Copyright & The Evolution Of Creative Commons

Copyright, Fair Use, & the Evolution of Creative Commons

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Essential Vocabulary

Copyright Exclusive Rights Infringement Fair Use First Sale Public Domain Cease and Desist Creative Commons

Copyright

"Copyright" is the right to control some uses of a creative work, be it a book, movie, song, or web design. While the specifics vary from country to country, the

essence is the same: copyright holders, whether authors, their heirs, or their publishers, have some rights to control how the work is used.

http://fairusenetwork.org

Copyright Exclusive Rights

Reproduction Distribution Derivative Works Public Display Performance


Copyright in the Constitution

The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times."

Copyright in the Constitution

Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new

works by giving them rights that will allow them to make money from their works, and

(2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts."

Copyright Infringement

"Copyright infringement" means exercising one of the copyright holder's exclusive rights without permission.

These exclusive rights include copying (or "reproducing") the work, distributing it, publicly performing or displaying it, and making "derivative works" such as abridgments or translations.

For instance, making a thousand copies of a video and selling them would almost certainly infringe the copyright holder's rights to reproduce and distribute the work.

Under certain circumstances, people who contribute to or are responsible for the infringements may also be held liable — this is called secondary or derivative liability.


Copyright Infringement & Fair Use

When a copyright holder sues a user of the work for infringement, the user may argue in defense that the use was not infringement but "fair use."

Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use.

The defense generally depends on a case-by-case judgment of the facts.

http://chillingeffects.org/fairuse/

Fair Use Doctrine

The fair use doctrine permits anyone to use copyrighted works, without the owners' permission, in ways that are fundamentally equitable and fair. Common examples of fair use are criticism,

commentary, news reporting, research, scholarship, and multiple copies for classroom use.


Fair Use – Legal Term

Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not.

These factors are:1. the purpose and character of the use,

2. the nature of the copyrighted work,

3. the amount and substantiality of the portion used, and

4. the effect of the use on the potential market for or value of the copyrighted work.

http://chillingeffects.org/fairuse/

Fair Use Factors

FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE This factor considers whether the use helps fulfill the intention of

copyright law to stimulate creativity for the enrichment of the general public.

The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new.

The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair.

Further, the more commercial defendant's use, the less likely such use will be fair.

http://chillingeffects.org/fairuse

Fair Use Factors

FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK The more creative, and less purely factual, the copyrighted work, the

stronger its protection. In order to prevent the private ownership of work that rightfully

belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection.

Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair.

While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."


Fair Use Factors

FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED

In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair.


Fair Use Factors

FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK

This factor is generally held to be the most important factor. This factor considers the effect that the defendant's use has on the

copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute

for the original work. The court may also consider whether harm to a potential market exists.

The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses.


First Sale Doctrine

The "first sale" doctrine says that once a copyright holder has sold a copy of a work, she cannot control what the user does with it. Libraries can loan books, for example, and people

can sell their old CDs.


http://fairusenetwork.org/reference/reference/c-firstsale.php

Public Domain

Works are in the public domain when their copyright term has expired; they are then freely available for use by anybody.

Works may be dedicated to the public domain by their copyright-holder; for instance, the U.S. government has determined that all of its works are in the public domain.


Copyright Term & Public Domain

The Copyright Clause of the Constitution authorizes Congress to create copyright protection for "limited times".

In the U.S. today, a work stays under copyright until 70 years after the author's death (sometimes called "life + 70"), or, in the case of copyrights held by corporations, for 95 years.

Any work published before 1923 is in the public domain under U.S. copyright law. Works published since 1923 should be examined to see if they are still copyrighted.


C&D – Cease and Desist

Cease and desist letters can be used to assert any sort of legal right, and are often used for copyright, trademark, and related "Intellectual Property" claims.

People may think they have been sued when they receive a cease and desist letter. This isn't the case. The letter may threaten a lawsuit, but it is not the same as a complaint that is filed when an actual lawsuit begins.


Digital Millennium Copyright Act

A variation on the cease and desist letter is the "Section 512 takedown notice", named after Section 512 of the Digital Millennium Copyright Act (the "DMCA").

A § 512 takedown notice is sent, not directly to an individual, but to her Internet service provider (ISP), which is defined broadly in the DMCA to include search engines, website hosting services, caching services, and companies that simply provide access to the Internet.

In some instances, the organization or individual targeted by the § 512 takedown notice may also receive a copy, either from the ISP or directly from the sender.


Creative Commons

What is Creative Commons?

An organization offering easy-to-use copyright licenses that encourage distribution of works, while preserving other copyright holder rights.

It was founded in the belief that current copyright law in the U.S. is too restrictive and thus harms creative expression and the free exchange of information and ideas.

The Creative Commons Storyhttp://wiki.creativecommons.org/Spectrumofrights_Comic1

Creative Commons Licenses

Offering your work under a Creative Commons license does not mean giving up your copyright.

It means offering some of your rights to any member of the public but only on certain conditions.

http://creativecommons.org/about/licenses/meet-the-licenses

CC License Conditions

Attribution. You let others copy, distribute, display, and perform

your copyrighted work — and derivative works based upon it — but only if they give credit the way you request. Example: Jane publishes her photograph with an

Attribution license, because she wants the world to use her pictures provided they give her credit. Bob finds her photograph online and wants to display it on the front page of his website. Bob puts Jane’s picture on his site, and clearly indicates Jane’s authorship.


Noncommercial. You let others copy, distribute, display, and perform

your work — and derivative works based upon it — but for noncommercial purposes only Example: Gus publishes his photograph on his website

with a Noncommercial license. Camille prints Gus’ photograph. Camille is not allowed to sell the print photograph without Gus’s permission.


No Derivative Works. You let others copy, distribute, display, and perform

only verbatim copies of your work, not derivative works based upon it.

Example: Sara licenses a recording of her song with a No Derivative Works license. Joe would like to cut Sara’s track and mix it with his own to produce an entirely new song. Joe cannot do this without Sara’s permission (unless his song amounts to fair

use).


Share Alike. You allow others to distribute derivative works only

under a license identical to the license that governs your work. Example: Gus’s online photo is licensed under the

Noncommercial and Share Alike terms. Camille is an amateur collage artist, and she takes Gus’s photo and puts it into one of her collages. This Share Alike language requires Camille to make her collage available on a Noncommercial plus Share Alike license. It makes her offer her work back to the world on the same terms Gus gave her.

Creative Commons Website

http://creativecommons.org

Copyright & The Evolution Of Creative Commons

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