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

What is copyright?

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

Protects expressions, not ideas

Work must be authored, original, and fixed

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.

What to do with this info?

The Copyright Workflow for Posting to bCourses

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

If workflow answer is “no,” finding links

Links to Articles, Books, Video, etc.

Cody’s libguide: http://guides.lib.berkeley.edu/readings-in-bcourses

If workflow answer is “no,” getting permission

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

Consequences?

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

Best Practices ?

USE THE WORKFLOW

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; rsamberg@berkeley.edu

Library can help you find materials and links: http://guides.lib.berkeley.edu/readings-in-bcourses; chennesy@berkeley.edu