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Technology Transfer Seminar Series

-All About Copyrights-

Karen Hersey

Senior Counsel for Intellectual Property, MIT. Ret.Adjunct Professor of Law, Franklin Pierce Law Center

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History of U.S. Copyright (briefly)

Copyright is federal, not state, law – Began with the Copyright Act of 1790– Current statutory law found in the Copyright Act of

1976 (Title 17 USC with an effective date of January 1, 1978)

Changed from time to time by Congress/treaties – Berne Convention, U.S. became a member, 1989 (removed

requirement to publish with a copyright notice ©)– 1998 Amendments (extended term of copyright, established new

penalties for certain activities incl. removing copyright management)

Also subject to over 200 yrs of interpretive case law

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What is Copyrightable

Must be a “an original work of authorship” - very low threshold of true originality to be a work of authorship; also, must be fixed in a tangible form of medium (print, digital, sound recording, video, CD-Rom)

What’s Originality?– The work must have “originated” with the author

What’s meant by “fixed”?– Computer program is fixed, type is fixed, recorded sound is fixed,

video-taped performance is fixed, work of art is fixed, musical score is fixed

– Not fixed – oral lecture not recorded, live speech not recorded (“I Have a Dream”); anything that is ephemeral - transitory

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What is Copyrightable

Copyright is different from plagiarism –

“plagiarism” is an appropriation of someone else’s work and passing it off as yours – a tort. You can plagiarize without infringing a copyright

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What is Copyrightable . . . . . . and What’s Not

Copyrightable– Literary works– Musical works (score and lyrics)– Pictorial/graphic works, photographs, art,

sculpture– Audiovisual works, motion pictures– Computer software, video games

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What is Copyrightable . . . . . . and What’s Not

Not Copyrightable– Ideas and concepts

– Lists showing no originality or authorship (phone book)

– Factual Material (raw data, database content)

– Titles, short phrases, logos

– Public Domain Information• Copyright term expired (©1922 and before)

• Work of U.S. Government employees

• Never copyrighted (published in the U.S. prior to 1/1/89 without copyright notice)

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Copyright Protects a Bundle of Five Exclusive Rights

The Right to Reproduce (make one/more copies) The Right to Prepare a Derivative Work (modify,

translate, abridge, digitize) The Right to Disseminate (one copy) The Right to Display Publicly The Right to Perform Publicly Plus, recently, for sound recordings, right to

record digitally

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So, Who Owns the Copyright?

Presumption that person authoring the work owns it unless the work is considered a work for hire in which case the employer is considered the author:– A work made for hire is one prepared by employee

within the scope of employment; or– It is a specially commissioned work, and there is a

signed agreement specifying work for hire and the work falls in one of 9 categories such as:

• A contribution to a collective work or compilation• Part of a motion Picture/audio visual work• Translation• Supplementary work (maps, indexes, instructional text)

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Who Owns Copyrights at Brandeis?

The “Brandeis Presumptions” (2004 IP policy) – “Creator” owned unless:

• Conceived, discovered, reduced to practice– Funded as part of a sponsored research agreement

– Creator assigned, directed etc. to develop IP and Creator agrees that Brandies will own (in writing)

– Developed by employees within scope of employment

– Developed with use of University resources exceeding normal use for employment duties under agreement that university owns

» Examples: web-based course and multi-media materials developed with university funding or use of specialized computers

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Term of Copyright (how long is it?)

If the Author(s) own the copyright– Life of the Author plus 70 years

If the Employer owns the work as a work for hire only – not by assignment– 95 years from date of first publication or 120

years from the date of creation, whichever expires first

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A Word about “Jointly-Authored” Works

A jointly-authored work will have two or more authors who intend for their “work” to be merged into a single work.

Each owns an undivided interest in the whole The term if author-owned (not wfh) depends on

the life of the last to survive author There is an obligation to account to the other

author for 50% of proceeds unless a written agreement to the contrary

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Mechanics of Copyright

Bottom line: Nothing Required – must only qualify as a copyrightable work under law

© not required after 3/1/1989 Copyright holder may register 2 copies of work

w/Registrar of Copyright in DC and then: – Copyright holder can sue others for

infringement– Copyright holder can get court costs, statutory

damages etc.

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Exceptions to the Copyright Monopoly for Faculty and Students Most Commonly-used:

– Library exemption permits one copy to be made in the library by librarian for patron, but copying cannot be systematic

– Permits individuals to make a copy in the library

– Library reserves (electronic is controversial)– Classroom face-to-face teaching. Cannot be

systematic (one term only) and cannot be used for distance delivery (outside the classroom)

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The Fair Use Exception to the Copyright Monopoly Fair Use for criticism, commentary, news

reporting, education and research, home use, BUT subject to 4 factor test:– Is the use commercial vs. non-profit use – Number and kind of materials copied– Amount/kind of material copied relative to the

whole – Effect on copyright holder’s market

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How Far Does Fair Use Take Us in Using Copyrighted Materials?

Print to Print – To reproduce print materials in print

apply 4-Factor test. Greatest weight given to non-profit use. If use changes to for-profit use (commercial publication) the

academic safe harbor changes.

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How Far Does Fair Use Take Us in Using Copyrighted Materials?

Print to Electronic– For use of print materials that you scan (you

have derivatized) and wish to have used electronically, greater limitations are advised due to use of electronic media. Take precautions to:

• limit number of copies a user makes, amount of text copied, who has access (control by password)

• how the materials are used, how long the materials available – shorter time is better

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How Far Does Fair Use Take Us in Using Copyrighted Materials?

Electronic to Print– Use 4-Factor Test

• Make sure copyright notices are reproduced on copies.

• A print copy of an entire electronic article may not be permitted. Check the site.

• how the materials are used, how long the materials are available via a website (the shorter the better)

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How Far Does Fair Use Take Us in Using Copyrighted Materials?

Electronic to Electronic– Try using the 4-Factor test with safeguards on

access (password controlled); ensure copyright notices appear, watch amount of text copied, remind users not to send electronic copies to friends.

– The electronic product you are accessing may be subject to a license that eliminates fair use if it says “no copies” or limits users.

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Navigating the Fair Use Waters

For scholarly articles– Excerpting short paragraphs, single images,

charts, grafts, quotes all OK under fair use with attribution regardless of media

Coursepacks– Use 4-Factor test. Will probably fail due to

number of copies, amount of material copied, effect on market. Get permission – pay fees

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Navigating the Fair Use Waters

Instructional materials and course readings– Use 4-Factor test if non-commercial. If commercial purpose, get

permission. Requiring course readings via electronic access can be a problem

Multi-media Materials

– Use 4-Factor test, but there may be different copyrights in a multi-media work. Examples or separate copyrights

• Text, Images, Sound, Software – copyright holders may be different

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Two New Laws That Make a Difference Posting Teaching Materials on Your Website

– Subject to the Digital Millennium Copyright Act (2000)• Faculty, not university bear liability (unless faculty has too

many infractions)• No safe harbor . . . must abide by fair use limitations

Distance Learning– TEACH Act (2002)

• OK to post copyrighted materials for mediated distance education with restrictions

– May not use educational materials published for distance learning

– Solely for enrolled students w/restrictive mechanisms in place– Time-limited take down – at end of course

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What if I infringe? Will I Be Sued?

Copyright holder can get an injunction to stop your infringing activity

Copyright holder can get damages i.e. you pay for copyright holder’s lost sales

Copyright holder can get your profits Statutory damages from $750 to $30,000. Judge

can award up to $150,000 for willful infringement And, there are criminal penalties, too

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Licensing Copyrights in the University: What’s Important Major issue: Who owns the Work?

– If Faculty own . . . . University needs a license• Issues for faculty-university licensing

– Scope of rights granted . . . Exclusive/non-exclusive– Rights of attribution of authorship and rights of revision– Retained rights of faculty to use for non-competing purposes– Some representation or warranty of originality– Indemnity from faculty if work is infringing

– If University owns as WFH or by assignment required by policy• University has all rights• University has of the liability• Should consider retained rights of faculty• Shares revenues with faculty authors

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So, You or Brandeis Want to Get Into the Electronic Course Delivery Game? Bumps on the road to riches you need to think about

– Do you own all the content you are delivering?– Are you using student contributions?– Do you have permission to use 3rd party owned materials: Test,

images, film clips – fair use is limited or not available for the electronic marketplace

– Problems with content as defamatory, libelous, how-to instructions, violation of rights of publicity etc.

– Is there a COI policy that prohibits competing activities– And, statutes that both you and Brandeis need to be wary of:

• DMCA and TEACH Act

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Useful Fair Use Websites

U. Texas: http://www3utsystem.edu/ogc/IntellectualProperty/cprtindx.htm

Association of Research Librarieshttp://arl.cni.org/

Stanford: http://fairuse.stanford.edu/ U.S. Copyright Office:

http://lcweb.loc.gov/copyright/