08.09.16 copyright compliance training for bcourses
TRANSCRIPT
Copyright Compliance Training for bCourses
Rachael G. SambergScholarly Communication OfficerAugust 2016
Best Practices, Not Legal Advice
Information presented here is intended for informational purposes only, and should not be construed as legal advice.
Topics Today Copyright Basics
What is copyright What is protected / not protected Using copyrighted materials in course websites
When permission must be sought Exceptions to needing permission
Copyright Compliance Best Practices
Easy workflow for using / uploading potentially copyrighted materials
Getting permission when needed Remedies
The ConstitutionU.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.”• So, goal is to encourage
progress/knowledge by rewarding authors for writing and making things
• What are the rewards?
Copyright Confers Exclusive Rights for Limited Period of Time Reproduction Preparation of derivative
works (such as adaptations) Distribution Public performance Public display Public performance of
sound recordings via digital audio transmission
Duration of Copyright
Length of protection varies, based on: Type of work When created Who was author When first published etc.
In general, expect that it is at least author’s life + 70 years from date of author’s death
This means that within that “protected” time period,
the author’s permission would be needed to reproduce, display, perform, etc. the work
What Can Be Protected
The Copyright Act (in 17 USC § 102) offers these examples: Literary works Musical works (+ accompanying
words) Dramatic works (+ accompanying
music) Choreographic works & pantomimes Pictorial, graphic, & sculptural works Motion pictures and other AV works Sound recordings Architectural works
Copyright & the Underlying Work
Rights in copyright are separate from ownership of the underlying physical work. For instance, if you buy a
book, you can’t make a bunch of copies of the book for everyone in your class
Instead, copyright is retained by one or more of the author, publisher, etc.
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
Statutory Exemptions A statutory exemption allows
individuals to undertake one of the exclusive rights of copyright: Without obtaining the
permission of the copyright owner;
and without the payment of any license fee
Statutory Exemption: Fair Use (17 USC § 107)
1. Purpose and character of the use (i.e. use for commercial purposes less likely to be fair than use for nonprofit educational purposes; question of whether use is “transformative” has recently dominated this factor’s analysis)
2. Nature of the copyrighted work (i.e. more likely to be fair if you’re using factual/scholarly work rather than highly creative work)
3. Amount and substantiality (i.e. size & importance of portion used in relation to whole)
4. Effect of use upon potential market
(i.e. less likely to be fair if use serves as substitute for purchasing original)
Is use fair? All four factors must be
evaluated by instructor
There is no statutory 10% rule
Always fair to link, rather than post a copy
Other Statutory Exemptions: TEACH ACT Section 110 of the Copyright Act allows display and
performance of copyrighted works during the course of face-to-face teaching in a classroom in nonprofit educational institution Does not permit reproduction of copies for in-class
use; just display & performance (i.e. showing copy on screen)
Section 110(2) permits same activities asynchronously (e.g. on course-restricted sites); however, limited to: 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 amount comparable to what would be used during 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)
In Summary Copyright gives copyright owners
exclusive right to undertake six types of rights for a designated period of time.
Permission must be sought to undertake any of those six rights if copyright exists and has not expired.
However, no need to seek permission if intended use falls under statutory exemptions (e.g. Fair Use or TEACH Act).
Nor is permission needed if you link to the content, rather than copy/reproduce/post the actual content, itself.
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
If Instructor’s answer to any question is “yes”: If Instructor’s answer to all questions is “no,” two options:
Material can be posted directlyto bCourse site
(though link always possible/preferable
)
Post link to content,
rather than content,
itselfIf link can’t be
found, or Instructor prefers
posting copies, request copyright
holder’s permission
OR
Copyright Workflow for Posting to bCoursesInstructor 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)?
Is the workflow answer “yes”?Library’s guide can help instructors answer the workflow questions
http://guides.lib.berkeley.edu/instructor-copyright-bcourses
Links to Articles, Books, Video, etc.
Cody’s libguide: http://guides.lib.berkeley.edu/readings-in-bcourses
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. E.g. Copyright Clearance Center
Possible Consequences (“Remedies”) Grant of an injunction Impounding and/or destruction of infringing articles Award of damages and profits Award of costs and attorney’s fees Criminal liability
Limitations on Remedies Against State Institutions
State/tribal gov’ts, and component units such as state university, immune from suit for monetary damages (sovereign immunity). 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).
However, these entities can potentially be sued for injunctive relief to prevent future infringement. 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).
Limitations on Remedies: State Institution Employees Acting in Official Capacity An action for injunctive relief may be brought against state
employees acting in their official capacity. 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).
There can also be a discretionary award of attorneys’ fees to the prevailing party.
No award of damages & profits, including no statutory damages
Limitations on Remedies: State Employees Acting in Personal Capacity on the Job
State institution employees may also be sued in their 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. See, e.g., Richard Anderson Photography v. Brown, 852 F.2d 114 (4th Cir. 1988); Hirtle, Hudson,
Kenyon (2009)
However, no statutory damages can be awarded if the infringer is an employee of a nonprofit educational institution, library, or archives and had reasonable grounds for believing (and hence believed) that his/her use was a fair use. So, the monetary remedies would be limited to actual damages and the employee’s profits. 17 USC 504(c)(2); see also 50 Am. Jur. Proof of Facts 2d 263
All photos © 2015-2016 by Rachael G. SambergPresentation issued under Attribution-ShareAlike 4.0 Int’l License (CC BY-SA 4.0)
Questions?Library can assist with fair use and other statutory exemption questions: http://guides.lib.berkeley.edu/instructor-copyright-bcourses; [email protected]
Library can help you find materials and links: http://guides.lib.berkeley.edu/readings-in-bcourses; [email protected]