT LIMITATIONS apply: use the checklist at:
Sec. 107 of the Copyright act makes it lawful to reproduce protected material (without seeking permission)
the proposed use is FAIR.
applies to all types of works
for teaching as well as research, news reporting, criticism & comment
How do you know if a use is 'fair'?
This section is much broader in scope than sec. 110. Many aspects of academic work rely on Fair Use rights.
You need to consider four factors in order to determine whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes*
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
Four factors
"The distinction between fair use and infringement may be unclear and not easily defined. "
There is no specific number of words, lines, or notes that may safely be taken without permission.
How do you weigh these factors?
No single factor outweighs the others. All four have to be considered together.
e.g. copying for teaching is
automatically fair
Use this online tool to help you in your Fair Use analyis:
A Fair Use analyis can be frustrating, because the law seems so vague.
Indeed, the US Copyright Office notes:
Some common sense should help you decide whether what you are doing is right. If are still unsure, or need guidance, please contact the Library.
However, there are some rough guidelines for
classroom copying
, and for educational uses of music.
In a nutshell it's OK to produce one copy per student for a class of the following (these are
a chapter of a book
an article from a journal
a poem (or part thereof, <250 words)
a short story or essay (<2500 words)
excerpt of a prose work (<1000 words, or <10%, whichever is less)
a diagram, graph, chart, drawing, cartoon, or picture from a book, journal or newspaper
(one only per issue or book)
** as long as each copy is accompanied by a copyright notice, there is no charge for the copy, and the copy does not substitute for a subscription or purchase. See the full guidelines in Circular 21:
* In case law, emphasis is being placed on the nature of the use. A
use (i.e. a use that does not merely reproduce a work for its original purpose) is seen as weighing in favor of fair use. An example would be movie posters which a reproduced for their artistic value (and not to advertise the showtimes of a film).
Questions? Please write to:
The End
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License
For more information, please visit:



image credits:

Seattle Photograph Collection
Persistent URL: content.lib.washington.edu/u?/seattle,1514

Repository: Library of Congress, Prints and Photographs Division
Persistent URL: hdl.loc.gov/loc.pnp/ggbain.09273

Steven Cummings / Smithsonian Institution http://photography.si.edu/SearchImage.aspx?t=5&id=1020&q=jbfam upanon#1

Collection: Cornell University Collection of Political Americana, Cornell
Persistent URI: http://hdl.handle.net/1813.001/5zpm
At many Universities, theses must be submitted through ProQuest, a commercial entity.

The files are saved on their server, and copies are sent to the Library.
Sample license language:

"I hereby grant to ........... University and its agents the non-exclusive, worldwide right to reproduce, distribute, display and transmit my thesis or dissertation in such tangible and electronic formats as may be in existence now or developed in the future. I retain all ownership rights to the copyright of the thesis or dissertation, including the right to use it in whole or in part in future works.

I agree to allow the ............. University Library system to serve as the institutional repository of my thesis or dissertation and to make it available to the ............. University community through the online catalog.

I hereby certify that I have obtained and attached written permission statements from the owner(s) of each third party copyrighted material to be included in my thesis or dissertation, allowing distribution as specified below. I also certify that the version I have submitted is the same version that was approved by my advisory committee."
During the submission process, you will enter into two license agreements: one with the university, the other with ProQuest.
ProQuest will make theses available to subscribers worldwide, unless you request an embargo.

ProQuest may also distribute the files to commercial vendors (such as Amazon or B&N)
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