09.08.16 Librarian Training re Copyright in Course Instruction

Instructors’ Use of

Copyrighted Materials

Rachael G. SambergSept. 2016

Topics Today Copyright Basics

What is copyright What is protected / not protected Using copyrighted materials

When permission needed Exceptions

Copyright Compliance in the Classroom Best Practices Workflow Liability for Oopsies

What is Copyright?

Constitution Empowers Congress to Act

U.S. Constitution Art. I, § 8: Congress shall have the 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.”

What laws did Congress make, and what are the rewards?

The Copyright Act:Reward of Exclusive Rights…

Reproduction Preparation of derivative

works (such as adaptations) Distribution Public performance Public display Public performance of

sound recordings via digital audio transmission

…for Limited Periods of Time

Length varies, based on: Type of work When created Who was author When first published etc.

Expect at least author’s life + 70 years from author’s death

Means that within “protected” time period, author’s permission needed to

reproduce, display, perform, etc. the work

A Few Other Prerequisites

Protects expressions, not ideas or facts

Must be authored, original, and fixed

Copyright & the Underlying Work

Separate from owning physical work If you buy book, can’t make

bunch of copies for everyone Instead, copyright is retained

by one or more of the author, publisher, etc.

Can’t an instructor catch a break?

Limitation on Copyright:Works in Public Domain Not ProtectedWorks by U.S. Federal Government

Works whose copyright term/duration has expired

https://commons.wikimedia.org/wiki/File:Britannica_Shakespeare_Droeshout_Engraving.jpg

Limitation on Copyright:Statutory Exemptions

Allow individuals to undertake one of the exclusive rights: Without obtaining

permission; Without payment of license

fee

Statutory Exemption: Fair Use (17 USC § 107)

1. Purpose and character of use (commercial purposes less likely fair than nonprofit educational purposes; whether use is “transformative” often dominates this factor’s analysis)

2. Nature of the copyrighted work (more likely fair if you’re using factual/scholarly work)

3. Amount and substantiality (size & importance of portion used in relation to whole)

4. Effect of use upon potential market

(less likely fair if use is substitute for purchasing original)

Is use fair? All four factors must be evaluated

No statutory 10% rule

Always fair to link, rather than post copy

Other Statutory Exemptions: TEACH ACT §110 of Copyright Act allowed display and

performance in face-to-face teaching in nonprofit educational institution

Amended § 110(2) permits same asynchronously (e.g. on course-restricted sites). However, limited to: Performance of entire nondramatic literary or

musical work (e.g. recorded reading of a poem or novel)

Performance of limited and reasonable portion of any other work (e.g. scene from a film)

Display of any work in amount comparable to what would be used during physical class setting (e.g. portion of film you would show in class, or portion of a chapter students would be asked to read during class)

In Summary Copyright gives copyright owners six

exclusive rights for a designated period of time.

Permission needed to undertake any of those rights if copyright exists and has not expired.

However, no permission needed if intended use falls under statutory exemptions.

Nor is permission needed if you link to the content, rather than copy/reproduce/post the actual content, itself.

What to do with this info?

The Copyright Workflow for Posting to bCourses

Instructors are responsible for making copyright determinations If instructors seek admins’ support in uploading materials, they

should communicate their copyright determination to admins Library can help point to, discuss, and explain guidelines and

options

Workflow Based On UC Copyright Policy

http://copyright.universityofcalifornia.edu/use/teaching.html

If Instructor’s answer to any question is “yes”: If Instructor’s answer to all questions is “no,” two options:

Material can be posted directlyto bCourse site

(though link always possible/preferable

)

Post link to content,

rather than content,

itselfIf link can’t be

found, or Instructor prefers

posting copies, request copyright

holder’s permission

OR

Copyright Workflow for Posting to bCoursesInstructor Makes Decision About Content to Be Posted.

1. Has permission or a license already been conferred? 2. Is the material in the public domain?3. Is it fair use?4. Is use subject to another exception (e.g. Teach Act)?

Is the workflow answer “yes”?Library’s guide can help instructors answer the workflow questions

http://guides.lib.berkeley.edu/instructor-copyright-bcourses

If workflow answer is “no,” finding links

Links to Articles, Books, Video, etc.

Cody’s libguide: http://guides.lib.berkeley.edu/readings-in-bcourses

If workflow answer is “no,” getting permission

Get Permission or a License Ask the author or publisher

Preserve the correspondence

Use a commercial service to secure a license Will be for length of class, probably also # of students,

etc.

What about oopsies?

Possible Consequences (“Remedies”) Grant of an injunction Impounding and/or destruction of infringing articles Award of damages and profits; statutory damages

election option Award of costs and attorney’s fees Criminal liability

Limitations on Remedies Against State Institutions

State & tribal governments, and component units such as state university, immune from suit for monetary damages.

However, these entities can potentially be sued for injunctive relief to prevent future infringement.

State Institution Employees Acting in Official Capacity

Action for injunctive relief against state employees acting in official capacity.

Can also be award of attorneys’ fees to the prevailing party.

No award of damages & profits, including no statutory damages

State Institution Employees Acting in Personal Capacity on the Job

May also be sued in personal capacity (e.g. a professor acting not on behalf of an institution) both for money and an injunction. Further, many state liability regulations will not allow the state to defend an employee who engages in illegal acts.

However, no statutory damages if infringer an employee of nonprofit educational institution, library, or archives and had reasonable grounds for believing (and hence believed) that use was fair. So, monetary remedies limited to actual damages and employee’s profits.

Best Practices ?

USE THE WORKFLOW

All photos © 2015-2016 by Rachael G. SambergPresentation issued under Attribution-ShareAlike 4.0 Int’l License (CC BY-SA 4.0)

Our Offer to InstructorsLibrary can assist with fair use and other statutory exemption questions: http://guides.lib.berkeley.edu/instructor-copyright-bcourses; rsamberg@berkeley.edu

Library can help you find materials and links: http://guides.lib.berkeley.edu/readings-in-bcourses; chennesy@berkeley.edu

SURVEY!

http://bit.ly/9816_training