3. Laura McKinnon, MLIS,
JD
Laura.Mckinnon@unt.ed
u
Director of the Copyright
Advisory Office
University of North
Texas
Brett D. Currier, MSLS,
JD
brett.currier@uta.edu
Director of Scholarly
Communications
University of Texas at
Arlington
3
INTRODUCTIONS
8. WHAT CAN BE COPYRIGHTED?
Literary works;
Musical works, including any accompanying words;
Dramatic works, including any accompanying music;
Pantomimes and choreographic works;
Pictorial, graphic, and sculptural works;
Motion pictures and other audiovisual works;
Sound recordings; and
Architectural works.
17 U.S.C. § 102
9. WHAT CANNOT BE COPYRIGHTED?
Ideas & theories
Copyright protects expression of ideas, but not the ideas themselves
Facts & discoveries
Including data
U.S. government works (federal level) produced by a government employee
in the scope of their duties***
Works whose copyrights have expired – enter the public domain
Works in the public domain can be used freely by anyone for any purpose
10. A NOTE ABOUT US GOV’T WORKS:
U.S. government works (federal level) produced by a government employee in
the scope of their duties
This means federal statutes, case law, and regulations do NOT have
copyright protection
However, content from commercial publishers like annotations and
headnotes DOES have copyright
Syllabi from SCOTUS does NOT have copyright protection
Prepared by federal employee in scope of their duties
State compilations of cases, statutes, regulations
Generally considered compilations of facts, so no copyright protection
17. EXCEPTIONS TO EXCLUSIVE RIGHTS
§107 Fair Use
§108 Reproduction by Libraries and Archives
§110(1) Face-to-Face Teaching
§110(2) TEACH Act
*this list is not exhaustive
19. FAIR USE BALANCING TEST
Four factors:
1. Purpose of use
Nonprofit? Educational? Commercial?
2. Nature of work used
Published? Unpublished? Nonfiction? Creative?
3. Amount and substantiality of work used
Just a small amount? Is it the heart of the work?
4. Effect on market of work
Will it compete with sales of the original?
Strong emphasis on whether use is transformative
1. Is the purpose of your use different than the original purpose of the work?
2. If yes, is the amount used appropriate to your transformative use? (too much, not
enough?)
20. FAIR USE BALANCING TEST
Only a court can definitively determine whether a use is fair – it is a balancing test,
so you cannot just check off each factor, you must weigh them all and
determine whether your use overall leans in favor or against fair use
There are several checklists that can help you make a determination
Case by case analysis – you must look at each use individually to determine
whether it is fair
Fair use is flexible and vague -- continually evolves as the 4 factors are applied to
new cases
If fair use applies you do NOT need permission
If fair use does not apply, you can always seek permission
21. • Clear’s Copyright Website
• http://clear.unt.edu/copyright
• Check list
• http://www.library.unt.edu/sites/d
efault/files/documents/fair_use_
analysis_for_unt_libraries_pdf.p
df
UNT’S
FAIR USE CHECKLIST
22. • U.S. Copyright Office
Fair Use Index
• Searchable database that
provides citations to and
summaries of court
opinions dealing with fair
use
• Tool to understand fair
use and how to apply it
• http://www.copyright.go
v/fair-use/fair-
index.html
FAIR USE INDEX
23. FACE-TO-FACE TEACHING
“performance or display of a work by instructors or pupils in the course of face-to-
face teaching activities of a nonprofit educational institution, in a classroom or
similar place devoted to instruction, unless, in the case of a motion picture or
other audiovisual work, the performance, or the display of individual images, is
given by means of a copy that was not lawfully made under this title, and that
the person responsible for the performance knew or had reason to believe was
not lawfully made…”
Must be in a classroom
Must be in person
Must be at a nonprofit educational institution
17 U.S.C. §110(1)
24. TEACH ACT
Notwithstanding the provisions of section 106, the following
are not infringements of copyright:
…
• the performance of a nondramatic literary or
musical work or reasonable and limited portions of
any other work, or display of a work in an amount
comparable to that which is typically displayed in
the course of a live classroom session, by or in the
course of a transmission, if—
17 U.S.C. § 110(2)
25. WHAT DOES TEACH ALLOW?
• Performance of nondramatic literary or musical
work;
OR
• Reasonable and limited portions of ANY other work;
OR
• Display of work (in an amount that would typically
be used in a live, face-to-face classroom);
If the following conditions are met:
17 U.S.C. § 110(2)
25
26. TEACH ACT
(A) the performance or display is made by, at the direction of, or under the actual
supervision of an instructor as an integral part of a class session offered as a
regular part of the systematic mediated instructional activities of a
governmental body or an accredited nonprofit educational institution;
Instructor makes, directs, or supervises performance or display;
AND
Performance/display is integral to class;
AND
Class is offered as regular part of instructional activities of:
Governmental body;
OR
Accredited, nonprofit educational institution
17 U.S.C. § 110(2)
27. TEACH ACT
(B) the performance or display is directly related and of material assistance
to the teaching content of the transmission;
The performance/display must be
directly related to
AND
of material assistance to
the teaching content of the online course
17 U.S.C. § 110(2)
28. TEACH ACT
(C) the transmission is made solely for, and, to the extent technologically
feasible, the reception of such transmission is limited to—
(i) students officially enrolled in the course for which the transmission is made;
or
(ii) officers or employees of governmental bodies as a part of their official duties
or employment; and
Transmission is made for and is limited to:
Students officially enrolled in that specific course
OR
Employees of governmental bodies as part of their official duties
17 U.S.C. § 110(2)
32. USING OTHERS’ WORKS
Embedding or linking to outside websites, videos, etc. does NOT infringe
copyright
Quotes and excerpts are generally recognized as fair use in academia
Photographic reproductions of public domain images (including 2d works of art)
do not have copyright protection – Bridgeman Art Library v. Corel Corp.
https://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm
Does not apply to photos of 3d art (sculpture, architecture, etc.), but fair use
may be appropriate
Terms of licenses and other contracts generally trump copyright exemptions like
fair use
33. PRESENTATION RESOURCES
Public Domain
Public Domain & Copyright Term
chart:http://copyright.cornell.edu/resources/publicdomain.cfm
Find CC and Public Domain works:
http://guides.library.harvard.edu/content.php?pid=500088&sid=4113929
Copyright – General
UNT Fair Use Checklist:
https://www.library.unt.edu/sites/default/files/documents/fair_use_analysis_for_unt_libra
ries_pdf.pdf
Colorado State University TEACH Act Checklist:
http://teaching.colostate.edu/guides/copyright/downloads/checklist.pdf
U.S. Copyright Act: http://copyright.gov/title17/
§102 Subject Matter of Copyright
§106 Exclusive Rights in Copyrighted Works
§107 Limitations on Exclusive Rights: Fair Use
§110 Limitations on Exclusive Rights: Exemption of Certain Performances and Displays
34. PART II BEGINS AT 2:15PM
Overview of recent copyright case law including:
• HathiTrust
• GSU
• Google Books
34
Brett Currier: Director of Scholarly Communications here in the library; JD/MSLS from UNC
Copyright law in the United States is as old as the United States – the Constitution grants Congress the power to create federal copyright law.
U.S. copyright law gives authors a limited monopoly in their creations.
Copyright is extremely important to scholars because it allows authors to control how their work is used by others (for a limited time)
Copyright law in the United States is as old as the United States – the Constitution grants Congress the power to create federal copyright law.
U.S. copyright law gives authors a limited monopoly in their creations.
Neither the syllabus nor the opinion of a Supreme Court case is subject to copyright protection since both are
This is the same SCOTUS opinion. You can see that Lexis adds a lot of other content to the actual opinion, including its own summary and headnotes. This content does receive copyright protection. The syllabus and opinion follow this content.
Copyright is AUTOMATIC – as soon as you fix the work in a tangible medium of expression, you have copyright protection
Original – white pages vs. yellow pages
Putting the copyright symbol on your work is a good idea if you want people to know who to contact for permission to use the work if you do not formally publish it.
This is the monopoly that copyright protection grants to owners – no one else can do these things with the materials
Prior to signing a publication agreement (and sometimes after), you own the exclusive rights to:
Academic profiles, IDs, and social media allow you to make better use of these rights! You may sign away some of these rights when you sign a publication agreement, but you can negotiate to retain all or some.
Corporations/employers are authors of works created by their employees in the scope of their employment. Example: a graphic designer creating a logo for her company’s website – the company owns the copyright in the logo.
Prior to 1978 there are several possibilities in terms of copyright protection, works had to have notice, some had to be renewed, etc., so it can get very complicated. This chart was created by Peter Hirtle at Cornell and is extremely helpful in determining whether a work still has copyright protection. It is updated yearly.
The Copyright Act includes several exceptions to authors’ exclusive rights. We are only going to discuss face-to-face teaching and fair use today.
This is UNT’s fair use checklist to help balance the four factors and determine whether your use is fair. You should fill one of these out for each item you want to use, each time you want to use it. Keep these in a file with your notes. I am available to help walk you through the checklist.
Limited exception to authors’ rights for in person teaching
Does not apply to distance learning classes, there is another, even narrower, exception for that
So these specific uses do NOT infringe copyright if the following conditions are met…
The instructor must actually make, direct to be made, or supervise the performance or display.
The performance or display must be integral to the class.
The class must be offered as a regular part of the systemic mediated instructional activities of a governmental body or an accredited nonprofit educational institution.
The performance or display of the work must be directly related to and provide material assistance to the teaching needs of the online course.
Transmission of the materials may only be made to students officially enrolled in the specific course OR to employees or officials of governmental bodies as part of their employment or official duties. Must use technological features to ensure reception is limited to these parties.
In order to be in compliance with TEACH, the institution must create copyright policies, provide notice that materials in courses may be subject to copyright protection, and provide informational materials that accurately describe, and promote compliance with the United States Copyright Laws.