IN COPYRIGHT: FUNDAMENTALS

GREG CRAM, NYPL - GREGCRAM@NYPL.ORG / @GREGCRAM

But how do you know which statement to apply?That requires a basic understanding of copyright lawGoing to spend the rest of this webinar laying out that basic foundation of copyright law that’s relevant to applying these statementsWe’ll also talk about the basics of contract law that change the rules set forth by copyright

In ©: Fundamentals• First Walkthrough of Statements • Foundation of © Law • Scope of © Protection • Rights of © Ownership • Ownership • Remedies for Infringement

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IN COPYRIGHT WORKS

Start with In Copyright1. In Copyright is exactly what it sounds like—item is in copyright2. Indicates that the Item has been identified as an ‘Orphan Work’ under the terms of the EU Orphan Works Directive. Targeted towards institutions that can use the directive. So not going to talk about it3. In Copyright - Rightsholders Unlocatable or Unidentifiable. US orphan works 4. Indicates that the Item is in copyright but that educational use is allowed without the need to obtain additional permission. Likely in situations where rights holder has permitted institution to allow users to make educational uses5. Indicates that the Item is in copyright but that noncommercial use is allowed without the need to obtain additional permission. Again, likely because rights holder has given institution to make item available to others for noncommercial uses

OUT OF COPYRIGHT WORKS

1. Indicates that the underlying Work is in the Public Domain, but the organization that has published the Item is contractually required to restrict certain forms of use by third parties. Usually because of donor agreements or digitization agreements2. Indicates that the Work is in the Public Domain, but the organization that has published the Work is contractually required to allow only noncommercial use by third parties. Usually part of projects like Google Books in the EU3. Indicates that the underlying Work is in the Public Domain, but that there are known restrictions imposed by laws other than copyright on the use of the Item by third parties. Again, targeted at institutions outside US who have laws that protect traditional cultural expressions4. No Copyright - US. Indicates that the work is in the public domain at least under the laws of the US

UNDETERMINED

1. Indicates that the data provider believes that no copyright or related rights are known to exist for the Item, but that a conclusive determination could not be made. In the US, this is particularly useful for archival collections with material where publication status isn’t clear

2. Indicates that the data provider has not evaluated the copyright and related rights status of the Item.

3. Copyright Undetermined. The goal is to use this only when no copyright status could be determined

Creative Commons

So where does CC fit in here?Statements are supposed to live in parallel with CC statementsBut CC licenses applied by rightsholderIn most cases, not institution making available

Creative Commons

Even the public domain tools will be accepted as valid rights statementsWe’ll talk in the afternoon about the differences between the Public Domain Mark and the other No Copyright flavors

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Take a deeper dive into the In Copyright statements

IN COPYRIGHT WORKS

Start with In Copyright

Did you...• Write a Facebook post? • Shoot a Vine video? • Write an email? • Draw a doodle? • Take a photograph? • Write a paper?

Copyright is Everywhere

Direct impact on your workOn a daily basis, you likely interact with copyright law more than any other federal lawWe create works automatically protected by copyright everydayWe use copyrighted works every dayBut despite its pervasiveness in our daily lives, not always well understood

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. – Art. I, § 8, Cl. 8

Copyright law’s foundation comes from the Constitution, which gives Congress 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——Why do we have copyright? Lots of theories, but one of the most basic is that copyright law is a means to an endWe reward authors and creators with a limited period of exclusivity and control to incentivize the creation of new works

CC BY-NC 2.0 - flickr: rbbaird

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We reward authors and creators with a limited period of exclusivity and control to incentivize the creation of new worksFor new works to be created, Expected Return greater than Expected Costs——The ends here are the creation of new works so that we can all learn from each otherThe founders named the first copyright act…[click]

An Act for the Encouragement of

Learning

“An Act for the Encouragement of Learning”In other words, we want knowledge to be made available so that we can all learn from that knowledgeAllows society to gain new insights and, after the period of exclusivity is over, reuse that expression and permit unlimited copying

Second theory is around moral rights, or human-centric rightsability of authors to control the eventual fate of their worksIt’s a human right to control your works, including the right to have your work attributed to you, the right to prevent others from claiming your work, and the right to protect the integrity of your works——For the US, we started as an economic right country and did not recognize the moral right theoryMoral rights originate in Europe—very European ideaBut as trade brought us closer together, so did our lawTalk about a few changes shortly that brought us into a compromise position

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Original Works

© 2017 by Greg Cram

Walk through some basics of copyright lawYou have likely encountered a copyright notice on items in your collectionUse this as a point of reference for us

© 2017 by Greg Cram

Start with the copyright noticeWhat is protected by copyright law?

What does © protect?

What does © not protect?

Idea, procedure, process, system, method of operation, concept, principle, or discovery

Not Protected:

What does © protect?

1. Original Works of Authorship

2.Fixed in any Tangible Medium of Expression

Original Works of AuthorshipFixed in any tangible medium of expression

1.Original Works of Authorship

2.Fixed in any Tangible Medium of Expression

Original?

What does it mean to be original?

Paraphrase of TS Eliot: “Good writers borrow from other writers. Great writers steal from them outright”

Modicum of creativity

To be an original work, must have a modicum of creativity

Facts

Facts are not creative

Information in phonebooks is not original (facts)Thin copyright: But creative expression is covered, including layout, design, color or anything else that is originalIs listing names in alphabetical order in white pages rise to the level of protection? [no!]

In 1999, we also learned something about what kind of photography is protected by copyright law“Elements of originality ... may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved. But “slavish copying,” although doubtless requiring technical skill and effort, does not qualify. [click]”In other words, although the photography staff in NYPL’s Digital Imaging Unit bring years of experience, care and professionalism to their work, the photographs they take of 2D items do not create new rights for NYPL

Unfortunately, DPLA is replete with examples of institutions trying to assert a new copyright in their photography of 2D objectsFor example, this contributor is claiming a new copyright from 2010 on their photography of an item that appears to be in the public domain

1.Original Works of Authorship

2.Fixed in any Tangible Medium of Expression

Modicum of creativityFacts not protectedFacts/Ideas v. expression

1. Original Works of Authorship

2.Fixed in any Tangible Medium of Expression

Sufficiently permanent or stableNeeds to be perceived

“Bit by bit” CC BY-SA 2.0 Flickr: Steven Lilley

Chiseled in Stone

“Handwriting at Starbucks” CC BY 2.0 Flickr: Marcin Wichary

Writing

“Hardcover book gutter and pages” CC BY 2.0 Flickr: Horia Varlan

Books?

What about speaking? I’m speaking now. But is it being fixed?

What about a live broadcast, whether TV or radio?No, unless recorded with authorization of rights holder

Courts have said that things stored in temporary RAM storage are fixed

Although we think we have a good understanding of what it means to be fixed, there are some edge cases where the lines get blurredFor example…Wildflower Works by Chapman Kelley in Grant Park in Chicago

What do we do about this?Jeff Koons — Puppy?

CC BY 2.0 Flickr: Janderson.L

What about this?

CC BY 2.0 Flickr: Horia Varlan

CC BY 2.0 Flickr: M4D GROUP

“Stack Of Books” CC BY 2.0 Flickr: indi.ca

Copyright protects...Books, Fine Art, Music, MoviesBut ultimately, format does not matterIf Original and Fixed, then protected by copyright

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Rights of Copyright Ownership

© 2017 by Greg Cram

If you’ve created something protected by copyright law, then you get a set of rightsGoing to focus on what you get

Exclusive Monopoly

Rights

Copyright is a set of exclusive monopoly rights

Bundle of rightsRight to do something, and prevent others from doing something

CC BY 2.0 Michael Pereckas

create copies

Create derivatives

CC BY NC 2.0 musicFIRSTcoalition

distribute copies

CC BY NC 2.0 Marques Stewart

publicly display/perform

Copyright Rights: 1. Make copies 2. Make derivative works 3. Distribute copies 4. Publicly perform 5. Publicly display

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Copyright Ownership

© 2017 by Greg Cram

Go back to this…This statement is telling you that I am the owner of the copyright in the work this statement is attached toSpend a few minutes talking about copyright ownership

CC BY 2.0 Flickr: Ana Carina Lauriano

Start with two examplesVincent van Gogh hanging at Museum of Modern Art in New YorkDoes MOMA own the copyright now that it owns the painting?Nope — Physical ownership does not equal copyright ownership

[Mary Pickford]Actress and one of the founders of the Motion Picture AcademyShe’s writing a letterDoes she own the copyright or does the receiver?She does because copyright in a work vests initially in the author or authors of the work

© 2017 by Mary Pickford

She is the copyright owner in the work

+Music in Film

By Mary Pickford

and John Philip Sousa

Civilization, I apprehend, is nearly synonymous with order. However much we may differ touching such matters as the distribution of property, the domestic relations, the law of inheritance and the like, most of us, I should suppose, would agree that without order civilization, as we understand it, cannot exist. Now, although the optimist contends that, since man cannot foresee the future, worry about the future is futile, and that everything, in the best possible of worlds, is inevitably for the best, I think it clear that within recent years an uneasy suspicion has come into being that the principle of authority has been

Mary Pickford and John Philip Sousa write a book together called “Music in Film”“There have been times when we've woven our thoughts from paragraph to paragraph, sentence to sentence, word to word, so tightly that even we don't know who wrote what anymore.”

+Music in Film

By Mary Pickford

and John Philip Sousa

Civilization, I apprehend, is nearly synonymous with order. However much we may differ touching such matters as the distribution of property, the domestic relations, the law of inheritance and the like, most of us, I should suppose, would agree that without order civilization, as we understand it, cannot exist. Now, although the optimist contends that, since man cannot foresee the future, worry about the future is futile, and that everything, in the best possible of worlds, is inevitably for the best, I think it clear that within recent years an uneasy suspicion has come into being that the principle of authority has been

In this situation, the book would be a “joint work” which is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.Each can license the whole work in a non-exclusive way

© 2017 by Mary Pickford and John Philip Sousa

Both are authors in the same work

TravelingBy

Rahul Alvares

Ashok’s shop is not very large. It is a two-roomed shop on the ground floor of the Gomes Catao complex. It has a display section in front and a store room at the back. The showroom has about twenty fish tanks on display with a variety of fish that Ashok purchases mainly from Mumbai. Each tank stores a particular species of fish. Ashok’s shop is located away from the main market area so he does not have the advantage of casual customers dropping by. However Ashok has his regular customers and there are always at least twenty to thirty customers daily.

Film LifeBy

Mary Pickford

Civilization, I apprehend, is nearly synonymous with order. However much we may differ touching such matters as the distribution of property, the domestic relations, the law of inheritance and the like, most of us, I should suppose, would agree that without order civilization, as we understand it, cannot exist. Now, although the optimist contends that, since man cannot foresee the future, worry about the future is futile, and that everything, in the best possible of worlds, is inevitably for the best, I think it clear that within recent years an uneasy suspicion has come into being that the principle of authority has been

Marching AlongBy

John Philip Sousa

You must try to understand that when I finished school I was as raw as raw could be. I had never travelled anywhere on my own, never purchased a train ticket, since like most kids my age I had only travelled with my parents or relatives and they made all the decisions. I had no experience of how to handle money (my knowledge being limited to spending the 50 paise or one rupee I would receive as pocket money now and then).

So while I had set my sights on travelling far and wide

The Cutting Edge: Collected Works

of Today’s LeadersArranged

By Thomas Billings

What if we have multiple authors who are contributing articles in a book?Not intention to merge into inseparable parts?

Then we have a collective work where each author retains their copyright in their individual works

TravelingBy

Rahul Alvares

Ashok’s shop is not very large. It is a two-roomed shop on the ground floor of the Gomes Catao complex. It has a display section in front and a store room at the back. The showroom has about twenty fish tanks on display with a variety of fish that Ashok purchases mainly from Mumbai. Each tank stores a particular species of fish. Ashok’s shop is located away from the main market area so he does not have the advantage of casual customers dropping by. However Ashok has his regular customers and there are always at least twenty to thirty customers daily.

Film LifeBy

Mary Pickford

Civilization, I apprehend, is nearly synonymous with order. However much we may differ touching such matters as the distribution of property, the domestic relations, the law of inheritance and the like, most of us, I should suppose, would agree that without order civilization, as we understand it, cannot exist. Now, although the optimist contends that, since man cannot foresee the future, worry about the future is futile, and that everything, in the best possible of worlds, is inevitably for the best, I think it clear that within recent years an uneasy suspicion has come into being that the principle of authority has been

Marching AlongBy

John Philip Sousa

You must try to understand that when I finished school I was as raw as raw could be. I had never travelled anywhere on my own, never purchased a train ticket, since like most kids my age I had only travelled with my parents or relatives and they made all the decisions. I had no experience of how to handle money (my knowledge being limited to spending the 50 paise or one rupee I would receive as pocket money now and then).

So while I had set my sights on travelling far and wide

The Cutting Edge: Collected Works

of Today’s LeadersArranged

By Thomas Billings

© 2017 by Mary Pickford

© 2017 by John Sousa

© 2017 by Rahul Alvares

© 2017 by Thomas Billings

Each would own their own works contributed to the collective—And the compiler gets a copyright in the compilation

If Mary is writing a memo on behalf of her company, then we’re dealing with a work made for hireWorks prepared in the course of employment or works are works made for hireThe initial owner of the copyright in this situation is not MaryInstead, it’s…

Her employerIn work-for-hire, employer is author and copyright owner

© 2017 by Acme Co.

Employer is rights owner

Who else can own a copyright?

If the author gets the copyright at the beginning, then who else can own a copyright?

The heirsCopyright can be transferredBy means of conveyanceor operation of law

Even to institutions/companies

© 2017 by The New York Public Library

Copyright ownership can be assigned to others

=

IP can be transferred just like personal propertyAssignments need to be in writing and signed to be effective

We should note that many of the items in our collections may have more than one copyrighted work embodied in the object Adding slightly more complexity, copyrights can be layered in worksFor example, in music, there are usually at least two copyrights involvedFirst is the sound recording, second is the music underlying the performance[Some Nights - Fun]

Films are even more complexCan have lots of layers of rights

Even books with illustrations can have layers of rights

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Remedies for infringement

Remedies• Actual Damages • Statutory Damages

CC BY-NC 2.0 - flickr: rbbaird

Statutory Damages• $750 to $30k per work infringed • $150k per work infringed if willful • $200 minimum for “innocent

infringers” • $0 for library/archives if reasonable

belief use was fair use

Willful: intentional disregard of a known legal duty, Or acting with knowledge or with reckless disregardMore on this $0 for libraries and archives later

Remedies• Actual Damages • Statutory Damages • Injunction • Attorney’s Fees

Injunction - stopAttorney’s Fees - at discretion of court

CC BY-NC 2.0 - flickr: rbbaird

Let’s stop for a second on damages and think about riskFor cultural heritage institutions thinking about risk, there are a few questions to ask:Was work previously commercially exploited? Is there a potential market for the work now? Is the work associated with an individual or organization that might have a financial, reputational, or competitive interest in restricting access or reuse?Actual damages: risk exposure is likely to be low in many casesProfits: think about all that money that you and DPLA are making off of your collections! …oh, right. ——-If registered, then second option—statutory damagesUp to 30k per work infringed, and in worst case, 150k per work infringedShould note that if a library, archives or educational institution infringes but had a reasonable belief that their use was a fair use, then judge can decide no damages

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Recent scholarship on the number of copyright lawsuits brought against libraries and archivesIn last 5 years, 1,153 cases filed involving a defendant with a variation of “library” or “archives” in its nameOnly 13 (around 1%) of those suits were designated as copyright infringement lawsuits.

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IN COPYRIGHT WORKS

When do we expect to use this?For us, two situations1 - NYPL owns the rights2 - We have worked out a license (more on that after the break) from the rightsholder but we were not able to secure a license that would fit in the other categories

Artwork by: Astra Wijaya

@GregCram