Overview of: Building On Others’ Creative

Expression

What is Orphan Works?

• An orphan work is a copyrighted work for which the copyright owner cannot be identified and contacted..

Risks of using Orphan Works

What is Public Domain?

• The state of belonging or being available to the public as a whole.

• Not subject to copyright.

What is Digitizing?

• Convert (pictures or sound) into a digital form that can be processed by a computer.

What is Mass Digitization?

• It is the conversion of texts or images to digital format on a very large scale using robotic equipment capable of scanning hundreds of pages per hour

What is Fair Use:

• Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.

Two Important Questions:

1. Is the use you want to make of another's work transformative : Does it add value to the work and repurpose the work for a new audience. 2. Is the amount of material you want to use appropriate to achieve your transformative purpose?

What if the Purpose is not Transformative?

Question: What if you want to copy several chapters from a textbook for your students to read? Answer: Textbooks are created for an educational audience. When we are the intended audience for materials, or when we use a work in the same way that the author intended it to be used when she created it, we are not "repurposing" the work for a new audience.

Question: What if you are repurposing the work for a new audience and adding value to it by comparing it, critiquing it or otherwise commenting on it, but you want to use a lot more than is really necessary to make your point?Answer: In cases like these we also look at whether the copyright owner makes her work available on the open market -- whether there is an efficient and effective way to buy or access the work for our use, or get permission from the owner to do what we want to do. If not, the difficulty in acquiring the work, access to it, or permission to use it may support our relying on fair use due to the market's failure to meet our needs.

Steps to Considerfor the Following Works:

• 1. Unprotected works• 2. Library-licensed works• 3. Creative Commons licensed works• 4. Is the work available freely on the open

Web without an express permissions statement, and therefor covered by an implied license?

Unprotected works

• Works that lack originality – logical, comprehensive compilations (like the phone book)– unoriginal reprints of public domain works

• Works in the public domain• US Government works • Facts• Ideas, processes, methods, and systems described in copyrighted

works• The presence or absence of a copyright notice no longer carries

the significance it once did because the law no longer requires a notice. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice means virtually nothing.

• Lolly Gasaway and by Peter Hirtle explain the rules for determining whether a protected work is in the public domain in two excellent resources. These rules are complex and somewhat hard to describe, partly because they changed many, many times during the 20th century. At their most basic, excluding anonymous works and works for hire, the rules can be summarized as follows:

• Any work published on or before December 31, 1922 is now in the public domain.• Works published between January 1, 1923 and December 31, 1978, inclusive, are protected for a

term of 95 years from the date of publication, with the proper notice.

– But, if the work was published between 1923 and December 31, 1963, when there was a non-automatic "renewal term," the copyright owner may not have renewed the work. If he or she did not renew, the original term of protection (28 years) will have expired and these works will be in the public domain. Check the Stanford "Determinator" to determine renewal status for books published during these years.

• After 1978, the way we measure the term of protection changes. It no longer begins on the date of publication, rather, itruns for 70 years from the date the author dies (called, "life of the author" plus 70 years). Further, publication is irrelevant. Works are protected whether they are published or not.

• Finally, those works that were created before December 31, 1978, but never published, are now protected for the life of the author plus 70 years

Library-licensed works

• Check your library's databases and catalogs. They may already have just what you need.

Creative Commons licensed works

• Learn to do effective Creative Commons searches! You may find exactly what you need with the rights you need to use it, available online for free

• Is the work available freely on the open Web without an express permissions statement, and therefor covered by an implied license?

• People who place materials on the open Web do so knowing that other people will use our works in certain ways

• For example: Downloading, making personal copies, sending copies to friends, etc.

• This is the essence of an implied license. Materials put out without “expressly" give one the right to do these things, the law assumes that one must have intended to give you the right to do what a reasonable copyright owner would expect the public to do.

• Most nonprofit, educational uses would likely be within the scope of what people expect when they place materials on the open Web.

• The scope of this license might be the same as or different from fair use, but it's good to know that we have both. Providing attribution should become automatic for you, whenever you use others' works.

The Four Fair Use Factors:

• Is the use you want to make of another's work transformative?

• Does it add value to the work for a new audience ?

• Does it have a repurpose of the work for a new audience?

• Is the amount of material you want to use appropriate to achieve your transformative purpose?

Coursepacks, reserves, learning management systems, iTunes U and

other platforms for distributing course content

• For transformative uses, use no more than you need to achieve your transformative purpose.

• If you need to use materials in essentially the same way or for the same audience as the author intended, or you use more than necessary to achieve a transformative purpose, limit materials distributed in coursepacks, through reserves, learning management systems and iTunes U to:

• single articles or chapters, or other small parts; several charts, graphs or illustrations; small parts of works such as performances (audio, video)

• copies of materials that a faculty member or the library already possesses legally (i.e., by purchase, license, fair use, interlibrary loan, etc.)

Digitizing and Providing Access to Images and Audiovisual Resources for Educational Purposes

• If the use of the resources is transformative and the amount used is appropriate for the transformative purpose, digitize them and make them available as needed, in accordance with the limitations below. In some cases where a use is transformative and the institution's materials are unique, fair use will support digitizing them and providing public access. But in other cases, digitized materials should be made available in accordance with the limitations below.

• If the use is not transformative, for example, in the case of analog slide sets produced and marketed for an educstional audience, assess the scope and relevance of licensed digital resources available to meet educator's needs.

• If your needs and the content of licensed digital resources significantly overlap: Acquire licenses to use the commercially availalble digital collections and digitize institutional holdings in accordance with the limitations below.

• If there is little overlap in your needs and readily available digital collections, for example, if your materials are no longer available or are rare: Digitize and use institutional works in accordance with the following limitations:

Digitizing and Using Other's Works Creatively

• Students, faculty and staff who wish to use others' works in creative, transformative ways, may incorporate others' works into their own original creations and display and perform the resulting work in connection with or creation of --

• class assignments • curriculum materials • remote instruction • examinations• student portfolios• professional symposia• While creative uses tend to be transformative, we still must be careful to

use no more than needed to achieve the transformative purpose• Limit copies and distribution

Research Copies

• Making copies as part of the research process may or may not be transformative.

• Limit research copies to• single chapters • single articles from a journal issue • several charts, graphs, illustrations • other similarly small parts of a work

The Four Fair Use Factors:

• What is the character of the use? • What is the nature of the work to be used?

• How much of the work will you use?

• What effect would this use have on the market for the original or for permissions if the use were widespread?

FACTOR 1: What is the character of the use?

• Criticism• Commentary• News Reporting• Parody• Repurposing a work, providing a new context, or otherwise

adding value to the work

• Nonprofit• Educational• Personal• Commercial

FACTOR 2: What is the nature of the work to be used?

• Fact• Published• A mixture of factual and imaginative• Imaginative• Unpublished

FACTOR 3: How much of the work will you use?

• Small amount

• An appropriate amount for a transformative purpose

• More than a small amount or the amount needed to accomplish a transformative purpose

FACTOR 4:

If This kind of use were Widespread, What Effect Would it Have

on the Market for the Original or for Permissions?

• Proposed use is transformative and not merely duplicative (first factor) and amount used is appropriate for the transformative purpose (third factor)

• Original is out of print or otherwise unavailable

• Copyright owner is unidentifiable

• No ready market for permission

• Password protection; technological protection; limited time use

• Use is not transformative

• Competes with (takes away sales from) the original

• Avoids payment for permission(royalties) in an establishedpermissions market