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Alien NationCopyright in the 21st Century

Rosemary A. ChaseGeorge Mason University LibrariesUniversity Copyright Officer

BYTE Week 2003

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Intellectual Property Issues in Higher Education

TEACH Act –Digital Millennium © Act –…What we need to know

But first…

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Presume EVERYTHING IS OWNED [copyrighted, patented, trademarked]

…by someone.

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Only the owner cancopy distribute perform display or make a derivative work.

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“FAIR USE”LETS YOU USE OTHERS’ WORKS…

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…BUT NOT VERY MUCH, AND NOT FOR VERY LONG.

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Sometimes you need to ask permission

…ahead of time.

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What is Copyright?

… exclusive rights granted only to the owners of original works.Literary… musical… artistic…etc.

A set of EXCLUSIVE RIGHTS

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Basis for U.S. Copyright In the early 18th century, authors were

given a 14 year exclusive term and the opportunity to renew for an additional 14 years, if they were still living…

Statute of Anne: 1710Model for U.S. Constitution, Article I, Section 8.

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U.S. Constitution Article I, Section 8:

“The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Title 17 of U.S. Code - Federal Copyright Law

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Copyright... Work Must Be:

– Original expression– Fixed in a tangible form

Begins:–At the moment original work is fixed

Example: Graphic created in PhotoShop

is protected as soon as saved to disk.

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Non-Protected Works-Cannot be Copyrighted

Facts Titles Names Short Phrases Ideas

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Public Domain

Non-Protected Works Lost Copyright Abandoned Works Expired Copyright Federal Government Works

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Registration & Notice

Copyright may be registered © Notice may be placed on work Neither are required in order to

be “copyrighted”

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§. 106: Owners haveexclusive rights to…

Reproduce - make copiesMake derivative worksDistribute - copiesPerform publiclyDisplay publicly

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Statutory Exceptions

“Limitations on Exclusive Rights” Fair Use – section 107

Reproduction by libraries and archives – section 108

Exemptions of certain performances and displays – section 110

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What is Fair Use?

It is the portion of a work whichis considered to be a fair amountto reproduce for certain fair purposes.

UHMM…could you be more specific?

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§ 107. Limitations on exclusive rights: Fair use

“Notwithstanding the provisions of section 106, the fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, …

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§ 107: Fair Use…for purposes such as:

– criticism, comment, news reporting

– teaching (including multiple copies for classroom use)

– scholarship

– or research

…is not an infringement of copyright.

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§ 107: Fair Use

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include…”

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…all of these (the famous “four factors”)

1. Purpose2. Nature3. Amount4. Effect

All Four Factors must be considered.

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§. 107: Fair Use

Purpose/Character of Use - commercial or nonprofit educational?

Nature of Work - fact or fiction?

Amount and Substantiality - 10%??

Effect of use on Market or Value

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Agreement on Guidelinesfor Non-profit Classroom

From the House Report which accompanied the Copyright Act of 1976

Only considered contemporary technology – i.e. photocopies & phono records

The Guidelines (included in your handouts) give examples, definitions and prohibitions.

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Digital Millennium Copyright Act…

Known as the DMCA Signed October 1998 Intended to bring FAIR USE to the

digital environment but did NOT

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DMCADigital Millennium Copyright Act

What did it change?– Reduced liability for OSPs (Online Service

Providers) such as libraries and other technology providers for what their clients do with institutional equipment –

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DMCADigital Millennium Copyright Act

What did not change?

§107- Fair use was not expanded to include digital environment.

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DMCADigital Millennium Copyright Act

Why should I be informed about the DMCA?– The University receives “cease & desist”

notices based on alleged infringement found on Mason’s servers, subpoenas for names may not be far behind.

– DMCA’s offer of reduced liability has strings attached…

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DMCADigital Millennium Copyright Act

– STIPULATIONS includeInstitution agent required to register with the

Library of Congress to field complaintsInstitution must post copyright compliance

policyAccurate instruction on copyright compliance

and University policy must be offeredPosted notices required on equipment

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Where is my fair use?

TEACH Act – signed November 2002 acknowledges fair use for distance learning

– and other avenues for online publishing in non-profit education…

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TEACH Act Alters §110(2) to include Distance

Education & digital transmissions in addition to “closed-circuit” T.V.

Restrictions include:– Limiting access to enrolled students– Providing technology measures to prevent

retention of the work in accessible form

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TEACH Act

The GOOD NEWS

– Expands allowed works

• Display/performance of almost all types of works

– Expands receiving locations

• All locations – not just closed-circuit T.V.

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TEACH Act

More GOOD NEWS…

– Allows storage

• Retention and access for limited time

– Allows digitizing of analog materials

• Only if not already available in that form

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TEACH Act The BAD NEWS

– Law still based on “mediated instructional activities”

– Institution must impose restrictions on access– Encourages increased centralization of Distance

Learning course design and implementation• …which may lead to increased content monitoring• Raising issues of academic freedom

– Not the same broad rights as “face to face” classroom allowances

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TEACH ACT

For Instructors… What’s allowed

– “reasonable and limited portions” of dramatic or non dramatic literary and musical works, “in an amount comparable to that which is typically displayed in the course of a live classroom session.”

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TEACH Act

For Instructors What’s off limits for digitization

– Anything marketed in that format– Anything “not lawfully made and acquired”

under U.S. Copyright Act.– Stage plays in their entirety (dramatic works)– Optional readings (must be integral)

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What has TEACH Act done for Electronic Reserves?

…nothing. Legislation specifically excludes Electronic Reserves– (connotation is optional, supplemental)

We continue to rely on the old CONFU Guidelines.

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Electronic Reserves

CONFU GUIDELINES IN BRIEF

Documents are accessible only by faculty name and course

Access is limited to currently enrolled students and faculty

Password is assigned to each instructor Faculty may LINK to electronic library reserves

from their department pages or personal pages

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Electronic Reserves

The first page of each reading/article must have a full bibliographic citation.

DMCA requirement: A copyright notice must appear on the first page of each document to accompany the complete citation (replaces the generic stamp used for so many years: “This material may be protected by copyright law, Title 17, U.S. Code.”)

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Why isn’t everyone using E-reserves?

Most book chapters are not permitted when permission is requested.

Students say it takes too long to download the readings.

Professors still want to scan their required readings onto web courseware… risky business…

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Using Course WareQ. Can I scan articles into WebCT without

getting permission? After all, it IS password protected and no one can get to it.

A. Only the first semester. We recommend letting the Library do the scanning and taking on the permissions responsibility, not to mention the cost.

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IN THE NEWS

FILE SHARING– RIAA – (Recording Industry

Association of America) successfully sued for sharing music using campus servers.• The Universities were NOT sued.

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According to DMCA & TEACH: It is your responsibility to:

– Inform your students of the restrictions discussed today

– Instruct your students on proper attribution, acknowledgments and citations to appear on each reading copied

– Resist the temptation to turn a blind eye to the portion limitations and systematic abuse

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You cannot be “directed by a higher authority” to do anything that you suspect would be an infringement.

Intent to infringe is NOT required, to be found liable.

Policy protects the institution and its faculty only if the faculty have followed policy.

Liability Issues…

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Question... Is it OK for faculty to photocopy for their

students the information they have printed off the Web?

NO, not unless they have proof it’s PD. Their only legal copy is the personal copy printed/downloaded from the web site. Each student should print out her own copy.

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Question…..Question…..

Can a professor use a student essay from

last semester in a collection of readings for future semester course packet or reserves?

–Yes, but only with express written consent from each

student author.

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Can a collection of photocopied articles and book chapters (course reader) ever be considered a “fair use” for course reserves?

NONOAny compilation of previously published readings is considered a new publication.

Question...Question...

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Can a stack of photocopied loose articles and book chapters ever be considered a “fair use” for electronic reserves?

It might beIt might be, but only the first , but only the first time - independently accessed time - independently accessed by individual students.by individual students.

Question...Question...

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Questions??????

NO and NO.How about scanning in newspaper articles – the newspaper is PD, right?

…Wrong.

Can we scan into ERS a set of maps?Aren’t maps facts, like common knowledge?

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Is an instructor allowed to put on reserve, a photocopy of a textbook or workbook that can be bought in the bookstore?

Question...

NO.

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In conclusion

We are not police officers, but we do have responsibilities and should take them seriously.

Remember: These are not my personal rules. Supporting compliance with the law promotes integrity. It is your responsibility to uphold University policy & promote academic integrity.

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Bottom line…Educational purpose

– does NOT equal FAIR USE.

10% IS NOT ALWAYS FAIR USE.

OUT-OF-PRINT does NOT mean out-of -COPYRIGHT.

WWW is NOT public domain.

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University Copyright Officehttp://library.gmu.edu/copyright

George Mason University LibrariesMSN 5D9 Johnson Ctr. 120 (136)George Mason UniversityFairfax, VA 22030-4444

Monday – Friday: 8:00 – 4:30703-993-2544rchase@gmu.edu