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08.09.16 Copyright Compliance Training for bCourses
- 1. Copyright Compliance Training for bCourses Rachael G. Samberg Scholarly Communication Officer August 2016
- 2. Best Practices, Not Legal Advice Information presented here is intended for informational purposes only, and should not be construed as legal advice.
- 3. 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
- 5. The Constitution U.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?
- 6. 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
- 7. 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
- 8. What Can Be Protected Protects expressions, not ideas Work must be authored, original, and fixed
- 9. 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
- 10. 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.
- 11. 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
- 12. 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
- 13. 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)
- 14. 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
- 15. 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)
- 16. 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.
- 17. What to do with this info? The Copyright Workflow for Posting to bCourses
- 18. 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
- 19. If Instructor’s answer to any question is “yes”: If Instructor’s answer to all questions is “no,” two options: Material can be posted directly to bCourse site (though link always possible/preferable ) Post link to content, rather than content, itself If link can’t be found, or Instructor prefers posting copies, request copyright holder’s permission OR Copyright Workflow for Posting to bCourses Instructor 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)?
- 20. Is the workflow answer “yes”? Library’s guide can help instructors answer the workflow questions http://guides.lib.berkeley.edu/instructor-copyright-bcourses
- 21. If workflow answer is “no,” finding links
- 22. Links to Articles, Books, Video, etc. Cody’s libguide: http://guides.lib.berkeley.edu/r eadings-in-bcourses
- 23. If workflow answer is “no,” getting permission
- 24. 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
- 25. Consequences?
- 26. 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
- 27. 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).
- 28. 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
- 29. 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
- 30. Best Practices? USE THE WORKFLOW
- 31. All photos © 2015-2016 by Rachael G. Samberg Presentation 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; rsamberg@berkeley.edu Library can help you find materials and links: http://guides.lib.berkeley.edu/readings- in-bcourses; chennesy@berkeley.edu
Notes de l'éditeur
- The Constitution is giving Congress the right to create laws that encourage progress/knowledge by rewarding authors for writing and making things. So, what laws did Congress make, and what are the rewards for writing/making things?
- Congress enacted the Copyright Act. The rewards for authors are set forth in Section 106 of Copyright Act, which grants copyright owner six main groups of exclusive rights for the length of their copyright. You will sometimes hear these referred to as the “bundle” of rights that copyright creates.
- In this photo, this was a street performance I attended. The performance is not protected by copyright, if they didn’t write down the choreography steps, or videotape it. However, the photo I took of the performance is protected by copyright. Has to be authored by human – monkey selfie
- No exhaustive list of types of protectable works.
- Works by the U.S. (federal) government generally excluded from copyright protection, even though they are likely to fall within one of the categories listed before. (17 U.S.C. § 105) Works whose copyright term/duration has expired
- Fair use exception is intended to help encourage/protect criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research
- In an academic context, they typically look at the first and fourth factors: Purpose/character of the use (for which they ask, is it transformative) and effect upon market for original.
- The TEACH Act of 2002 expanded certain statutory exemptions of copyright law to accommodate distance education. Much like the fair use exception (set forth in 17 USC § 107), the TEACH Act (codified in 17 USC §§ 110(2), et seq.) thus provides another means under which the copyrighted work, itself, rather than a link, can be uploaded to bCourses without first seeking the copyright holder's permission. In many cases, 17 USC § 107 (fair use) may provide a broader exception under which to post desired course content than the TEACH Act. Nevertheless, it is important to understand what the TEACH Act can cover: 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 an amount comparable to what would be used during a 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) To rely on the TEACH Act to post the above materials, the following parameters must be satisfied: The instructor supervises students' use of the materials The material is integral to the class session The material is directly related to and of material assistance to teaching course content The material is provided as a "mediated instructional activity" (i.e. provide the same type of material an instructor would use as part of a live classroom session) The materials are accessible and and retained only for the length of a "class session" The materials are not marketed as part of online instructional activities (i.e. they are not commercially-available digital educational materials) The materials were not unlawfully copied (i.e. the instructor did not "know or have reason to believe" that they were not lawfully made and acquired)
- Online guide to the Workflow provides assistance to instructors to help them answer each of those four questions.
- http://guides.lib.berkeley.edu/instructor-copyright-bcourses
- Ask the author or publisher: Could be as simple as e-mailing the professor/author who wrote it and asking her/him if you can use
- Copyright is directly infringed when: A person who is not the owner of copyright With access to the copyrighted work Violates any of the exclusive rights In a material and substantial manner Beyond what is permitted by the statutory exemptions Without the permission of the copyright owner Indirect Infringement: In addition to direct infringement, one can also indirectly infringe copyright. There are two types of indirect infringement: contributory infringement and vicarious liablity Criminal liability (17 USC § 506): Willful copyright infringement can also be a criminal violation, punishable by jail time lasting up to ten years (for repeat offenders) and fines ranging to $250,000 for an individual or $500,000 for an organization (18 USC § 2310)
- See: Corporate Counsel Guide to Copyright Law §2:23
- The Copyright Act was amended to subject states to liability for copyright infringement – they were otherwise immune under the 11th Amendment. However, at least three courts –including within the 9th Cir, which is CA, have found that the changed language does not constitute a valid abrogration of state sovereign immunity and is therefore unconstitutional. E.g. Marketing Information Masters, Inc. v. Board of Trustees of Cal. State University, 552 F. Supp. 2d 1088 (S.D. Cal. 2008). So, we have a lower court ruling saying that 17 USC § 511 is unconstitutional to the extent it tries to subject states & state employees acting in official capacity to copyright infringement suits; but, the Supreme Court has actually not weighed in on states’ sovereign immunity yet. Scholars speculate that there is some possibility that the Supreme Court might consider the scope of 11th Amendment sovereign immunity
- Actual damages Also called compensatory damages, this consists of the dollar amount of any demonstrable loss the owner suffered as a result of the infringing activity. This loss may be from lost sales, lost licensing revenue, or any other provable financial loss directly attributable to the infringement.