PaLA Annual Conference 2015 Engage Educate Enrich October 4-7, State College, PA Copy! Right?...

PaLA Annual Conference 2015Engage Educate Enrich

October 4-7, State College, PA

Copy!Right?

October 6, Tuesday2:15-3:30 p.m.

Calvin [email protected]

Assistant ProfessorSciences Librarian

Arcadia UniversitySuburban Philadelphia

450 S. Easton Rd.Glenside, PA 19048

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Copy! Right?

• Basics• Fair Use and the Four Factors: P, N, A, E• Code Switching• Assessing Fair Use• Public Domain• Almost Free of Copyrights

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Copy! Right?


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Copyright @ Arcadiahttp://search.arcadia.edu

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Copyright @ Arcadia

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Circular 1: Copyright Basics

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Definition• Copyright is the right of the author of a work

or a designee to make any copies of a work or control its usage.

• An author can be a writer, artist, composer, lyricist, playwright, choreographer, a sculptor, and architect.

• A copy is a reproduction or a modification.• A usage is a transformation, display, or

performance.

“Basics.” Copyright @ Arcadia. Arcadia University.

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What Makes a Work Copyrightable?

• It’s an original work of authorship.• It’s a literary, dramatic, musical, artistic work.• It’s in a fixed form.• It’s not mere information, an idea, or common

property.


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Protection

• A copyright symbol (©) is not required.• Protection is automatic as soon as the author

of the work establishes a fixed form. • Publication is not required.• Registration is not required.


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Copy! Right?


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The Four Factors of Fair Use

• Purpose and Character of the Use.• Nature of the Original Work.• Amount and Substantiality of the Portion

Used.• Effect on Use upon the Potential Market.


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P: PurposePurpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

“More Information on Fair Use.” United States Copyright Office.

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N: NatureNature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.


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A: AmountAmount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.


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E: EffectEffect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.


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Fine PrintIn addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.


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Copy! Right?


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Code Switching

• Like any discipline, copyright has its own terminology and definitions that need to be understood in the proper context.

• Without understanding the code to which to switch, misunderstandings are bound to happen.

• YouTube: Key & Peele – Phone Call

https://youtu.be/JzprLDmdRlc

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The Influence of Case Law

• What interprets the legislative (statutory) code? Case law.

• It’s impossible to keep track of all case law, but there are a bunch that have historically been particularly influential.

• Various websites track them. Here are 4:

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“17.18 Copyright—Affirmative Defense—Fair Use.” U.S. Courts for the Ninth Circuit. U.S. Courts for the Ninth Circuit, 2013. Web.

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“Summaries of Fair Use Cases.” Copyright and Fair Use. Stanford University Libraries, 2015. Web.

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“Copyright Timeline: A History of Copyright in the United States.” Association of Research Libraries. ARL. Web.

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“More Information on Fair Use.” copyright.gov. United States Copyright Office. Web.

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Copy! Right?


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Copyright @ Arcadia

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Assessing Fair Use

The four factors can be understood as weights on a balance scale, one side which favors fair use and the other which opposes…

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Assessing Fair Use

…An analysis of the factors places a small or large weight in one pan or the other depending upon the determination…

28“Fair Use.” Copyright @ Arcadia. Arcadia University. Web.

Assessing Fair Use

…Once you consider all four factors, how balanced the scale is will help determine if the use favors fair use or not.

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Assessing Fair Use

• And note that that not all factors get weighed equally.

• An empirical analysis of federal fair use court cases shows that if a use is deemed fair for factors 1 (P) and 4 (E), the ruling will be in favor of fair use. So factors 2 (N) and 3 (A) have less bearing on a ruling of fair use.

Beebe, Barton. “An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005.” University of Pennsylvania Law Review 156.3 (2008): 549-624. Web.

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“Thinking Through Fair Use.” Copyright Information and Resources. Regents of the University of Minnesota. Web.

Assessing Fair Use

There are tools you can use to help with your own analysis. Here’s one:

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Copy! Right?


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Public Domain

What is in the Public Domain?• Works published by the federal government• Works that have fallen out of copyright

protection• Works place directly into the public domain.If there is any doubt, the assumption is very good that the work is protected by copyright law.

“Public Domain.” Copyright @ Arcadia. Arcadia University. Web.

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Public Domain

What is Not in the Public Domain?• Nearly Anything on the Internet• Works that have no copyright symbol• Personal worksIf there is any doubt, the assumption is very good that the work is protected by copyright law.

“Public Domain.” Copyright @ Arcadia. Arcadia University. Web.

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No Longer Protected Works

• Copyright conditions and registration requirements have changed over the decades.

• Here’s a clever, simple tool that can help you determine what applied when and what applies now.

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Digital Copyright Slider

Brewer, Michael. “Copyright Advisory Network.” American Library Association Office for Information Technology Policy. Web.

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Copy! Right?


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Almost Free of Copyrights

• “Creative Commons (CC) provides producers of copyrighted works with a way to limit their exclusive copyrights and grant a range of other rights to other producers.”

• “Some rights reserved vs. All right reserved. The emphasis is on sharing rights to your work for other people’s creative purposes rather than reserving your rights, which limits subsequent use.”

“Work Almost Free of Copyrights.” Copyright @ Arcadia. Arcadia University. Web.

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• “Arguably, CC licenses have become the most prominent form of copyright protection in the U.S. after copyright law itself.”

• “The licenses range from ‘Change my work. Mention my name. Make money off your new work.’ to ‘Do whatever you want with my work. You don’t even have to mention my name.’”

“Work Almost Free of Copyrights.” Copyright @ Arcadia. Arcadia University. Web.

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• Creativecommons.org provides search tools to help find CC-licensed works.

• Look for a CC license wherever you might otherwise expect to find a ©.

• Use of a CC license requires no registration, just a license notification.

• You can apply a CC license to your own work, even a print work, provided you direct people to the CC licensing conditions.

40“About the Licenses.” creativecommons. Creative Commons. Web.


Creative Commons Licenses:

Attribution With ShareAlike

With NoDerivs With NonCommercial

With NonCommercial & ShareAlike

With NonCommercial & NoDerivs

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Creative Commons Licenses:

“About CC0 – No Rights Reserved.” creativecommons. Creative Commons. Web.“About the Public Domain Mark – No Known Copyright.” creativecommons.

Creative Commons. Web.

Totally Free of Copyrights

No Rights Reserved

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Sources“17.18 Copyright—Affirmative Defense—Fair Use.” U.S. Courts

for the Ninth Circuit. Web.“About CC0 – No Rights Reserved.” creativecommons. Creative

Commons. Web.“About the Public Domain Mark – No Known Copyright.”

creativecommons. Creative Commons. Web.“Basics.” Copyright @ Arcadia. Arcadia University. Web.Beebe, Barton. “An Empirical Study of U.S. Copyright Fair Use

Opinions, 1978-2005.” University of Pennsylvania Law Review 156.3 (2008): 549-624. Web.

Brewer, Michael. “Digital Copyright Slider.” Copyright Advisory Network. American Library Association Office for Information Technology Policy. Web.

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Sources“Circular 1: Copyright Basics.” United States Copyright Office.

Web.“Copyright Timeline: A History of Copyright in the United States.”

Association of Research Libraries. Web.“Fair Use.” Copyright @ Arcadia. Arcadia University. Web.“Fair Use Index.” copyright.gov. United States Copyright Office.

Web.“More Information on Fair Use.” copyright.gov. United States

Copyright Office. Web.

“Summaries of Fair Use Cases.” Copyright and Fair Use. Stanford University Libraries. Web.

“Thinking Through Fair Use.” Copyright Information and Resources. Regents of the University of Minnesota. Web.

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Sources“Work Almost Free of Copyrights.” Copyright @ Arcadia. Arcadia

University. Web.

Recommended Reading

Russell, Elizabeth T. Art Law Conversations. Madison, WI: Ruly Press, 2005. Print.

Copy!Right?

October 6, Tuesday2:15-3:30 p.m.

Calvin [email protected]

Assistant ProfessorSciences Librarian

Arcadia UniversitySuburban Philadelphia

450 S. Easton Rd.Glenside, PA 19048

PaLA Annual Conference 2015Engage Educate Enrich

October 4-7, State College, PA

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