2. 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
4. 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?
5. 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
6. …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
7. A Few Other Prerequisites
Protects expressions, not ideas or facts
Must be authored, original, and fixed
8. 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.
10. Limitation on Copyright:
Works in Public Domain Not Protected
Works by U.S. Federal
Government
Works whose copyright
term/duration has expired
https://commons.wikimedia.org/wiki/File:Britannica_Shakespeare_Droeshout_Engraving.jpg
11. Limitation on Copyright:
Statutory Exemptions
Allow individuals to undertake one of
the exclusive rights:
Without obtaining permission;
Without payment of license fee
12. 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)
13. Is use fair?
All four factors must be evaluated
No statutory 10% rule
Always fair to link, rather than post copy
14. 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)
15. 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.
16. What to do with this info?
The Copyright Workflow for Posting to bCourses
17. 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
18. If Instructor’s answer to any question is “yes”: If Instructor’s answer to all questions is “no,” two options:
Material can be
posted directly
to bCourse site
(though link always
possible/preferable
)
Post link to
content,
rather than
content,
itself
If link can’t be
found, or
Instructor prefers
posting copies,
request copyright
holder’s
permission
OR
Copyright Workflow for Posting to bCourses
Instructor 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)?
19. Is the workflow answer “yes”?
Library’s guide can help instructors answer the workflow questions
http://guides.lib.berkeley.edu/instructor-copyright-bcourses
23. 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.
25. 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
26. 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.
27. 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
28. 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.
The Constitution is giving Congress the right to create laws that encourage progress/knowledge by rewarding authors for writing and making things. So, what laws did Congress make, and what are the rewards for writing/making things?
Pursuant to the grant of authority in the Constitution, Congress enacted the copyright act, codified in Title 17 of the U.S. Code. The rewards for authors are set forth in Section 106 of that Title, which grants copyright owner six main groups of exclusive rights for the length of their copyright.
You will sometimes hear these referred to as the “bundle” of rights that copyright creates.
Scenario to use: A novel about a scholarly communication officer who dreams of traveling, writing short stories, and taking photographs.
The exclusive rights created by Congress are not indefinite, however, be3cause indefinite protection would stymie innovation and the reuse of knowledge and art—essentially, negating the “progress” that copyright law was meant to protect. So, as the Constitution prescribed, Congress affords the exclusive rights to authors only for limited periods of time—meaning: copyright protection expires.
Length of protection varies, based on:
Type of work (unpublished vs. published)
When created
Who was author (person vs. work for hire; anonymous vs. signed)
When first published
etc.
That’s really the essence of copyright protection. Exclusive rights to do certain things for a limited period of time.
What this means in context is that: Within that “protected” time period, the author’s permission would be needed to reproduce, display, perform, etc. the work
Has to be authored by human – monkey selfie
In this photo, this was a street performance I attended. The performance is not protected by copyright, if they didn’t write down the choreography steps, or videotape it. However, the photo I took of the performance is protected by copyright.
What can I, as a creative person, do when I want to use works that have come before mine? Well, not everything falls within copyright protection.
Works by the U.S. (federal) government generally excluded from copyright protection, even though they are likely to fall within one of the categories listed before. (17 U.S.C. § 105)
Works whose copyright term/duration has expired
This is a photo of Shakespeare. Copyright in the photo itself has expired, so the photo is in the public domain. In addition, copyright in Shakespeare’s works has expired, such that if I wanted to re-write Romeo & Juliet with a completely different ending, I could.
Congress put certain exemptions in Title 17 of the Code
Fair use exception is intended to help encourage/protect criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Congress wanted to encourage this type of idea exchange, so they built into the law an exemption for use that would promote criticism, comment, etc.
Give Google Books example of transformative – text searching for sentiment analysis very different from purpose of publishing single book
In an academic context, they typically look at the first and fourth factors: Purpose/character of the use (for which they ask, is it transformative) and effect upon market for original.
Prior §110: Allowed display and performance in face-to-face teaching. Not making copies for in-class use; just display & performance (i.e. showing copy on screen)
The TEACH Act of 2002 expanded certain statutory exemptions of copyright law to accommodate distance education. In many cases, 17 USC § 107 (fair use) may provide a broader exception under which to post desired course content than the TEACH Act (§110(2)).
Performance of an entire nondramatic literary or musical work (such as the recorded reading of a poem or novel)
Performance of a limited and reasonable portion of any other work (such as a scene from a film)
Display of any work in an amount comparable to what would be used during a physical class setting (such as the portion of a film you would show in class, or the portion of a book chapter students would be asked to read in class)
To rely on the TEACH Act to post the above materials, the following parameters must be satisfied:
The instructor supervises students' use of the materials
The material is integral to the class session
The material is directly related to and of material assistance to teaching course content
The material is provided as a "mediated instructional activity" (i.e. provide the same type of material an instructor would use as part of a live classroom session)
The materials are accessible and and retained only for the length of a "class session"
The materials are not marketed as part of online instructional activities (i.e. they are not commercially-available digital educational materials)
The materials were not unlawfully copied (i.e. the instructor did not "know or have reason to believe" that they were not lawfully made and acquired)
Online guide to the Workflow provides assistance to instructors to help them answer each of those four questions.
Ask the author or publisher:
Could be as simple as e-mailing the professor/author who wrote it and asking her/him if you can use
Statutory damages can be $750-$30,000/infringement, up to $150,000 per infringement if willful
Criminal liability (17 USC § 506): Willful copyright infringement can also be a criminal violation, punishable by jail time lasting up to ten years (for repeat offenders) and fines ranging to $250,000 for an individual or $500,000 for an organization (18 USC § 2310)
This kind of immunity is called sovereign immunity
See: Corporate Counsel Guide to Copyright Law §2:23
BULLET 1: See, e.g., Marketing Info. Masters, Inc. v. Board of Trustees of the Cal State University, 552 F. Supp. 2d 1088 (S.D. Cal. 2008); Chavez v. Arte Publico Press, 204 F.3d 601 (5th Cir. 2000).
BULLET 2: See, e.g., NABP v. Board of Regents of U. Georgia, 633 F.3d 1297 (11th Cir. 2011); Ex Parte Young, 209 U.S. 123 (1908).
The Copyright Act was amended to subject states to liability for copyright infringement – they were otherwise immune under the 11th Amendment. However, at least three courts –including within the 9th Cir, which is CA, have found that the changed language does not constitute a valid abrogration of state sovereign immunity and is therefore unconstitutional. E.g. Marketing Information Masters, Inc. v. Board of Trustees of Cal. State University, 552 F. Supp. 2d 1088 (S.D. Cal. 2008).
So, we have a lower court ruling saying that 17 USC § 511 is unconstitutional to the extent it tries to subject states & state employees acting in official capacity to copyright infringement suits; but, the Supreme Court has actually not weighed in on states’ sovereign immunity yet. Scholars speculate that there is some possibility that the Supreme Court might consider the scope of 11th Amendment sovereign immunity
Bullet 1: See, e.g., NABP v. Board of Regents of U. Georgia, 633 F.3d 1297 (11th Cir. 2011); Ex Parte Young, 209 U.S. 123 (1908); Cambridge University Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012).
Actual damages
Also called compensatory damages, this consists of the dollar amount of any demonstrable loss the owner suffered as a result of the infringing activity. This loss may be from lost sales, lost licensing revenue, or any other provable financial loss directly attributable to the infringement.
Bullet 1: See, e.g., Richard Anderson Photography v. Brown, 852 F.2d 114 (4th Cir. 1988); Hirtle, Hudson, Kenyon (2009)
Bullet 2: 17 USC 504(c)(2); see also 50 Am. Jur. Proof of Facts 2d 263
