Copyright Presentation

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Copyright in the Digital Age: Do Good Fences Make Good

Neighbors?

Alexandra DolanEDG 6931 Designing and Delivering Online Content

1Sunday, March 29, 2009Sources:

Bird, Sarah. (2007). Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work is Protected Automatically. SEOMozBlog. Retrieved March 17, 2009 from: http://www.seomoz.org/blog/why-you-should-go-through-the-trouble-of-registering-your-copyright-when-everyone-tells-you-that-you

Crews, Kenneth. (2003). New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act. American Library Association. Retrieved March 17, 2009 from http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939#newc

Electronic Frontier Foundation. (2002). EFF: Fair Use FAQ. Electronic Frontier Foundation Online. Retrieved March 17, 2009 from http://w2.eff.org/IP/eff_fair_use_faq.php

United States Copyright Office. (2006). Copyright in General. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/help/faq/faq-general.html#what

United States Copyright Office. (2006). Copyright Office Basics, Circular One. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/circs/circ1.html#wci

United States Copyright Office. (2006). Fair Use. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/fls/fl102.html



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Copyright: A Gross Oversimplification “Copyright is a form of protection grounded in

the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.”

-Source: US Copyright Office, Copyright in General, 2006.

2Sunday, March 29, 2009“One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work” (US Copyright Office, 2006, Fair Use). However, copyright has some important limitations; most notably: Fair Use, and the applicability of the TEACH Act, which we will go into later.



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What Can I Copyright? • Copyright protection is applicable to original content fixed in a

tangible form of expression. • If you create something on your own time, for your own

purposes, you own it and are the copyright owner.• If you create something with others, you may share copyright

ownership. • If you create something for your employer while on the clock,

the employer is the copyright owner. • Sources:

Copyright Office Basics, Circular One. (2006). US Copyright Office. Retrieved March 17, 2009 from http://www.copyright.gov/circs/circ1.html#wci

Bird, Sarah. (2007). Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work is Protected Automatically. SEOMozBlog. Retrieved March 17, 2009 from: http://www.seomoz.org/blog/ why-you-should-go-through-the-trouble-of-registering-your-copyright-when-everyone-tells-you-that-you

3Sunday, March 29, 2009“What Works Are Protected? Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories: 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. These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”” From Copyright Office Basics, Circular One. (2006). US Copyright Office. Retrieved March 17, 2009 from http://www.copyright.gov/circs/circ1.html#wci

Copyright ownership is conveyed automatically, but there are many practical reasons why one would and should register their copyright with the US Copyright Office. For more information, please visit: Bird, Sarah. (2007). Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work is Protected Automatically. SEOMozBlog. Retrieved March 17, 2009 from: http://www.seomoz.org/blog/why-you-should-go-through-the-trouble-of-registering-your-copyright-when-everyone-tells-you-that-you



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Copyrightable Online Material:

• Includes: »Websites»Blogs»Emails»Videos and Podcasts»Graphics and Photos»Sounds and Music

Source: Bird, 2007.

4Sunday, March 29, 2009

“Exceptions to Copyright: Copyright does not protect ideas, procedures, systems, or methods of operation. Thus, copyright does not protect my ideas for future blog posts or my delicious recipe for smoked cake. Copyright does not protect facts and purely mechanical, clerical content. The phone book is a great example of this.Copyright does not protect really trite content. Pop music titles/lyrics are often banal to the extreme. If you wrote a song with the lyric "I love you baby," don't count on copyright protection. Copyright does not protect content that is in the public domain. What is in the public domain? This deserves a more detailed post down the road, but generally it's content that is very old and the copyright has expired. There are a lot of different rules that determine how long copyright will lasts. Thus, I have to break out the "it depends" answer. But if the content was first published before 1923, it's in the public domain by now.Copyright does not protect content authored by the U.S. government. Thus, we can quote government reports, laws, etc. extensively without crediting the U.S. federal government. Interestingly, this is not true about other governments; the U.K. for example.Copyright also does not protect so-called "fair uses." This is definitely the topic of a future post because it is an important, controversial, and evolving concept. To put it generally, you can use other people's copyrighted materials, but only for fair uses such as news reporting and teaching. In the U.S. you can also use other people's material for parody. (Yay!)”From: Bird, Sarah. (2007). Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work is Protected Automatically. SEOMozBlog. Retrieved March 17, 2009 from: http://www.seomoz.org/blog/why-you-should-go-through-the-trouble-of-registering-your-copyright-when-everyone-tells-you-that-you



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What Isn’t Protected by Copyright:

A non-inclusive list: • Intangible Forms of Expression• Common Knowledge, Phrases, Designs• Government Works• Ideas, Procedures, and Processes• Content in the Public Domain• Fair Uses of Copyrighted Material

– Sources: Bird, 2007, and US Copyright Office, 2006.

5Sunday, March 29, 2009“What Is Not Protected by Copyright? Several categories of material are generally not eligible for federal copyright protection. These include among others: Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded); Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents; Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)”From: Copyright Office Basics, Circular One. (2006). US Copyright Office. Retrieved March 17, 2009 from http://www.copyright.gov/circs/circ1.html#wci



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Fair Use: A Check & Balance on the

Power of Copyright

Rights conveyed to copyright owners are not absolute, the rights are not guaranteed

for an infinite period of time

6Sunday, March 29, 2009“1. What is Fair Use?In essence, fair use is a limitation on the exclusive rights of copyright holders. The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered "fair" does not infringe copyright, even if it involves one of the exclusive rights of copyright holders. Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work. 2. How does Fair Use fit with Copyright Law?Copyright law embodies a bargain: Congress gave copyright holders a set of six exclusive rights for a limited time period, and gave to the public all remaining rights in creative works. The goals of the bargain are to give copyright holders an economic incentive to create works that ultimately benefit society as a whole, and by doing so, to promote the progress of science and learning in society. Congress never intended Copyright law to give copyright holders complete control of their works. The bargain also ensures that created works move into "the public domain" and are available for unlimited use by the public when the time period finishes. In addition, as part of the public's side of this bargain, U.S. Copyright law recognizes the doctrine of "fair use" as a limitation on copyright holders' exclusive right of reproduction of their works during the initial protected time period. The public's right to make fair use of copyrighted works is a long-established and integral part of US copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment's guarantee of freedom of expression. The Supreme Court has described fair use as "the guarantee of breathing space for new expression within the confines of Copyright law". 3. How Do You Know If It's Fair Use?There are no clear-cut rules for deciding what's fair use and there are no "automatic" classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative.The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.4. What's been recognized as fair use?Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies. In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.) Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses: Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.5. Is Fair Use a Right or Merely a Defense?Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.”From: Electronic Frontier Foundation. (2002). EFF: Fair Use FAQ. Electronic Frontier Foundation Online. Retrieved March 17, 2009 from http://w2.eff.org/IP/eff_fair_use_faq.php

“Fair Use: One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining 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;amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.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. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.FL-102, Revised July 2006” From: United States Copyright Office. (2006). Copyright in General. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/help/faq/faq-general.html#what



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Fair Use: 4 Determining Factors

1. Purpose and character of use;2. Nature of Copyrighted Work3. Amount and substantiality of portion used in

relation to work as a whole;4. Effect of use upon the potential market for or

value of the copyrighted work. – United States Copyright Office. (2006). Fair Use. US

Copyright Office Online.

7Sunday, March 29, 2009“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining 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;amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.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. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.” From: United States Copyright Office. (2006). Fair Use. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/fls/fl102.html



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The TEACH ACT• The "Technology, Education and Copyright

Harmonization Act"

• Became law on November 2, 2002

• Already behind the times in terms of technology and distance education.

Source: Crews, Kenneth. (2003). New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act. American Library Association.

8Sunday, March 29, 2009“When educators use any of these works in their teaching, they are using copyright-protected materials. Among the rights of copyright owners are rights to make copies and rights to make public performances and public displays of the works. An assembled-or even dispersed-group of students may well constitute the "public" under the law. Consequently, educators frequently incur possible violations of owners' rights whenever they copy materials as handouts, upload works to websites, "display" slides or other still images, or "perform" music, videos, and other works. In the context of traditional, face-to-face teaching, educators long have debated the application of "fair use" to making copies, and the Copyright Act since 1976 has included a relatively simple and broad provision allowing "performances" and "displays" in the face-to-face classroom setting (Section 110(1)). The rules for distance education, however, are significantly different. Both the meaning of fair use and the details of the specific statute (Section 110(2)) become much more rigorous when the materials are uploaded to websites, transmitted anywhere in the world, and are easily downloaded, altered, or further transmitted by students and other users-all posing possible threats to the interests of copyright owners.”Crews, Kenneth. (2003). New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act. American Library Association. Retrieved March 17, 2009 from http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939#newc

Teachers use and by necessity, reproduce copyrighted works to use in teaching and learning. Whether that runs counter to the rights of copyright and is within the bounds of fair use and the TEACh act is often a subjective determination.



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TEACH Act:• Permits a wider range of works to be used in

the instructional context. • Does not fully encompass distance education in

its current incarnation. • Many requirements and conditions required of

educators, technology officers and institutions in order to merit protection under TEACH Act.

Source: Crews, Kenneth. (2003). New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act. American Library Association.

9Sunday, March 29, 2009“Context of Distance EducationComprehending the practical implications of the new legislation also requires understanding the congressional vision of "distance education" and the relationship between educators and the institution. The TEACH Act is a clear signal that Congress recognizes the importance of distance education, the significance of digital media, and the need to resolve copyright clashes. The new law is, nevertheless, built around a vision that distance education should occur in discrete installments, each within a confined span of time, and with all elements integrated into a cohesive lecture-like package.In other words, much of the law is built around permitting uses of copyrighted works in the context of "mediated instructional activities" that are akin in many respects to the conduct of traditional classroom sessions. The law anticipates that students will access each "session" within a prescribed time period and will not necessarily be able to store the materials or review them later in the academic term; faculty will be able to include copyrighted materials, but usually only in portions or under conditions that are analogous to conventional teaching and lecture formats. Stated more bluntly, this law is not intended to permit scanning and uploading of full or lengthy works, stored on a website, for students to access throughout the semester-even for private study in connection with a formal course.”

Benefits of the TEACH ActThe primary benefit of the TEACH Act for educators is its repeal of the earlier version of Section 110(2), which was drafted principally in the context of closed-circuit television. That law permitted educators to "perform" only certain types of works and generally allowed transmissions to be received only in classrooms and similar locations. These restrictions, and others, usually meant that the law could seldom apply to the context of modern, digital transmissions that might utilize a range of materials and need to reach students at home, at work, and elsewhere. The new version of Section 110(2) offers these explicit improvements:Expanded range of allowed works. The new law permits the display and performance of nearly all types of works. The law no longer sweepingly excludes broad categories of works, as did the former law. However, a few narrow classes of works remain excluded, and uses of some types of works are subject to quantity limitations.Expansion of receiving locations. The former law limited the transmission of content to classrooms and other similar location. The new law has no such constraint. Educational institutions may now reach students through distance education at any location.Storage of transmitted content. The former law often permitted educational institutions to record and retain copies of the distance-education transmission, even if it included copyrighted content owned by others. The new law continues that possibility. The law also explicitly allows retention of the content and student access for a brief period of time, and it permits copying and storage that is incidental or necessary to the technical aspects of digital transmission systems.Digitizing of analog works. In order to facilitate digital transmissions, the law permits digitization of some analog works, but in most cases only if the work is not already available in digital form.None of these benefits, however, is available to educators unless they comply with the many and diverse requirements of the law. The rights of use are also often limited to certain works, in limited portions, and only under rigorously defined conditions. The remainder of this paper examines those requirements.”




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Things to Ponder: • How should we proceed when the laws that

govern us fail to keep pace technology?• How can we balance the needs of education

and evolving educational settings with the rights of copyright owners?

• Is copyright an anachronism in the digital age?

10Sunday, March 29, 2009Sources:

Bird, Sarah. (2007). Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work is Protected Automatically. SEOMozBlog. Retrieved March 17, 2009 from: http://www.seomoz.org/blog/why-you-should-go-through-the-trouble-of-registering-your-copyright-when-everyone-tells-you-that-you


Electronic Frontier Foundation. (2002). EFF: Fair Use FAQ. Electronic Frontier Foundation Online. Retrieved March 17, 2009 from http://w2.eff.org/IP/eff_fair_use_faq.php

United States Copyright Office. (2006). Copyright in General. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/help/faq/faq-general.html#what

United States Copyright Office. (2006). Copyright Office Basics, Circular One. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/circs/circ1.html#wci

United States Copyright Office. (2006). Fair Use. US Copyright Office Online. Retrieved March 17, 2009 from http://www.copyright.gov/fls/fl102.html