Copyright Considerations

 

Copyright Law, Intellectual Property, and What Is Free on the Web

EDC 668 - Dr. Michael Johnson

Team Members: Brenda Lewis, Derrel Fincher, Scott Wilkinson, Barb Garnett

Assignment: You are a technology director for your organization. What are the factors you must consider in relation to copyright to protect the individual and the organization?

Fair Use (Scott Wilkinson)

Assessing Ownership and Obtaining Permissions (Brenda Lewis)

Obtaining Copyrights and Infringement Penalties (Barb Garnett)

Distance Learning and Electronic Media (Derrel Fincher)

Resources

Fair Use

Organization/Individual Issues

As defined by US Code, Title 17, Section 107:

...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors

Individual Organization
Generally, Fair Use guidelines are the same for individuals as they are for organizations. However, individuals need to be aware that "classroom use" does not alone guarantee fair use. Several sites have good fair use rules, but Stanford University Libraries Copyright and Fair Use Information addresses the main issues. Organizations should maintain a copyright policy that addresses the following:
  • Liability
  • Infringement
  • License agreements
  • Fair Use
  • Use of copyrighted materials
    • Written
    • Video/Film/Sound Recordings
    • Computer software
    • Musical scores
  • Obtaining permissions
  • Royalties

The Fair Use test has several questions that can be used for determining whether a use is fair use.

Obtaining Permissions: The following organizations maintain comprehensive lists of owners of copyrighted material.

Assessing Ownership and Obtaining Permissions

Individual Organization
Ownership
  • Author is owner. If more than one person contributes to the creation of a work, the work is owned by them jointly.
  • Joint authors should agree (in writing) that they mutually intend to share ownership of the work. A contract is highly advisable.
  • Ownership of copyright is dependent upon purpose of the work. Education and not-for-profit uses differ from for-profit use.
  • Provides exclusive rights to make copies, distribute, display, and perform works publicly.
  • For works created during or after 1978, copyright ownership ends at the expiration of 70 years after the author’s death.
  • For works created before 1978, but not published, copyright expires 70 years past the life of the author or in the year 2003, whichever is longer.

Work Made for Hire

  • Ownership of illustrations or other supplemental contributions should be specifically documented.

Transfer of Ownership

  • Owner/author is free to assign copyright to anyone.
  • Copyright ownership may be bequeathed by will or transferred as personal property.
  • Ownership can be sold or transferred via copyright assignment (a contract transferring copyright ownership from the author/artist to someone else.
Ownership
  • Copyright of each separate section of a work is distinctive from copyright of the entire collection.
  • Simply paying for a work does not automatically entitle an organization to own the work.
  • Employer owns the work when it is created by an employee within the scope of employment.
  • Employer owns the work when such is specified pursuant to contract with assignment.
  • For works published before 1978, copyright is in effect 95 years after publication. If published before 1964, 28 years after publication + 67 more years if renewed.

Work Made for Hire

  • Considered so if it fits into one of the following categories:
    • contribution to a collective work
    • part of an audiovisual work
    • a translation
    • a supplemental work
    • a compilation
    • an instructional text
    • a test
    • answer material for a test, or
    • an atlas
  • A “Teacher Exception” may apply to the Work For Hire rule.

Transfer of Ownership

  • Ownership of all aspects of the copyrighted work must be considered before publishing, using, or accepting transfer of a copyrighted work.
  • Many publishers require assignment of copyright is as a condition of publication.
Permissions
  • Should be obtained for use of works that do not fall into the Fair Use category in order to avoid infringement penalties.

Contacting the Owner

  • You can contact copyright owners directly, if you know who they are. Writing a letter, calling, or emailing are appropriate ways to initiate contact.

Confirming Authority to Grant Permission

  • Be sure that the person giving you permission is authorized to do so.

Written Permission

  • Your permission should be in writing and should clearly describe the scope of permission. Precisely describe how you intend to use the copyrighted work. Vaguely worded permissions may not cover your intended use.
  • If you receive oral permission, carefully document the conversation. Then send a confirming letter, asking the owner to initial it and return it to you if it accurately reflects your agreement.

Unidentifiable/ Unresponsive Owner

  • Unsuccessful attempts to identify and contact a copyright owner do not indemnify you from liability for copyright infringement. It is advisable to not use works of authors whom you unable to obtain permission to do so.
Permissions
  • Permission must be obtained before copyrighted materials are used to (1) Make a copy, (2) Create a derivative work, (3) Distribute a work, (4) Publicly perform a work, or (5) Publicly display a work.
  • Libraries, educational institutions, and government agencies are entitled to Special Rights that exempt them from certain permissions requirements.
  • Establish Connections to copyright collectives.

Contacting the Owner

  • Copyright owners may be located through various Collective Rights Organizations.

Confirming Authority to Grant Permission

  • No special factors

Written Permission

  • Organizations should develop a policy regarding copyright procedures to protect against infringement liability and monetary damages. Employees should be educated regarding these policies.

Unidentifiable/ Unresponsive Owner

  • Considerations favoring use of materials for which permissions have not been obtained must be weighed against the consequences that may be suffered as a result of doing so.

Obtaining Copyrights and Infringement Penalties

Individual Organization

Obtaining Copyrights:

  • Copyright registration is NOT required for copyright protection, but it does offer advantages to those who go through the registration process. Advantages include recovery of statutory damages (up to $100,000) and attorney's fees if the registration takes place within three months of the creation of the work and prior to infringement of the work. Registration also provides documented evidence of copyright validity if infringement takes place and a court case follows.
  • Registration can take place at any time during the life of the copyright.
  • Registration steps: (1) application form (2) nonrefundable filing fee - check here for current fee (3) the work being copyrighted (which will not be returned) Requirements for the work submitted can be found here.
  • Copyright applications may be submitted by the author, a person or organization who has current ownership rights, people who own rights to the work that have been separated from rights to the entire work, and authorized agents of any of the above and they do not have to prepared by or filed by a lawyer.
  • Copyright forms can be found on the Internet here.

Obtaining Copyrights:

  • While the process for obtaining copyrights for an organization seems to be basically the same as for an individual, the following points should be understood:
  1. the copyright for a work belongs to the author of the work (or his designee); however, if an employee creates a work as part of his employment, the author is considered to be the author IF "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." (Who Can Claim Copyright)
  2. co-authors of a work are also co-owners of the copyright
  3. publishers of collected works may obtain copyright on the entire publication; however, individual works contained within it remain copyrighted to individual authors.
  • Different institutions handle copyright issues with their employees in different ways, but employees should be asked to sign a document concerning ownership rights upon employment if authorship / ownership is a consideration for the position.
Infringement Penalties:  Up to five years imprisonment and fines of up to $250,000 or both for first time violators of copyright laws; those previously convicted of infringement may receive up to ten years imprisonment, a $250,000 fine, or both. (Criminal Resource Manual 01852) Infringement Penalties: While no distinction was found between penalties for organizations and individuals, the government must prove "(1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain." (Criminal Resource Manual 1847)

Distance Learning and Electronic Media

Five rights are granted by copyright

  1. the right to reproduce the copyrighted work;
  2. the right to prepare derivative works based upon the work;
  3. the right to distribute copies of the work to the public;
  4. the right to display the copyrighted work publicly;
  5. the right to perform the copyrighted work publicly.

Although all of these rights may be affected by distance learning, the first four are most likely to be an issue for distance learning. Factors in electronic media are the same as for distance education, with the addition of factors affecting the fifth (public performance) aspect  Electronic media also covers software, which requires a small section on its on.

Individual

Organization

Distance Learning:
  • Read your contract or course enrollment form before signing to determine if you are waiving any rights to your work.
  • If using other material, make sure it follows fair use guidelines otherwise the organization may not be permitted to defend the individual against lawsuits.
  • Be aware whether material is being posted in a public area or protected area as fair use determination is also dependent on how much access the public has.
  • Determine who owns the copyright to material you produce for the course, whether you are the instructor or a student.
  • Be aware of institution policies on using material created by others in the course and assure that you have received permission to use those materials.
  • For maximum protection of important works, file for copyright and pay the fee.
Distance Learning:
  • Establish protected and limited access areas that may be used for "fair use" materials.
  • Establish ethical guidelines for students, instructors, and employees to follow in terms of fair use and copyright infringement.
  • Establish clear explanations regarding copyright ownership of materials used in distance learning, including content added in newsgroups and chat rooms. 
  • For international distance learning efforts, be aware that laws differ from country to country. This may necessitate changing course content or access if students are primarily in a country different from the one the course was designed for.

Electronic Media—General

In addition to those above, understand the organization's policies on public performance and copyright.

Electronic Media—General

In addition to those above, understand the concept of “public performance” and have guidelines that help students, instructors, and employees determine if their use of a particular piece is public performance or permitted under fair use guidelines.

Electronic Media–software:
  • Assure that all software not provided by the company is properly licensed for its intended use.
  • Be aware of the provisions of shareware and freeware, which may require users in a corporation or organization to pay a fee for the use of the software, versus individual or educational users.
Electronic Media–software:
  • Assure that all software used is properly licensed.
  • Set policies about what software employees may install on their computers.
  • Set policies about whether software may be copied for home use. (Some software licenses permit employees to install the software at home under certain conditions.)
  • Consider purchasing license management software that only permits the number of software programs equivalent to the number of valid licenses to be active at any one time. However, the organization does have to plan for how they will handle times when demand is higher than the number of permitted licenses.

 

Resources

Copyright Infringement - Department of Justice

Copyright Law in the Electronic Environment

Copyright Website: What Can You Register?

Copyright Website: Why Register?

Fair Use in the Electronic Age

Getting Permission

U.S. Copyright Office

When Works Pass into the Public Domain

Who Owns What

Getting Permission

Copyright Clearance Center

The Crash Course in Copyright

Copyright in Cyberspace

Title 17 of the United States Code
Title 17 of the United States Code is the law on copyright and the truly intrepid may venture into Title 17 at Cornell's Legal Information Institute.
SDSU's copy of "Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes"
IN 1979, a congressional negotiating committee, consisting of representatives of education organizations, copyright proprietors, and creative guilds and unions, negotiated these guidelines.
Fair Use Guidelines for Educational Multimedia (Consortium of College and University Media Centers [CCUMC])
This page is a nice summary of fair use guidelines that many organizations have accepted. Note that "fair use" is codified in law, but the specifics are open to interpretation.
Law About....Copyright
Cornell's links to copyright are some of the most comprehensive available.
Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)
The Berne Convention is one of the international conventions that signatory countries follow when determining copyright protection. The convention is periodically revised.
Universal Copyright Convention
The text of the convention is informative but long.
Copyright Issues in Japan
This paper is a good starting point for seeing the difference between U.S. copyright law and that of another country.
Stanford University Libraries Copyright and Fair Use Information
A quite thorough reference on fair use.

 

 

Revision B

Last maintained 08/23/2003

   

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