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OWNING © AND USING
© WORKS
Kevin L. Smith, Duke University
William M. Cross, NC State University
Start with ownership.
How do you get ©?
• © is automatic
  • No need for registration, renewal or even © symbol.
  • © vests as soon as original expression is fixed in tangible form.
  • Most be original, but standard is very low.
  • Text, images, film, software, architecture, choreography & sculpture
    all protected.
  • Ideas, “useful” articles not protected by ©.
Who owns ©?
• It’s good to be an author:
   • “Copyright… vests initially in the author or authors of the work”
   • Able to transfer or license the rights
Joint ownership
• “The authors of a joint work are co-owners of © in the
 work.”
  • Co-owners have an equal & undivided share in the bundle of rights.
  • Lots of opportunity for conflict!
Work made for hire
• If a work is “made for hire” the employer is considered the
 author.
  • Two ways:
    • Created by a “regular employee.”
    • Created by an independent contractor
What do you get?
• Six exclusive rights:
  • Reproduction
  • Distribution
  • Public performance
  • Public display
  • Right to prepare derivative works
  • Right to control digital transmission
    of a sound recording.
About those rights
• It is a bundle
   • Can be divided up to be sold or licensed
   • Assignment v. license
• The rights are limited
  • By time – copyright ends
  • By scope – each right subject to exceptions
    • All are subject to fair use.
Using ©

“If I have seen further it is by standing on the
             shoulders of giants.”
                  - Robert Merton (1965)
                          and
                   - Isaac Newton (1676)
                             and
               - Bernard of Chartres (1159)
                           and . . .
Specific Exceptions: Instruction

17 U.S.C. 110(1): not a violation of copyright . . .
            Perform or display

          A legal copy
“performance or display of a work by instructors or pupils in
the course of part of classroom*teaching activities of a nonprofit
           As face-to-face instruction

educational institution, in a classroom or similar place
devoted to instruction . . . ”
Specific Exceptions: Library Copying
   Copies for Users and ILL            Preservation

                              Unpublished works
                               • In the library’s collection
• “Private study and
                               • For preservation or security
 research”

                              Published works
• Becomes property of          • “damaged, deteriorating,
 users                           lost, or stolen or format is
                                 obsolete”
                               • “reasonable investigation”
• Copyright notice               and unused replacement not
                                 available at a “fair price”
Fair Use

• A general exception to copyright monopoly


• “Fair use is for everybody”


• “An exception where the value you add to society
 outweighs the harm done to the rightsholder.”
That Sounds Kind of Vague . . .
                           Four Factors
                     (not a checklist or vote)

1. What are you doing?


2. What are you using?


3. How much are you using?


4. Is your work a substitute for the original?
Purpose and Character
        Educational                 For/Non-profit




• Does your use serve        • Are you making money off
 society, or just your own    of someone else’s work?
 interests?
Nature of the Original
      Private or Public?             Fact or Fiction?



Is it already widely-         Can anybody see it (like a
available (like a newspaper   tree)
article)
                              or
or
                              only the imagination of the
                              author (like Emily
locked away (like a diary)    Dickenson’s “poem lovely
                              as a tree”)
Amount and Substantiality

• Less is better but . . .


• Not just how much but how much do you need for
 your good purpose?


• Example: for a book review 1-2 sentences may do, but for
 art critique you may need the entire image
A Substitute for the Original?

• “Market harm” but more about substitution
 vs. new contribution

• Are you just free-riding or moving the
 conversation forward?
Putting It All Together:
Transformative Use

• The trend in modern judicial analysis


• Synthesizes all four factors


• Does your use recontextualize and add value?

• Examples:
  • commentary and critique as with parody
  • Thumbnails to organize images and aid in finding
Example: E-Res @ GSU

     Purpose and Character:
     strongly favors nonprofit,
          educational use

        Nature of Original:
     favors use of non-fiction

     Amount & Substantiality:
  favors use of 10%/one chapter

            Market Harm:
     favors user unless “readily
available” at a “reasonable” price in
        a “convenient” format
Tools: Code of Best Practices
Questions




            ?
Coming December 5 at 2pm!

  “Recent Developments in Library ©”
 • New cases!


 • New rules!


 • More powerpoint!

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Owning copyright and using copyrighted works (November 14, 2012)

  • 1. OWNING © AND USING © WORKS Kevin L. Smith, Duke University William M. Cross, NC State University
  • 3. How do you get ©? • © is automatic • No need for registration, renewal or even © symbol. • © vests as soon as original expression is fixed in tangible form. • Most be original, but standard is very low. • Text, images, film, software, architecture, choreography & sculpture all protected. • Ideas, “useful” articles not protected by ©.
  • 4. Who owns ©? • It’s good to be an author: • “Copyright… vests initially in the author or authors of the work” • Able to transfer or license the rights
  • 5. Joint ownership • “The authors of a joint work are co-owners of © in the work.” • Co-owners have an equal & undivided share in the bundle of rights. • Lots of opportunity for conflict!
  • 6. Work made for hire • If a work is “made for hire” the employer is considered the author. • Two ways: • Created by a “regular employee.” • Created by an independent contractor
  • 7. What do you get? • Six exclusive rights: • Reproduction • Distribution • Public performance • Public display • Right to prepare derivative works • Right to control digital transmission of a sound recording.
  • 8. About those rights • It is a bundle • Can be divided up to be sold or licensed • Assignment v. license • The rights are limited • By time – copyright ends • By scope – each right subject to exceptions • All are subject to fair use.
  • 9. Using © “If I have seen further it is by standing on the shoulders of giants.” - Robert Merton (1965) and - Isaac Newton (1676) and - Bernard of Chartres (1159) and . . .
  • 10. Specific Exceptions: Instruction 17 U.S.C. 110(1): not a violation of copyright . . . Perform or display A legal copy “performance or display of a work by instructors or pupils in the course of part of classroom*teaching activities of a nonprofit As face-to-face instruction educational institution, in a classroom or similar place devoted to instruction . . . ”
  • 11. Specific Exceptions: Library Copying Copies for Users and ILL Preservation Unpublished works • In the library’s collection • “Private study and • For preservation or security research” Published works • Becomes property of • “damaged, deteriorating, users lost, or stolen or format is obsolete” • “reasonable investigation” • Copyright notice and unused replacement not available at a “fair price”
  • 12. Fair Use • A general exception to copyright monopoly • “Fair use is for everybody” • “An exception where the value you add to society outweighs the harm done to the rightsholder.”
  • 13. That Sounds Kind of Vague . . . Four Factors (not a checklist or vote) 1. What are you doing? 2. What are you using? 3. How much are you using? 4. Is your work a substitute for the original?
  • 14. Purpose and Character Educational For/Non-profit • Does your use serve • Are you making money off society, or just your own of someone else’s work? interests?
  • 15. Nature of the Original Private or Public? Fact or Fiction? Is it already widely- Can anybody see it (like a available (like a newspaper tree) article) or or only the imagination of the author (like Emily locked away (like a diary) Dickenson’s “poem lovely as a tree”)
  • 16. Amount and Substantiality • Less is better but . . . • Not just how much but how much do you need for your good purpose? • Example: for a book review 1-2 sentences may do, but for art critique you may need the entire image
  • 17. A Substitute for the Original? • “Market harm” but more about substitution vs. new contribution • Are you just free-riding or moving the conversation forward?
  • 18. Putting It All Together: Transformative Use • The trend in modern judicial analysis • Synthesizes all four factors • Does your use recontextualize and add value? • Examples: • commentary and critique as with parody • Thumbnails to organize images and aid in finding
  • 19. Example: E-Res @ GSU Purpose and Character: strongly favors nonprofit, educational use Nature of Original: favors use of non-fiction Amount & Substantiality: favors use of 10%/one chapter Market Harm: favors user unless “readily available” at a “reasonable” price in a “convenient” format
  • 20. Tools: Code of Best Practices
  • 22. Coming December 5 at 2pm! “Recent Developments in Library ©” • New cases! • New rules! • More powerpoint!