What School Librarians Need to Know about

CopyrightAlaska Library Association

Juneau 2011 February 17, 2011

Carrie Russell, Director of the Program on Public Access to Information

ALA, Office for Information Technology Policy

Review of Copyright Law

• Purpose: “to advance the progress of Science and the Useful Arts” to benefit the public

• Congress creates the copyright law; it is not a “natural” right

• Creators/Authors allowed a limited monopoly by Congress as an incentive to create (only they can market their work to the public)

Review of Copyright Law• Exclusive rights make up the monopoly

– reproduction – distribution – derivative works – public performance – public display

• Exclusive rights are divisible and can be inherited, given or contracted away

• Original and creative works fixed in a tangible medium get automatic copyright protection

• Distinction between copyright and a copy (the physical object)

Exemptions to the Monopoly

• Statutory monopoly limited by:– user privileges like fair use, first sale,

interlibrary loan, etc. – public domain (current term: life plus

70 years)– limits on what can be protected (not

facts, lists, processes, federal government documents, etc.)

– idea v. expression dichotomyAnd more!

Socially beneficial uses of copyright

materials• Are central to the purpose of the law• Are often reflected in copyright exceptions

(ex. public performances in the classroom)• Places of learning, enrichment, and

scholarship have a special status under the law

• Non-profit, educational institutions are really special (there are exemptions that only apply to them)

Who Holds the Copyright?

• The author or creator, unless– one or more of the rights is transferred to

another through a license agreement– the work was commissioned as a work for hire– the work was created as part of one’s

employment– the holder forfeits their copyrights or creates

a license for use that is not as all encompassing at copyright law (Creative Commons)

Carrie Russell, 2011

You are free:•to copy, distribute, display, and perform the work•to make derivative works

Under the following conditions:

         

Attribution. You must give the original author credit.

         

Noncommercial. You may not use this work for commercial purposes.

         

Share Alike. If you alter, transform, or build upon this work, you may distribute the resulting work only under a license identical to this one.

For any reuse or distribution, you must make clear to others the license terms of this work. Any of these conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above.

If a teacher wishes to create an index for a book that doesn’t have an index, is it necessary to obtain permission from the author to create the index? Publish the index as a separate book? Include the index on a website?

What is an index? A derivative work? Is it protected by copyright?

Copyright Registration

• No longer required; automatic at point of fixation

• Notice no longer required• Why register?

– Offer helpful information to others who might want to use your work

– Timely registration ensures that you can collect statutory damages in an infringement case

Copyright is often confused with…

• Some other intellectual property law – Patents, trademark, trade secret

• Contract law (licensing)– When you ask and get permission to use a

copyrighted work from the copyright holder, you get a license to use the work

– We try to get user rights we would expect in the copyright law reflected in a license agreement

Fair use guidelines– Do not have the force and effect of law– But you might use these as your institutional

policy

Plagiarism – You can infringe and plagiarize at the same time,

or you can do one or the other separately

A high school teacher has purchased a TV show from iTunes and has it on her iPod.  The subject is clearly matter within the curriculum of her course.  We have the equipment to transmit it from her iPod to a TV.  Would an in-class showing of that video on a day as a part of her lesson be legitimate?

Let’s take a break!!!

Our public library has a Book Club Collection from which patrons can check out sets of books suitable for discussion. Along with our list of titles, we give a short summary of each book. Many of these summaries are cut and pasted from reviews we find on Amazon.com or BN.com. Since we are not citing entire reviews, do we need to cite our sources?

Copyright infringement or plagiarism?

Fair Use• Section 107, codified with the

Copyright Act of 1976• Determined on a case by case basis• Four factors are evaluated:

– Purpose of the use– Nature of the publication– Amount– Effect on the market for the work

More on Fair Use• Every librarian should understand, apply,

value fair use as a user right• Attempts to limit or restrict fair use can

occur in various ways; be wary of them • Fair use guidelines are not in the law• Your approach to fair use has a lot of do

with how your institution approaches copyright

• Use the fair use checklist (handout)• Limited remedy status for employees of

nonprofit educational institutions who have reason to believe use is fair §504(c)(2)

TRUE STORY FAIR USE or NOT?Our school district has adopted a Picture-Book-of-the-Month program where all our students K-12 have a different picture book read to them each month. The book is then incorporated into the curriculum in some way. At our middle school, it is difficult to show the book so that all students can see it as they are having it read to them, unlike at elementary school where teachers sit on a carpeted floor and let students gather around. Our teachers would like to have scanned copies of the book to show via an LCD projector, but we are concerned about copyright violations. We tried to find e-books for these books, but they were not available. Following the 10 percent guideline is also insufficient since not enough of the book is able to be copied for students to appreciate the entire book. Is it within fair-use guidelines to scan the book, put in in a PowerPoint presentation, copy the PP to a CD and check it out with the book for teachers to use in their classrooms?  

Other Copyright Limitations

• Section 108 – allows libraries and archives to make copies for library users, interlibrary loan, replacement and preservation

• Section 109 – allows owners of locally acquired copies the right to distribute that copy (library lending, used book stores, garage sales, etc.)

• Section 110 – allows teachers to display or perform works in the face-to-face classroom and in the digital or distance education classroom via digital networks

• Section 117 – owner of a software program can make a back-up copy

And more.

Small Group Exercise

Read the scenario. Select a spokesperson.Answer: is a right of copyright infringed?

What one?Is the use a fair use? Go through the four

factors - purpose, nature of publication, amount, effect on the market for the work

Report out.

Why is Digital Different?

• Perfect copies, easy distribution to thousands via digital networks

• Infringement is easier, tempting, common?• Cannot avoid making a copy• Fear of mass piracy: argument that greater

protection for copyright works necessary (DMCA, TEACH Act, No Electronic Theft Act, etc)

• End of “technology neutral” copyright law• Should user rights to information differ in

“the digital world?”• Guilty until proven innocent

Non-negotiated Licenses

• Shrink wrap

• Click wrap

• Browse wrap

• Labels “Do not sell to libraries”

• Warnings “Home use only”

• Over statements “All rights reserved”

The Digital Millennium Copyright Act of 1998

• WIPO treaty implementation, controversial• Attempts to deal with copyright and digital

works• Lots of litigation, some proposed legislation to

“fix” the DMCA in the last few sessions• Some believe there should be new, separate

legislation for the protection of digital materials or a total re-write of the copyright act

• Messy; we know most digital works are licensed

Copyright Protection and Management

Systems • Anti-circumvention of technological measures• Cannot break an access control measure without

authorization• Cannot use an circumvention tool to gain access• Cannot create a circumvention tool to gain access

or copy• Cannot market, offer to the public, traffic in anti-

circumvention tools• Civil and criminal penalties (educational institutions,

libraries exempt from criminal penalties, potential remission of statutory damages)

• Is not suppose to affect fair use or other exemptions

Teaching• Fair use or another specific exception may

apply• Not all teaching uses are fair uses• Section 110 allows for public display and

performance in the “face-to-face” classroom

• Section 110(2) was added with the Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 and allows for the use of digital works and transmission for teaching

Public Performances

• Showing a video or DVD in the classroom for curriculum purposes?– Yes, if copy is lawfully made or acquired– OK if video is rented from a video store– OK if you show it more than once– OK if you show it every year– OK if it is a feature film if curriculum-related– Not generally OK if you make copies or

distribute beyond the classroom

Public Performances

• Showing a video or DVD in the classroom for entertainment?– In general, you need a public

performance license– How? From distributor, during

purchase, from a licensing agency (i.e. Movie Licensing USA)

HOLLYWOOD TARGETS IRISH PRE-SCHOOLS FOR LICENSE FEESIrish playschools have been given an unexpected lesson on copyright law after a company representing Hollywood studios demanded that each child pay a fee of €3 plus 17.5% Vat per year to watch DVDs in their playgroup. The Motion Picture Licensing Company (MPLC), which collects royalties on behalf of companies such as Walt Disney, Universal and 20th Century Fox, wrote to 2,500 playschools last month warning that it is illegal to show copyrighted DVDs in public without the correct license. [Sunday Times]

Let’s take a break!!!

Technology Education and Copyright Harmonization

TEACH Act

• No consensus reached during DMCA negotiations

• Copyright office study favoring additional exemptions

• Four years later…

Key Provisions of TEACH

• Expands section 110: exemptions for certain performances and displays

• Expands section 112: ephemeral recordings

• Mediated instructional activities includes the digital classroom

• Accredited, non-profit educational institutions

Mediated Instructional Activities

• Integral to class experience• Controlled by or under the actual

supervision of the instructor• Analogous to the type of display

or performance that would take place in a live classroom

Works that can be used…

• Non-dramatic literary works (charts, maps, charts, images, some types of music, etc)

• Limited portions of dramatic literary works (plays, operas, feature films)– Opens up a market space for streaming

• Any work can be displayed in ways that would typically occur in the physical, live classroom

Works that cannot be used….

• Those works produced for the sole purpose of being used in distance education

• Required reading – textbooks, course packs, consumable workbooks

• Unlawfully made copies

Ok, what about teacher course sites…

• TEACH does not apply to works that you would not ordinarily “display” or “perform”

• Posting journal articles, chapters etc is a fair use determination

• Consider other ways teaching objective can be met instead of unnecessarily using technology and making copies

Transfers from analog to digital formats…

• When digital format is not available• Digital format cannot be used because

of technological protection mechanisms• Copy only the portion necessary• Cannot share digitalized copy with

other institutions• Cannot make digital copies of digital

copies

New Institutional Obligations

• Copyright policy and copyright educational materials

• Accurate • Promote lawful activity• Notice that materials may be

protected by copyright

Technological Requirements

• Limit access to registered students to the extent technologically feasible

• Reasonably prevent unauthorized copying and further distribution

• Retain materials only as long as necessary

• Do not interfere with technological measures employed by copyright holder

• No known technology is 100% effective, and it is not expected to be

• Do not overprotect if mechanisms threaten fundamental rights – intellectual freedom, privacy

My school library has a small collection of older cassette tapes, vinyl records, film strips, and reel to reel films.  Much of the equipment to play those items is old, too.  Instead of replacing the equipment, we would prefer to use our CD and DVD players, which means that these AV materials need to be in appropriate formats.  Is it legal for us to convert our older holdings to CD and DVD for classroom use or is that a violation of copyright?

Does TEACH apply? Does exceptions for reproductions apply (Section 108)? Does fair use apply?

Fair use still an essential exception

• TEACH does not work; consider fair use

• Fair use – no prior permission, no fee• Four factors – purpose, nature of the

publication, amount used, effect on the market

• Use it or lose it

I am the Instructional Technology Director at a school in Cary, NC.  Like many other schools, we are on the verge of moving to a 1 to 1 Tablet PC (laptop) environment.  One of the issues we face is the weight of backpacks for our kids.  In an effort to relieve some of the pressure, we will be issuing students textbooks and asking them to take them home and not transport them each day.  However, this means students will not have access to the text during school or away from home.We have discussed the possibility of "digitizing" the book into a PDF format and providing that copy to the students as well as the hardcopy.  By utilizing secured server access and usernames we would restrict access to the digital versions such that only those students who possess a hardcopy could access the digital version.  Our interpretation of the TEACH ACT seems to indicate that this is appropriate as long as the book is not already available in electronic format and as long as the security is maintained.Does this seem accurate?

So you want to give a presentation?

• What do you want to use and why? In-service or conference program? – Consider presentation objective– Could you do it a different way?– Alternatives to full scale copying

• Presentations at conferences not the equivalent of non-profit, educational use, but argument for fair use

• Compensation, honorarium impacts fourth factor

Art, Photos, Multimedia, etc

• Considered more copyright-worthy than most literary works; “thick” copyright

• Often associated with powerful interest groups (RIAA, MPAA) that have significant control over Congress

• More potential for legal battle, although still very rare

• If licensed works, contract terms determine use• Often difficult to clear rights because of numerous

rights holders and multiple IP protections• Often involve more than one exclusive right (copy

and display, performance and recording)

Our digital video class wants to make their own music videos to accompany popular songs. They will use the entire song in the video. Must the students ask for copyright permission, and if so, who do we ask? What if they want to enter the video into a student contest or festival?

Music Copyright• Very complex – various rights holders claim

an interest in the work (composer, recording company, musician, etc)

• Various rights holders claim an interest in the same exclusive right - so if you need permission, you often have to go to more than one rights holder

• A song may be in the public domain, but sound recording probably is not in the public domain

• Nature of the work – highly creative• Powerful lobby – RIAA

Music Copyright• Using music as part of a classroom assignment

is OK• Performances in the classroom are OK• Live performances without commercial

advantage are OK– No payment to performers– Admission can be charged but proceeds must pay

for the cost of the performance and/or put back into the coffers for such activity

– Copyright holder has opportunity to prevent the performance

Music Permission Process –

Who do you contact?• Sheet music

– composer holds initial copyright, transfers rights to music publisher

– represented by National Music Publishers Association

• Recording to CD, DVD etc – if rights holder has previously released music… – anyone can play the song and record it by paying

a “mechanical license” (compulsory licensing system brought about by player piano technology) for each “phonorecord” produced with a license

– Enables “covers”– Music publishers use the Harry Fox Agency to

handle mechanical licenses

More on Music– Who Do You Call?

Public performance for profit (even if no additional admission fee is charged) --background music, radio, live musical performances

Need a contract from ASCAP, BMI, SESAC, money goes to music publishers

Sound recording right for LPs, CDs, MP3s?Proposed by record labels Would protect original performance of music “fixed”Opposition to splitting the “pot”

Digital Transmission of Sound Recordings §106

(6)Money goes to the recording labels (RIAA)Digital Phonorecord Delivery (DPD) (think

web sites for downloading)Get both mechanical license and DPD royalty for distribution, and potentially an additional license if there is a public performance

Don’t ask me about digital performances

Is it a violation of copyright law for the school to make CD or video recordings of choir or band concerts and sell the CD's or videos to families or other interested parties? I know we can't videotape plays and musicals that the drama students perform, so that made me wonder about other types of performances.

Your Liability• Unlikely that a faculty member or librarian

would be taken to court, but still could happen

• Section 504(c)(2) limits statutory damages for alleged infringers who work at a non-profit, educational institutions

• 11th Amendment – Constitutional doctrine that state or state agencies cannot be sued for dollar damages by the federal government

• Risky proposition to go to court; many disputes settled out of court

A way to think through your copyright

situation…• Is your desired use of a protected work

infringing?• What exclusive rights are exercised? • Is there a specific exception that allows this

use?• Or, is this a fair use?• If not, can your teaching goal be met in

another way that is not infringing?• If not, only then, seek permission.

Thank You!Contact me:

crussell@alawash.org800.941.8478

www.librarycopyright.net