with Heather Getsay,a Buffalo, NY

1. Heather Love, Slippery Rock University
Stephen Marvin, West Chester University

2.  Copyright in general
 Copyright on the Internet
 Copyright challenges

3. REVIEW:
Copyright is invisible. Don’t give it a second thought. You
found what you want, use it! Everybody else does.
Everything is there, no hesitation required. Never worried
about laws. Laws didn’t really issue a clear danger.
Copyright laws are unpredictable, same with consequences.
Providers of content placed copyright warnings but also
promote various methods via icons for blogging, email, print,
and a host of other methods. The public does NOT want to
disrespect others rights. Acting from the formats presented,
the web designs seems to welcome use by enabling,
comfortably, not only access but also reuse.

4.  Educator issues
 Photocopies, websites, distance learning
 Research interests
 Publishing, repositories, storage
 Library issues
 ILL, Reserves, Access and licensing
 Are you the author? (faculty are!)
 Unpublished / published
 Orphan works

5.  Rights to the Author
 Reproduce,
 Distribute,
 Display,
 Create derivative works ,
 Moral rights,
 Transmission,
 and DMCA provisions.
 Is your work considered ‘Made for Hire’
 Employee as scope of employment (Reference Manual)
 Independent contractor
 Signed in writing?

6. Author - reproduce, distribute, perform, display,
and make derivative works
= exclusive to the author.
Owner can sell, rent, lend, and display.
You want to switch from Eres to D2L and the
company asks, ‘Do you own the content on Eres?’
You? Own?
Computer software = literary work

7. 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.
- Copyright Clause, Article I, Section 8, Clause 8

8. Creative Works
versus
Author’s Rights
What was the intent of the Copyright Clause?

9. THE COPYRIGHT ACT OF 1909
Rights conferred by copyright were
“not primarily for the benefit of the author, but
primarily for the benefit of the public.”
Universal Film Mfg. Co. v. Copperman,
212 F. 301 (1914)
Publication without copyright notice
“amounted to a dedication to the public
sufficient to defeat all subsequent efforts at
copyright protection.

10.  Promote the Progress
 Limited times
 Dedication to the public
Copyright law revisions and judicial decisions
are interpretations that expand the scope of
original intent. The law gets murkier as we
move ahead…

11.  World Intellectual Property Organization – WIPO
 In 2008, libraries given special consideration for:
 Preservation,
 Interlibrary loan,
 Research and education, and
 Provisions for people with disabilities.
 Berne Convention
 Applies many copyright standard rules for most nations
 Removes copyright notice requirements to all publicly
distributed copies of works
 Digital Millennium Copyright Act
 July 28, 2010 – Exemptions to Circumvention of
Access- Control Technologies

12. State created/ supported information service
Access PA - metadata
Label in Dublin Core Searchable? Content Description
CONTENTdm Mapping Displayed? and Instructions
Rights Rights No/ Yes Digital images copyright State
Library of Pennsylvania. All rights reserved. May be used for educational purposes as
long as a credit statement is included. For all other uses, contact the State Library of
Pennsylvania, Digital Rights Office, 333 Market Street, Harrisburg, PA 17126-1745.
State and local governments – set policies to
allow, require, restrict or prohibit claim of
copyright on some or all works.
Do you work for a state agency?
Does your Union protect your IP rights?
Are there policies related to copyright?

13. CONFU Guidelines
Profit and nonprofit publishers, the software industry,
government agencies, scholars, societies, authors,
artists, photographers, musicians, the movie industry,
television, licensing collectives, libraries, museums,
universities and colleges spent untold amounts of
money and 2 1/2 years of their time and their energy to
find agreement on the scope of fair use in various
electronic contexts to no avail resulting only in the
existing status of current practice.
Result = CONFUsion

14. - Laws are methods employed by governments to
secure intent and allow individuals to employ
their own ways through creation of new norms.
- Norms contribute to laws as they pose a means
of accepted, generally reasonable, standard or
even new standard.
- Norms lack determinant precision of adoption
or rationale.
- Norms may vary depending upon the conditions
of their presentation.

15. Digital copyright community:
imposed more restrictions,
made aggressive demands,
used court filings, and
pushed legislative lobbying.
Legislation and regulation is too slow to enact and
respond to the developments in technology.
Conflicts arose between interests of individuals,
governments, and corporations causing
inconsistency with laws in a continual tug-of-war.

16. Publishers position themselves against the new popularity of access norms.
The publishing industry threw their weight against fair use by directly
attacking universities who
provided streaming video for course work,
provided access to full text journal articles via ILL or EReserves
provided access to DVD’s from transfer of VHS
Publishers utilized legal safeguards but made owners appear to be ogres
lobbyist tactics to the government,
new statutes or cases
Through technology,
new control measures
invisible footprints or digital watermarks
better understood technological methods as safeguards
acceptable methods of protection using technological methods
but, …. WOULDN’T YOU DO THE SAME?

17.  Fair Use - PANE
 Purpose
 Amount
 Nature
 Effect
 Court use

18.  Purpose – education vs corporate
 Amount – ‘reasonable’
 Nature – fiction, unpublished, nonfiction
 Effect – impact on profitability
 Remember – you only need permission if it is NOT
Fair Use

19.  Fair Use - PANE  Court use
 Creativity
 Originality
 Fixation (a fixed
tangible medium)
 AND Effect on
Market

20. Original work
Fixed in a tangible medium
Market impact

21.  Classical fair use
 A "professional" artist's unauthorized, yet productive, use
of copyrighted content.
 Includes historical accounts and "appropriation art," such
as documentary films or biographies, in addition to book
reviews and film criticism.
 Appropriation art is valuable to help perceive, in a
different way, an already familiar image.
 Personal fair use - home recording of television shows.
 Personal productive use combines the categories of
classical and personal uses into a new category of home
users exercise creative and editorial discretion in classical
fair use areas, such as a blog entry with an image of the
writer's favorite movie. (Madison, 2005)

22. Criticism
Parody
Sarcasm
Moral Rights
distortion, mutilation, or
other modification of the
work which would be
prejudicial to author’s
reputation.

23.  Fair Use is a social practice – parody, sarcasm, criticism,
scholarship, teaching, journalism, reviews
 Fair Use relies upon social patterns and practices – news,
comments, research
 Court decisions should be based upon what was
produced not what was done in order to produce.
 Infinite ways to change works fixed in a tangible
medium – enlarge, reduce, proportions, embellishments,
reversal, omit features, add features, colors, etc.

24. Transformative use is an extra exception employed
by social software applications. Disputes try to
balance the productive nature with the economic
impact.
Transformative use advances a goal of copyright
toward the promotion of arts and sciences. Social
software has met legal challenges and is being
recognized for the ability to produce innovative
content (Marques, 2007).

25. Shepard Fairey, Los-Angeles street artist,
created an inspirational poster.
The image serves as a good example of
transformative use.
Fairey redesigned, colorized, deleted the
background, and added other components.
The two images are on exhibit hanging side
by side in a gallery in New York.

27. SUSAN MEISELAS: 7/16/1979 >>>
Garnett, Joy and Meiselas, Susan (2007) ON THE
RIGHTS OF MOLOTOVMAN: Appropriation and
the art of context HARPER'S MAGAZINE, p.56.
Joy Garnett, 2003

28.  Update format
 Preservation – master copy, storage, use
 Classroom use
 Transcopyright
 Transfer from old medium into new
 Translation
 Transformative – serves a broader purpose, ADA
compliance

29. Stephanie Lenz vs Prince in Let’s Go Crazy http://www.youtube.com/watch?
v=N1KfJHFWlhQ
- Universal sent YouTube a takedown notice.
- YouTube removed Lenz’s video because of a copyright violation.
- YouTube sent Lenz an email, advised her of the DMCA’s counter-notification
procedures, warned her any repeated incidents could lead to the deletion of
her account and all of her videos.
- Lenz sent YouTube a DMCA counter-notification.
- Lenz asserted her video constituted fair use of “Let’s Go Crazy” and did not
infringe copyright.
- YouTube re-posted the video.
- Fair use is a lawful use of a copyright.
DMCA

32. Case Studies
- People ‘authorized’ = prove it!
- Books and Google (October 28, 2009)
- Email/email management systems – ILL?
- ILL - born digital?
- Images (permanent or temporary)
- Instructional Media VHS > DVD >YouTube
- Reserves
- Government Documents

33. Cambridge University Press et al. v. Patton et al.
 Cambridge UP, Oxford UP, and SAGE filed suit against
administrators (not faculty) at Georgia State University in
spring 2008
 Claimed GSU allowed unauthorized digital copying and access
to copyrighted works on ERes and uLearn
 Faulted GSU for assuming a “blanket presumption of ‘fair use’”
in higher education. GSU cited fair use.
 Faculty said they would not use the works if they had to pay
permissions fees – they would find something else.
 Interesting note: legal brief for GSU admin blames many
groups, including library employees!

34. GOOGLE LIBRARY PROJECT: (fyi: Google
estimated from the MARC 260 field there were
120 million titles with 165 manifestations.
(47% were U.S. books)
 December 2004 , Google began offering access
to full text books from research libraries.
 Millions of books were scanned without
permission of copyright owners
Fair use or copyright violation?

35. Author’s Guild v. Google, Inc.
 Class action lawsuit filed by copyright owners
 Settlement Agreement was reached
 Class action requires court approval of a settlement
 Years of debate over copyright issues
 Amended Settlement Agreement still under consideration by U.S.
District Court
The Opt-Out Option – Altered current copyright in shifting
burden from user to the copyright holder.
Fair Use – Purpose of Google’s effort was not to profit from the
sale of books. Links to borrowing or buying options when only
a snippet was available. Nature of use was transformative.

36. Library Digitization and the Permissions Process
 Libraries or Archives that are unclear on whether fair use applies might
seek permission unnecessarily
 Permissions process can be tedious and time-consuming, especially if
there are multiple copyright holders
 Libraries attempting to move forward with digital initiatives are halted by
“the cost of copyright”
 Cornell University Library
 $50,000 in labor costs for copyright holders online
 Carnegie Mellon Libraries, 2005
 $78 per book to identify copyright holders for rare book
digitization project
 Wayne State University, 1999
 $26,000 to digitize 1000 articles for electronic reserve

37. TECHNOLOGY, EDUCATION AND COPYRIGHT HARMONIZATION
 Used by accredited, nonprofit educational institutions
 Applies to distance education and classroom teaching with
an online component
 Allows transmission of copyrighted materials only to
students enrolled in particular courses, not the institution
at large
 Does not allow use of commercial works sold or licensed for
distance education
 MANY requirements to be in compliance, but compliance is
not required (make sense?) Fair use can still prevail.

38.  UCLA began converting instructional materials to
streaming format in 2005
 University cited the TEACH ACT in allowing use of
copyrighted works for online education
 Suspended the service in Fall 2009 after pressure
from a media trade group
 March 2010 – UCLA resumed streaming media
service

39. HARVARD UNIVERSITY
 Harvard faculty voted unanimously in February
2008 to publish scholarly articles free online
 Office of Scholarly Communications formed as
repository
 Faculty members retain copyright
 Formed Open Access Compact with Cornell,
Dartmouth, MIT, and the University of
California

40.  Shrinking budgets, increasing subscription
costs and licensing fees
 Alternative to costly resources budgets cannot
support
 Perhaps more involvement with faculty as they
have questions about open access publishing
 “For Advice on Publishing in the Digital
World, Scholars Turned to Campus
Libraries”
 Contact points for copyright questions on
campus.

41.  PA State System initiatives for Copyright
Coordinators for each campus.
 Involved in drafting university copyright policies.
 Managing scholarly communications repositories
as done at Brown and Duke Universities.
 Beyond CCC, aware of options like Creative
Commons.
 Unique knowledge of licensing, publishing,
subscriptions, resources, and copyright.
 Libraries of the future should be copyright experts
on university campuses.
 To promote the Progress of Science and useful Arts

43. Mashups (combine tools for other functions)
http://www.programmableweb.com/mashups

44. File Extensions to the tune of Ave Maria
composed in about 1825 by Franz Schubert (1797-1828)
File Extensions – there are hundreds….http://filext.com/alphalist.php?extstart=%5EA
Ave - ArcView Avenue Script (ESRI)
Ma - Mathematica ASCII File (Wolfram Research, Inc.)
Ria – Alpharel Group IV Raster Graphics
Gra - Notes 5 Language Dictionary File (IBM);
STN Express Transcript Graphics File;
SigmaPlot Data File; Graph Chart(Microsoft);
Flight Simulator File (Microsoft);
OpenGL Object
Ti – Homeworld Tactical Icon (Sierra Entertainment);
Timber Compiler File (Timber Development Team);
Turing (Holt Software Associates);
NRC Inspection Manual Temporary Instruction
Ple - Messenger Plus! Encrypted Logfile (Patchou);
Phone2PC Sound File (Konexx)
Na – NoAdware Data File (NoAdware.net)

45. Google Books – Classes of Libraries – Participants,
Subscribers (for every 12,000 / one terminal)
Online Role-Playing Games - MMorpg - Massively
Multiplayer Online Role-Playing Games
Digital Watermarks to identify your digital images.
MashUps – combinations of creative combinations of
new and existing software programs.
Mobile Devices – MoSoSo, most students buy unlimited
text messaging – they tweet - apply to library
connections! Ryerson U = 83% use Text messaging
(only 13% use Facebook)
Open Source Software = Open Web 2.0/3D

46. Evaluate Fair Use based on the production not
what was used to produce it.
Guidelines interpreted based on maximum
allowances provided by statutes rather than the
minimum.
Monitor response to Open Source
Study the cases challenging Fair Use
Challenge the frontier think Mobile and Global,
and Respect your social norms!

47.  Are virtual worlds legal jurisdictions?
 Are you trespassing?
 (unauthorized use?)
 Cyberspace is bound by the processes
by which it is created and experienced.

48.  17 US Code Sections 107 – 118 Copyright Act (Fair Use)
 Band, Jonathan The Long and Winding Road to the Google Books Settlement, 8 J. Marshall Rev. Intell. Prop. L. 227 (2009).
 Digital Millennium Copyright Act - 17 U.S.C. § 512 - Limitations on Liability Relating to Material Online
 Gard, Elizabeth Townsend Conversations with Renowned Professors on the Future of Copyright, 12 Tul. J. Tech. & Intell. Prop. 35 (2009).
 Hafner, Katie Publishers Sue Georgia State on Digital Reading Matter, The New York Times, April 16, 2008, available at
http://www.nytimes.com/2008/04/16/technology/16school.html?_r=1.
 Hormann, Kevin P. The Death of the DMCA?: How Viacom v. YouTube May Define the Future of Digital Content, 46 Hous. L. Rev. 1345 (2009).
 Howard, Jennifer A New Push to Unlock University-Based Research, The Chronicle of Higher Education, March 2009, at A10.
 Howard, Jennifer For Advice on Publishing in the Digital World, Scholars Turn to Campus Libraries, The Chronicle of Higher Education, November
2008, at A8.
 Howard, Jennifer In Court, a University and Publishers Spar Over ‘Fair Use’of Course Materials, The Chronicle of Higher Education, March 14, 2010,
available at http://chronicle.com/article/In-Court-a-University/64616/
 Kleinman, Molly The Beauty of “Some Rights Reserved”: Introducing Creative Commons to Librarians, Faculty, and Students, C&RL News, November
2008, at 594.
 Laster, Jill UCLA Will Resume Streaming Video After Legal Dispute, The Chronicle of Higher Education, March 3, 2010, available at
http://chronicle.com/blogPost/UCLA-Will-Resume-Streaming/21594/
 Madison, Michael, (2005) Rewriting Fair Use and the Future of Copyright Reform, 23 Cardozo Arts and Ent. L.J. 391, 393-394.
 Madison, Michael, (2007), Fair Use and Social Practice, in Intellectual Property and Information Wealth; Issues and Practices in the Digital Age,
Volume I Copyright and Related Rights, Praeger, CT
 Madison, Michael, (2006) Mich. St. L. Rev. 153 Symposium: Whither the Middleman: The Role and Future of Intermediaries in the Information Age
Social Software, Groups and Governance
 Marques, Jeannine M., (2007) Intellectual Property: B. Copyright Berkeley Technology Law Journal Annual Review, 22 Berkeley Tech. L.J. 331.
 McGeveran, William and Fisher, William W., (2007) Digital Learning Challenge: Obstacles to Educational Uses of Coyrighted Material in the Digital
Age Accessed 8/30/2007 http://cyber.law.harvard.edu/media/files/copyrightandeducation.html.
 N.A., 8/31/2007, Communications Daily, “Copyright Adversaries Unite to Produce Fair-Use Best Practices”
 Quartey, Susie Developing a Campus Copyright Education Program: Conquering the Challenge, Journal of Interlibrary Loan, Document Delivery &
Electronic Reserve, (2007), at 93.
 Pike, George H. Legal Update: Where the Lawsuits Are, Information Today, January 2010, at 1.
 Rosloff, Genevieve P. “Some Rights Reserved”: Finding the Space Between All Rights Reserved and the Public Domain, 33 Colum. J.L. & Arts 37
(2009).
 Taylor, George H. and Madison, Michael J. (2006) 54 Clev. St. L. Rev. 141 Symposium: Cyberpersons, Propertization, and Contract in the Information
Culture Metaphor, Objects, and Commmodities
 Technology, Education and Copyright Harmonization Act, H.R. 2215, 108th
Cong. (2002).
 Thorny Fairness Issues Delay Decision on Google Books Settlement, American Libraries Magazine, available at
http://americanlibrariesmagazine.org/print/2115
 Yu, Peter, ed. (2007) Intellectual Property and Information Wealth; Issues and Practices in the Digital Age, Volume I Copyright and Related Rights,
Praeger, CT

49.  Questions?
 Contact:
 Stephen Marvin, West Chester University,
smarvin@wcupa.edu
 Heather Love, Slippery Rock University,
heather.love@sru.edu