What’s New in Copyright Deep Dive Part I

Laura McKinnon, MLIS,
JD
Laura.Mckinnon@unt.ed
u
Director of the Copyright
Advisory Office
University of North
Texas
Brett D. Currier, MSLS,
JD
brett.currier@uta.edu
Director of Scholarly
Communications
University of Texas at
Arlington
3
INTRODUCTIONS

PURPOSE OF ©
“to promote the progress of science and the useful arts, by securing for
limited times to authors and inventors the exclusive right to their
respective writings and discoveries.”
(Article I, §8 of the U.S. Constitution)
Copyright is supposed to promote learning and invention
The Copyright Act is located in Title 17 of the United States Code.

WHAT CAN BE COPYRIGHTED?
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; and
Architectural works.
17 U.S.C. § 102

WHAT CANNOT BE COPYRIGHTED?
Ideas & theories
 Copyright protects expression of ideas, but not the ideas themselves
Facts & discoveries
 Including data
U.S. government works (federal level) produced by a government employee
in the scope of their duties***
Works whose copyrights have expired – enter the public domain
 Works in the public domain can be used freely by anyone for any purpose

A NOTE ABOUT US GOV’T WORKS:
U.S. government works (federal level) produced by a government employee in
the scope of their duties
 This means federal statutes, case law, and regulations do NOT have
copyright protection
 However, content from commercial publishers like annotations and
headnotes DOES have copyright
 Syllabi from SCOTUS does NOT have copyright protection
 Prepared by federal employee in scope of their duties
 State compilations of cases, statutes, regulations
 Generally considered compilations of facts, so no copyright protection

WHEN DOES © PROTECTION BEGIN?
Copyright protection begins automatically in:
 “original works of authorship fixed in any tangible medium of expression…”
17 U.S.C. § 102(a)
 Only needs a small amount of creativity to be original
 Writing, painting, taking pictures, building a sandcastle, blogging, and Tweeting
are all fixed works in tangible mediums
 Fixed ≠ permanent

NO FORMALITIES NEEDED FOR PROTECTION
 You do not have to publish your work to get copyright protection
 You do not have to register your work with the Copyright Office to get
protection
 You do not have to provide notice (use the © symbol) in order to get
protection
 *Although, you cannot sue for statutory damages or attorneys’ fees until after
your work is registered with the Copyright Office

© OWNERS’ EXCLUSIVE RIGHTS
1. Reproduction;
 Copies
2. Derivatives;
 New works based on the original copyrighted work
3. Distribution;
 To the public by sale, rental, lease, or lending
4. Public performance;
 Literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audio visual
works
5. Public display;
 Literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works
6. Public performance of work via digital audio transmission
 This is a very limited right that applies only to sound recordings
 © owners of sound recordings only have the exclusive rights to #1, #2, #3, and #6
on this list!
17 U.S.C. § 106

HOW LONG DOES © PROTECTION LAST?
Works created in 1978 or later:
 Created by a person = life of the author + 70 years
 Created by a corporation (and works made for hire) = the shorter of 120 years from creation or
90 years from publication
Works created before 1978:
 Use this chart – http://copyright.cornell.edu/resources/publicdomain.cfm
Works created before 1923 are in the public domain
Foreign works
 Use chart above

EXCEPTIONS TO EXCLUSIVE RIGHTS
§107 Fair Use
§108 Reproduction by Libraries and Archives
§110(1) Face-to-Face Teaching
§110(2) TEACH Act
*this list is not exhaustive

FAIR USE
Fair use is detailed in §107 of the Copyright Act and allows things like:
 “criticism, comment, news reporting, teaching, scholarship, research”
17 U.S.C. §107
Exception to exclusive rights
It only applies to works that have © protection
 if the work is in the public domain, you do not need to rely on fair use
Fair use is a balancing test and courts look at four factors when
determining whether a use is fair

FAIR USE BALANCING TEST
Four factors:
1. Purpose of use
 Nonprofit? Educational? Commercial?
2. Nature of work used
 Published? Unpublished? Nonfiction? Creative?
3. Amount and substantiality of work used
 Just a small amount? Is it the heart of the work?
4. Effect on market of work
 Will it compete with sales of the original?
Strong emphasis on whether use is transformative
1. Is the purpose of your use different than the original purpose of the work?
2. If yes, is the amount used appropriate to your transformative use? (too much, not
enough?)

FAIR USE BALANCING TEST
Only a court can definitively determine whether a use is fair – it is a balancing test,
so you cannot just check off each factor, you must weigh them all and
determine whether your use overall leans in favor or against fair use
 There are several checklists that can help you make a determination
Case by case analysis – you must look at each use individually to determine
whether it is fair
Fair use is flexible and vague -- continually evolves as the 4 factors are applied to
new cases
If fair use applies you do NOT need permission
If fair use does not apply, you can always seek permission

• Clear’s Copyright Website
• http://clear.unt.edu/copyright
• Check list
• http://www.library.unt.edu/sites/d
efault/files/documents/fair_use_
analysis_for_unt_libraries_pdf.p
df
UNT’S
FAIR USE CHECKLIST

• U.S. Copyright Office
Fair Use Index
• Searchable database that
provides citations to and
summaries of court
opinions dealing with fair
use
• Tool to understand fair
use and how to apply it
• http://www.copyright.go
v/fair-use/fair-
index.html
FAIR USE INDEX

FACE-TO-FACE TEACHING
“performance or display of a work by instructors or pupils in the course of face-to-
face teaching activities of a nonprofit educational institution, in a classroom or
similar place devoted to instruction, unless, in the case of a motion picture or
other audiovisual work, the performance, or the display of individual images, is
given by means of a copy that was not lawfully made under this title, and that
the person responsible for the performance knew or had reason to believe was
not lawfully made…”
Must be in a classroom
Must be in person
Must be at a nonprofit educational institution
17 U.S.C. §110(1)

TEACH ACT
Notwithstanding the provisions of section 106, the following
are not infringements of copyright:
…
• the performance of a nondramatic literary or
musical work or reasonable and limited portions of
any other work, or display of a work in an amount
comparable to that which is typically displayed in
the course of a live classroom session, by or in the
course of a transmission, if—
17 U.S.C. § 110(2)

WHAT DOES TEACH ALLOW?
• Performance of nondramatic literary or musical
work;
OR
• Reasonable and limited portions of ANY other work;
OR
• Display of work (in an amount that would typically
be used in a live, face-to-face classroom);
If the following conditions are met:
17 U.S.C. § 110(2)
25

TEACH ACT
(A) the performance or display is made by, at the direction of, or under the actual
supervision of an instructor as an integral part of a class session offered as a
regular part of the systematic mediated instructional activities of a
governmental body or an accredited nonprofit educational institution;
 Instructor makes, directs, or supervises performance or display;
AND
 Performance/display is integral to class;
AND
 Class is offered as regular part of instructional activities of:
 Governmental body;
OR
 Accredited, nonprofit educational institution
17 U.S.C. § 110(2)

TEACH ACT
(B) the performance or display is directly related and of material assistance
to the teaching content of the transmission;
The performance/display must be
directly related to
AND
of material assistance to
the teaching content of the online course
17 U.S.C. § 110(2)

TEACH ACT
(C) the transmission is made solely for, and, to the extent technologically
feasible, the reception of such transmission is limited to—
 (i) students officially enrolled in the course for which the transmission is made;
or
 (ii) officers or employees of governmental bodies as a part of their official duties
or employment; and
Transmission is made for and is limited to:
Students officially enrolled in that specific course
OR
Employees of governmental bodies as part of their official duties
17 U.S.C. § 110(2)

TEACH ACT
(D) the transmitting body or institution—
 (i) institutes policies regarding copyright, provides informational materials to faculty,
students, and relevant staff members that accurately describe, and promote
compliance with, the laws of the United States relating to copyright, and provides
notice to students that materials used in connection with the course may be subject to
copyright protection; and
Institution must:
• Create copyright policies
• Provide informational materials to faculty, staff, students that
accurately describe and promote compliance with U.S. © law
• Provide notice to students that materials may be subject to ©
protection
AND…
17 U.S.C. § 110(2)

TEACH ACT
 (ii) in the case of digital transmissions—
 (I) applies technological measures that reasonably prevent—
 (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or
institution for longer than the class session; and
 (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
 (II) does not engage in conduct that could reasonably be expected to interfere with technological measures
used by copyright owners to prevent such retention or unauthorized further dissemination;
Institution must use technology to prevent:
 retention of work for longer than the class session
AND
 Unauthorized dissemination by students to others
Institution must not tamper with technology used by © owners to prevent
retention or dissemination
30

http://teaching.colostate.edu/guides/cop
yright/downloads/checklist.pdf
• Can help you
determine whether
you are meeting the
requirements of
TEACH
COLORADO STATE UNIVERSITY’S
TEACH ACT CHECKLIST

USING OTHERS’ WORKS
Embedding or linking to outside websites, videos, etc. does NOT infringe
copyright
Quotes and excerpts are generally recognized as fair use in academia
Photographic reproductions of public domain images (including 2d works of art)
do not have copyright protection – Bridgeman Art Library v. Corel Corp.
 https://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm
 Does not apply to photos of 3d art (sculpture, architecture, etc.), but fair use
may be appropriate
Terms of licenses and other contracts generally trump copyright exemptions like
fair use

PRESENTATION RESOURCES
Public Domain
 Public Domain & Copyright Term
chart:http://copyright.cornell.edu/resources/publicdomain.cfm
 Find CC and Public Domain works:
http://guides.library.harvard.edu/content.php?pid=500088&sid=4113929
Copyright – General
 UNT Fair Use Checklist:
https://www.library.unt.edu/sites/default/files/documents/fair_use_analysis_for_unt_libra
ries_pdf.pdf
 Colorado State University TEACH Act Checklist:
http://teaching.colostate.edu/guides/copyright/downloads/checklist.pdf
 U.S. Copyright Act: http://copyright.gov/title17/
 §102 Subject Matter of Copyright
 §106 Exclusive Rights in Copyrighted Works
 §107 Limitations on Exclusive Rights: Fair Use
 §110 Limitations on Exclusive Rights: Exemption of Certain Performances and Displays

PART II BEGINS AT 2:15PM
Overview of recent copyright case law including:
• HathiTrust
• GSU
• Google Books
34

What’s New in Copyright Deep Dive Part I

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