Owning copyright and using copyrighted works (November 14, 2012)
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Transcript of Owning copyright and using copyrighted works (November 14, 2012)
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
Perform or display A legal copy As part of classroom* instruction
17 U.S.C. 110(1): not a violation of copyright . . .
“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 . . . ”
Specific Exceptions: Library Copying
Copies for Users and ILL Preservation
• “Private study and
research”
• Becomes property of users
• Copyright notice
Unpublished works • In the library’s collection • For preservation or security
Published works
• “damaged, deteriorating, lost, or stolen or format is obsolete”
• “reasonable investigation” 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 society, or just your own interests?
• Are you making money off of someone else’s work?
Nature of the Original
Private or Public? Fact or Fiction?
Is it already widely-available (like a newspaper article) or locked away (like a diary)
Can anybody see it (like a tree) or only the imagination of the author (like Emily 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!