Copyright: Mission Possible? Donna L. Ferullo, J.D. Director

Copyright: Mission Possible? Donna L. Ferullo, J.D. Director

Copyright: Mission Possible? Donna L. Ferullo, J.D. Director University Copyright Office Purdue University [email protected] Legal advice DISCLAIMER I am not providing legal advice only legal information. For policy or legal advice, contact the appropriate staff at your institution. June 6, 2016 U. of Colorado-Colorado Springs

2 Copyright Intellectual Property Patent June 6, 2016 Trademark U. of Colorado-Colorado Springs 3 Agenda

Copyright basics The Exceptions Education Fair use Libraries Copyright & beyond Library Issues June 6, 2016 U. of Colorado-Colorado Springs

4 1. Is the work protected? 2. Who owns the ? 3. How can the work be used legally? 4. What can I do with my work? June 6, 2016 U. of Colorado-Colorado Springs 5 Is the Work Protected?

Does it meet the basic requirements? Is it in a category of copyrightable works? What are the time constraints? June 6, 2016 U. of Colorado-Colorado Springs 6 Copyright The Congress shall have the Powerto 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 United States Constitution, Article 1, Section 8, Clause 8 June 6, 2016 U. of Colorado-Colorado Springs 7 COPYRIGHT What is it? Copyright Law -Title 17, United States Code

1976 Act Purpose = Balance The Next Great Copyright Act June 6, 2016 U. of Colorado-Colorado Springs 8 Copyright Requirements Must be an original work with a minimum level of creativity White pages vs. yellow pages Burrow Giles Lithographs v. Sarony

(1884) Oscar Wilde, 1882 Must be fixed in a tangible expression Not fixed = extemporaneous speech June 6, 2016 U. of Colorado-Colorado Springs 9 Copyright Formalities

Copyright notice no longer required 2016 Donna L. Ferullo Registration needed only for litigation June 6, 2016 U. of Colorado-Colorado Springs 10 Copyrightable Works

Literary, musical and dramatic works Pantomimes and choreographic works Pictorial, graphic and sculptural works Sound recordings Motion pictures and other AV works Computer programs Compilations of works and derivative works Architectural works June 6, 2016 U. of Colorado-Colorado

Springs 11 What is not copyrightable Ideas, procedures, methods, systems, processes Titles, names, short phrases, slogans Facts, news, research Works in the public domain

Works created by US government employees U. of Colorado-Colorado Works with expired copyrights June 6, 2016 Springs 12 What is not copyrightable? Works in the public domain

Works created by US government employees Works with expired copyrights June 6, 2016 U. of Colorado-Colorado Springs 13 Copyright Owners Exclusive Rights

Reproduction Distribution Public performance Public display Derivative works June 6, 2016 U. of Colorado-Colorado Springs 14 Copyright Duration Works created on or after 1/1/78 Life of author plus 70 years Corporate author the shorter

of 95 years from publication or 120 years from creation Works published in US prior to 1923 are in the public domain June 6, 2016 U. of Colorado-Colorado Springs 15 Works Prior to 1978: Subject to 1909 Act + Required elements

Copyright notice Registration Renewal June 6, 2016 U. of Colorado-Colorado Springs 16 Who Owns the Creator Publisher WFH

employer specifically commissioned ?????? June 6, 2016 U. of Colorado-Colorado Springs 17 Infringement is Plaintiffs must prove:

valid copyright Access to work violation of exclusive right June 6, 2016 U. of Colorado-Colorado Springs 18 Send me to the pokey or the poorhouse

Actual damages & profits Statutory damages $200 $150,000 Attorney fees and costs Injunction Impoundment Jail U. of Colorado-Colorado June 6, 2016 Springs 19 The Exceptions June 6, 2016

U. of Colorado-Colorado Springs 20 How can the work be used legally? Libraries Education Research June 6, 2016 U. of Colorado-Colorado Springs

21 Copyright & Libraries Section 108 Reproduction by Libraries June 6, 2016 Preservation Private study Interlibrary loan U. of Colorado-Colorado Springs 22

Library Requirements Library must be open to public or to outside researchers Reproduction or distribution of copies is made without any direct or indirect commercial advantage Copies include copyright notice Notice as appears on original No notice then legend stating work may be protected

by copyright Only single copies allowed no systematic reproduction or distribution of single or multiple copies June 6, 2016 U. of Colorado-Colorado Springs 23 Preservation Unpublished work

Maximum of 3 copies for preservation only/3 copies for deposit for research in another library or archives Original library currently owns copy Published work - Maximum of 3 replacement copies for damaged, deteriorating, lost or stolen work or obsolete format - Library cannot locate unused replacement at reasonable price Digital formats Both published and unpublished works allowed Must be used on library premises

June 6, 2016 U. of Colorado-Colorado Springs 24 Private Study Articles, book chapters, short works Copy becomes property of patron Library is not aware that use is for anything other than private study, research, scholarship

Library displays warning notice where orders are accepted and on order forms June 6, 2016 U. of Colorado-Colorado Springs 25 Private Study Entire works, substantial portions of works

After reasonable investigation library cannot obtain copy at fair price Copy becomes property of patron Library is not aware that use is for anything other than private study, research, scholarship Library displays warning notice where orders are accepted and on order forms June 6, 2016 U. of Colorado-Colorado Springs 26 Interlibrary Loan

All requirements for private study Purpose cannot be to substitute for subscription or purchase of work After reasonable investigation library cannot obtain copy at fair price June 6, 2016 U. of Colorado-Colorado Springs 27 Rule of Five CONTU Guidelines

During one calendar year Five copies of articles Most recent five years of journal June 6, 2016 U. of Colorado-Colorado Springs 28 Copyrighted Work Restrictions Private Study and Interlibrary Loan

Musical works Pictorial, graphic, sculptural works Motion pictures or audiovisual works June 6, 2016 U. of Colorado-Colorado Springs 29 Exceptions to Restrictions

Restrictions do not apply to works for preservation Audiovisual works dealing with news Pictures and graphics published as illustrations that are adjuncts to text June 6, 2016 U. of Colorado-Colorado Springs 30 Sonny Bono & 20 Years Works within last 20 years of copyright may be reproduced, distributed,

displayed or performed for preservation, scholarship or research provided Work is not subject to normal commercial exploitation Copy of work cannot be obtained at a reasonable price Library has not received notice from owner that either of the above applies June 6, 2016 U. of Colorado-Colorado Springs 31

Copy Machines Unsupervised Copyright notice Reproducing equipment June 6, 2016 U. of Colorado-Colorado Springs 32 Any Questions on 108? June 6, 2016

U. of Colorado-Colorado Springs 33 Education Exceptions 110 Classroom teaching Distance education June 6, 2016 U. of Colorado-Colorado Springs 34 Classroom Teaching

110(1) Face-to-face teaching All displays are allowed Pictures, charts, graphs, still works All performances are allowed Videos, readings from text or poetry To perform a work To display means to means to recite, render, show a copy of it, either

play, dance, or act it, directly or by means of a either directly or by film, slide, TV image, or means of any device or any other device or process or, in the case of process or, in the case of a motion picture or other a motion picture or other audiovisual work, to show audiovisual work, to show its images in any individual images sequence or to make the nonsequentially U. of Colorado-Colorado sounds accompanying it June 6, 2016 Springs

35 TEACH Act Technology, Education and Copyright Harmonization Act of 2002 Total revision of distance education exception Attempts to equalize distance education and classroom teaching June 6, 2016 U. of Colorado-Colorado Springs

36 The TEACH Act 110(2) Distance educationdigital transmissions All displays are allowed but only in an amount comparable to what is displayed in a live classroom setting. June 6, 2016 U. of Colorado-Colorado Springs 37

TEACH Act (cont.) Performances of the following are allowed to be transmitted: non-dramatic literary or musical works Reasonable and limited portions of other works June 6, 2016

Readings from novels, poetry and textbooks Pop music, symphonies Dramatic works Audiovisuals U. of Colorado-Colorado Springs 38 TEACH Act Requirements Institution Technology Instructor Materials June 6, 2016

U. of Colorado-Colorado Springs 39 Institution Requirements Accredited nonprofit educational institution including K-12 Institute copyright policies Provide informational materials to faculty, staff and students on copyright June 6, 2016

U. of Colorado-Colorado Springs 40 Technology Requirements Transmission limited to students officially enrolled in the course Transmissions cannot be retained longer than class session Transmission cannot be distributed

beyond officially enrolled students No material can remain on the system longer than necessary to facilitate transmission. June 6, 2016 U. of Colorado-Colorado Springs 41 Instructor Requirements Performance (P) or display (D) must be made by, at the direction of, or under actual supervision of instructor P or D must be an integral part of class session which is offered as a regular part of systematic mediated instructional activities P or D must be analogous to what takes place

in a live classroom P or D must be directly related to teaching content Instructor must use lawfully made and acquired copy Instructor must provide notice to students that materials mayU.be subject to copyright of Colorado-Colorado June 6,protection 2016 Springs 42 Material Requirements Materials not eligible for exception

Textbooks, course packs or other material in any media, copies, CDs which are typically purchased by students for use in one or more class session Works that are marketed primarily for education Illegal works June 6, 2016 U. of Colorado-Colorado Springs 43 Materials (cont.)

Analog works cannot be converted into digital works unless No digital version is available Digital version is subject to technological protections that are not covered by TEACH Only the amount that is authorized under TEACH can be converted June 6, 2016 U. of Colorado-Colorado Springs

44 TEACH Exception or ???? All requirements must be met before exception can be used. FAIR USE, FAIR USE, FAIR USE June 6, 2016 U. of Colorado-Colorado Springs 45 Teaching How to

Distribute handouts Post works on CMS Show videos June 6, 2016 U. of Colorado-Colorado Springs 46

USAGE RULES (i) You shall be authorized to use iTunes Products only for personal, noncommercial use. (iv) You shall be authorized to burn an audio playlist up to seven times. (v) You shall not be entitled to burn video iTunes Products or tone iTunes Products. June 6, 2016 U. of Colorado-Colorado Springs 47 The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable, license to access

the Netflix service and view movies and TV shows through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. June 6, 2016 U. of Colorado-Colorado Springs 48 License to Digital Content . Subject to your payment of any applicable fees (including applicable taxes) to rent, purchase, or otherwise obtain access to Digital Content, and your compliance with all other terms we specify for Digital Content or the Service, Amazon grants you a non-exclusive, non-transferable, nonsublicensable, limited right and license, during the applicable Viewing Period, to access, view, use and display the Digital Content in accordance with the Usage Rules, for Non-Commercial, Private Use. As used herein, "Non-Commercial, Private Use" means a presentation of Digital Content for which no fee or consideration of any kind (other than that which you pay to us to view the Digital Content) is charged or received, which takes place in your private home or apartment or, if

outside your private home or apartment (e.g., in a hotel room, dorm room, office, or airport waiting lounge) is limited to a private viewing for you and your invitees. NonCommercial, Private Use specifically excludes any public presentation (e.g., a presentation in a dorm lounge) and any presentation by a place of public accommodation or other commercial establishment (e.g., a bar or restaurant), even if no fee is charged for viewing the Digital Content. To simplify your viewing and management of Digital Content that has a limited Viewing Period (such as Rental Digital Content and Subscription Digital Content), we may automatically remove that Digital Content from your Compatible Device after the end of its Viewing Period, and you consent to such automatic removal. U. of Colorado-Colorado June 6, 2016 Springs 49 Questions on 110? June 6, 2016 U. of Colorado-Colorado Springs

50 Fair Use Exception What is it? Benefits Multiple uses Technology neutral Flexible June 6, 2016 U. of Colorado-Colorado Springs

51 Fair Use 107 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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

June 6, 2016 U. of Colorado-Colorado Springs 52 Fair Use Doctrine Purpose and character transformative Nature of work Amount of work

Market effect June 6, 2016 U. of Colorado-Colorado Springs 53 First Factor: Purpose & Character Favors Fair Use

Nonprofit Educational Personal Teaching Research Scholarship Criticism Commentary News reporting June 6, 2016 Favors Permission

Commercial use Entertainment For profit U. of Colorado-Colorado Springs 54 Second Factor: Nature of work Favors Fair Use

Fact Published June 6, 2016 Favors Permission Fiction Unpublished U. of Colorado-Colorado Springs 55 Third Factor: Amount

Favors Fair Use Small amount Amount used is not significant to work June 6, 2016 Favors Permission Large amount Amount used is heart of work

U. of Colorado-Colorado Springs 56 Fourth Factor: Market Effect Favors Fair Use No major impact Licensing/ permissions

unavailable Limited/restricted access to work User/institution owns legal copy June 6, 2016 Favors Permission Major impact Licenses/ permissions available Work is made available to world Use is repeated

U. of Colorado-Colorado Springs 57 The Legal Process Civil v. Criminal The Courts State v. Federal The Lawsuit Settlement or Verdict Appeals process Final resolution June 6, 2016

U. of Colorado-Colorado Springs 58 The June 6, 2016 HOT Cases U. of Colorado-Colorado Springs 59 Its OVER!!! June 6, 2016 U. of Colorado-Colorado

Springs 60 Google Saga Timeline 2004 - Library Book Project began 2005 - Authors Guild filed suit 2013 District court ruled in favor of Google October, 2015 US CT of Appeals for 2nd Circuit unanimously affirmed lower court ruling of fair use April, 2016 US Supreme Court refused

to hear appeal June 6, 2016 U. of Colorado-Colorado Springs 61 Google Fair Use Analysis 1st factor purpose & character 2nd factor nature of work

Distinction between fact & fiction not dispositive 3rd factor amount Database & snippets are transformative Appropriate for creation of search database Snippet view does not offer significantly competing substitute and has significant protections 4th factor market effect Database does not serve as substitute for original work

Snippets do not harm the value of the original June 6, 2016 U. of Colorado-Colorado Springs 62 Georgia State Is it Over??? Georgia State Timeline 2008 Sage, Cambridge & Oxford filed suit 2009 GSU revised policy

May, 2012 Dist. Ct. found 5 out of 99 infringed publishers copyrights. Publishers appealed Oct, 2014 11th Cir. Ct. of Appeals reversed & remanded for review Individual assessments - Arithmetic approach all factors equal X Bright line rule X 3/31/16 Dist. Ct issued opinion 4 out of 49 infringements 2016+ - Remedy for infringements June 6, 2016

U. of Colorado-Colorado Springs 64 Fair Use Analysis District Court 1st time around Purpose & Character - GSU Non-profit, educational Nature - GSU Factual

Amount It depends 10 chapters+ = 1 chapter Less than 10 chapters 10% Market effect It depends Easily accessible, reasonably priced, format friendly June 6, 2016 U. of Colorado-Colorado Springs 65 11th Circuit Court of Appeals Individual assessments -

Arithmetic approach all factors equal X Bright line rule X June 6, 2016 U. of Colorado-Colorado Springs 66 District Court 2nd time around 48 works reviewed 7 infringements/4 works 1st factor Purpose & Character 2nd factor nature

Mostly neutral 3rd factor amount Educational use Small % or entire work Narrowly tailored to accomplish specific teaching objective 4th factor market effect

Harm to potential market for original of Colorado-Colorado Harm to valueU.of work June 6, 2016 Springs 67 Now the Remedy Phase! June 6, 2016 U. of Colorado-Colorado Springs 68

Authors Guild v. June 6, 2016 U. of Colorado-Colorado Springs 69 HathiTrust Timeline 2011 Lawsuit filed 2012 District Court decision rules in favor of HathiTrust summary judgment

2014 2nd Cir. Ct. of Appeals affirms Dist. Ct. ruling 2015 settlement reached between parties on preservation issue June 6, 2016 U. of Colorado-Colorado Springs 70 Fair Use Analysis Transformative use Blind and visually challenged Text mining

Benefit to society June 6, 2016 U. of Colorado-Colorado Springs 71 Quotes: How Much is Too Much??? The past is never dead. Its not even past. William Faulkner Requiem for a Nun The past is not dead. Actually, its not even past. Woody Allen - Midnight in Paris Faulkner Literary Rights v. Sony (2013) June 6, 2016

U. of Colorado-Colorado Springs 72 Fair Use Questions??? June 6, 2016 U. of Colorado-Colorado Springs 73 The Digital Millennium Act (DMCA) June 6, 2016

U. of Colorado-Colorado Springs 74 Anticircumvention 1201 No circumventing technological measures that protect copyrighted works CDs and DVDs Technology that locks devices Prohibits creation of

products/programs whose sole/primary purpose is to circumventU. ofprotections Colorado-Colorado June 6, 2016 Springs 75 ISP Liability 512 Take down notices Put back options June 6, 2016 U. of Colorado-Colorado

Springs 76 Rulemaking Process Every 3 years Movie clips MOOCs June 6, 2016 U. of Colorado-Colorado Springs 77

Policies v. Procedures Policy Use, ownership or both Procedures Digitization June 6, 2016

Archives/special collections E-reserves Institutional repositories U. of Colorado-Colorado Springs 78 Contracts/ Licenses Publicity/Privacy Trademarks June 6, 2016

U. of Colorado-Colorado Springs 79 Contracts/Licenses Electronic resources Deeds of gift Terms of use June 6, 2016 U. of Colorado-Colorado Springs 80

Electronic Resources Databases E-books E-journals June 6, 2016 U. of Colorado-Colorado Springs 81 Deeds of Gift Transfer of copyright

Ownership of v. artifact Now, later, never implications Third party content Restrictions Confidentiality Belfast Project June 6, 2016 U. of Colorado-Colorado

Springs 82 Terms of Use Internal Who can access the collection? What can they do with it? June 6, 2016 U. of Colorado-Colorado Springs 83

& Social Media June 6, 2016 U. of Colorado-Colorado Springs 84 Rights of Privacy & Publicity Do we have a right of privacy? Is it federal, state??? Common Law of Privacy

Constitutional right to privacy v. privacy tort Tort law State statutes Origin traced to Harvard Law Review article in 1890 right to be left alone June 6, 2016 U. of Colorado-Colorado Springs 87 Targeted Privacy Laws

FERPA HIPPA June 6, 2016 U. of Colorado-Colorado Springs 88 1st Question to Always Ask Is There a Reasonable Expectation of Privacy??? Living or Dead Right of Publicity controlling

commercial use of ones identity Name, image, likeness Indiana June 6, 2016 Voice Signature Photograph Distinctive appearance Gestures mannerisms U. of Colorado-Colorado

Springs 90 Privacy vs. Publicity Privacy dies with person Publicity is for commercial uses Length of publicity rights determined by state statutes Indiana 100 years June 6, 2016 U. of Colorado-Colorado Springs

91 What can I do with my work? The Publishing Process Hmmmmm WFH Employer-employee Independent contractors Joint Author/Creator

Agreement among authors prior to creation of work Division of royalties Non-exclusive license v. exclusive license June 6, 2016 U. of Colorado-Colorado Springs 93 Creative Commons

Share Attribution No Derivatives Non-Commercial CC-BY - attribution only CC0 no restrictions June 6, 2016 U. of Colorado-Colorado Springs 94 My article has been accepted for publication - YIPPEE

June 6, 2016 U. of Colorado-Colorado Springs 95 Please sign on the dotted line Copyright transfer agreements or Assignment of copyright or Publication agreements or Author agreements

June 6, 2016 U. of Colorado-Colorado Springs 96 You want to do WHAT with your work??? Post the work on your web site Distribute it to colleagues/students Use portions or all of it in future publications Add to your institutional repository

June 6, 2016 U. of Colorado-Colorado Springs 97 I have rights too..but NOT if you give them to the publisher Reproduction Distribution Public display Public performance Derivative works June 6, 2016 U. of Colorado-Colorado Springs

98 So - What Now? Sherpa/Romeo Negotiate agreement What rights do you need? Attach author addendum CIC, Sparc June 6, 2016 U. of Colorado-Colorado Springs

99 Author Addendum Non-exclusive rights to author to use work for teaching and scholarly activities Non-exclusive rights to authors institution to use work for teaching and scholarly activities 6 month embargo on depositing into institutional, society or funding repositories June 6, 2016

U. of Colorado-Colorado Springs 100 Signed Contract Now What? Understand terms Abide by terms Retain contract June 6, 2016 U. of Colorado-Colorado Springs 101

Open/Public Access Mandates White House Directive NIH Federal agencies w/ $100 m + in R&D Harvard and its model And the list goes on June 6, 2016

U. of Colorado-Colorado Springs 102 Open Access June 6, 2016 U. of Colorado-Colorado Springs 103 Copyright vs. Plagiarism Plagiarism- apassing Copyright

legal right off someone that protects elses work original as your works own Unethical Federal law but not necessarily illegal Legal penalties for Misappropriation

ofinfringement someone elses work Fair use exception Lack of attribution June 6, 2016 U. of Colorado-Colorado Springs 104 Manage Your Copyright Do Not Let It Manage You June 6, 2016 U. of Colorado-Colorado

Springs 105 Formulate your Strategy Is the work protected by copyright? No Use it any way you choose Yes Go to next question Does an exception apply?

Yes use it according to exception No obtain written permission to use it June 6, 2016 U. of Colorado-Colorado Springs 106 Words of Wisdom

Only use legally acquired copies Be aware of your audience who has access to the materials Free access does not equal free use Utilize exceptions Assess risk Request appropriate permission U. of Colorado-Colorado June 6, 2016 Springs 107 Questions to Ponder What should the Next Great Copyright Act look like? How can you manage your

copyrights better? How will your behavior change in approaching the use of copyrighted works for your teaching, research and personal U. of Colorado-Colorado use? June 6, 2016 Springs 108

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