Copyright in Academia

Nickoal Eichmann| History Research Librarian | neichmann@library.msstate.edu

@msu_libraries @_nickoal_

#copyright

● To empower you to feel confident in your choices when navigating Copyright and Fair Use issues byo understanding the purpose of Copyrighto knowing when situations fall under Fair Useo remembering you have copyrights of your

own

Goals for today

I am not a lawyer

Purpose of Copyright● To ensure that authors are paid● To promote learning and the

dissemination of knowledge● To manage the financial interests of

rights holders● To ensure that the heirs of rights

holders can continue to benefit from creative works

What Copyright Protects...

Copyright protects:

● Writing

● Choreography

● Music

● Visual art

● Film

● Architectural works

Doesn’t protect…

● Ideas

● Facts

● Titles

● Data

● Patents

Copyright 101● Protection is automatic once a work is

fixed

● Very little creative originality is necessary

● Registration is not necessary

Who is the Copyright Holder?●The creator is usually the copyright

holder.

●If two or more people create a work, they are joint copyright holders, with equal rights.

●With some exceptions, work created as a part of a person's employment is a "work made for hire" and the copyright belongs to the employer.

Copyright is a bundle of rights (§ 106) :

● The right to reproduce the work● The right to distribute the work● The right to prepare derivative works● The right to perform the work● The right to display the work● The right to license the above to third parties

Length of Copyrights ● The bundle of copyrights lasts a long

time:● Life of the author plus 70 years● Joint works: 70 years after death of last

author● For works for hire or anonymous works,

95 years from publication or 120 years from creation, whichever expires first.

Public Domain• Works for which copyright license has

expired or copyright doesn’t apply• Works from authors who died before

1945• Works published in before 1923

Copyright Term & Public Domain (Hirtle) :http://copyright.cornell.edu/resources/publicdomain.cfm

Benefits of Copyright● Benefits the public by making creative

works available

● Understands that creators stand on the shoulder of giants

● Creates economic markets for works

● Is flexible

● Loves non-profit libraries and schools

Fair Use

Fair Use

● §107, codified with Copyright Act of 1976

● Determined on a case by case basis

● Requires one to think and make a judgment

● You may never know for sure that a use of a copyright is fair or not

Your Liability● Unlikely that an academic would be

taken to court, but still could happen

● § 504(c)(2) limits statutory damages for alleged infringers who work at a non-profit, educational institutions

● 11th Amendment : State/state agencies can’t be sued for dollar damages by the federal government

Measuring Fair Use

1.Purpose and Character of use o Why do you want to use a copyright?

o Is the original work being transformed by adding new expression or meaning?

o Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Purpose & Character of Use

Measuring Fair Use

2. Nature of Publicationo What is the material that you’re using?

o Is it Factual or Fictional?

o Published or Unpublished?

Measuring Fair Use

3. Amount & Substantiality of Portion Taken

o Amount: Less is more (except in parody)

Usually 10% rule

o Substantiality: Heart of a work or peripheral?

Ex: Gerald Ford Memoir in Harper & Row v. Nation (1985)

Measuring Fair Use

4. Effect of Use on the Potential Marketo Does your use deprive the copyright owner of

income?

o Does it undermine a new or potential market for the copyrighted work?

Copyright Exceptions

Copyright Exceptions● § 108 : allows libraries and archivists to

make copies for library users, interlibrary loan, replacement and preservation

● § 109 : allows owners of locally acquired copies the right to distribute that copy (library lending, used book stores, garage sales, etc.)

Copyright Exceptions● § 110 : allows teachers to display or

perform works in the face-to-face classroom and in the digital or distance education classroom via digital networks

● § 117 : owner of a software program can make a backup copy

● § 121 : allows for the making of accessible copies for people with disabilities

These exceptions don’t address every situation

These exceptions are not the final word

Consider Fair Use

Real Life Scenarios

Scenarios

Q: If I find it on the web, it’s free to use, right?

Scenarios

Q: If I find it on the web, it’s free to use, right?

No. All of the copyright concepts apply to electronic and printed materials. Remember that it is not necessary to post a copyright notice for the author to have rights, even on the web.

ScenariosQ: An instructor wants to give a class a copy of the Canterbury Tales to use for class. Will that break copyright?

ScenariosQ: An instructor wants to give a class a copy of the Canterbury Tales to use for class. Will that break copyright?

A: Depends on annotations and new copyright. The actual Canterbury Tales is in the Public Doman, but you need to be careful of any editions/ translations and such.

ScenariosQ: You want to use a YouTube copy of a TV show that was not uploaded by the studio. Naturally you will not use a bootleg DVD, but you do want to use this YouTube video.

ScenariosQ: You want to use a YouTube copy of a TV show that was not uploaded by the studio. Naturally you will not use a bootleg DVD, but you do want to use this YouTube video.

A: Buy the video. If that is not a possibility, you can use the video in class, but do not post it online. This would fall under fair use.

ScenariosQ: Can I share a journal article with my students that is not licensed by the MSU Libraries?

ScenariosQ: Can I share a journal article with my students that is not licensed by the MSU Libraries?

A: It depends. Yes, if: It’s Open Access has a CC license it’s in the Public

Domain it’s Fair Use it’s on reserve

ScenariosQ: Can professors download Web images for their PowerPoint presentations without worrying about breaking the law?

ScenariosQ: Can professors download Web images for their PowerPoint presentations without worrying about breaking the law?

A: Yes, they can. Section 110(1) of the copyright law allows teachers and pupils to make copies for public display in the classroom for teaching purposes. The images must be used strictly for nonprofit, educational purposes in the face-to-face classroom.

ScenariosQ: Is it fine to show a portion of a video labeled for "Home Use Only" in the classroom?

ScenariosQ: Is it fine to show a portion of a video labeled for "Home Use Only" in the classroom?

A: "The following [is not an] infringement of copyright: performance or display of a work by instructors or pupils in the course of face-to-face teaching activities…" (§ 110[1], Title 17).

Authors RightsCopyright in Academia

@msu_libraries @_nickoal_ #copyright

Goals for this session:● Think through possible future uses of your

creative works

● Understand the limitations imposed by publishing contracts

● Learn how to approach negotiating your rights

One Rule to Remember :

you own what you create.

Your Copyrights

● Protection is automatic once a work is fixed

● Very little creative originality is necessary

● Registration is not necessary

Who is an Author?● 3 scholars who do joint research and each

write a section of an article.● A book author and her editor.● A university librarian who writes a report for a

library association and is paid $1500.● The PI whose name is listed on a published

article but who wrote no part of it.

Who is the Copyright Holder?●The creator is usually the copyright holder. ●If two or more people jointly create a work,

they are joint copyright holders, with equal rights.

●With some exceptions, work created as a part of a person's employment is a "work made for hire" and the copyright belongs to the employer.

Uses of Your Published Works

What you might do with your works...

● Share with colleagues or practitioners

● Make it available to public (or be required to under an institutional or funder policy)

● Use parts of it yourself, in future work (including a dissertation)

● Prepare a textbook or other collected volume of your work

Copyright is a bundle of rights :

● The right to reproduce the work● The right to distribute the work● The right to prepare derivative works● The right to perform the work● The right to display the work● The right to license the above to third parties

Publishing Agreements

● In order to publish your work, publishers need from you the right to publish your work.

● Usually publishers ask you to transfer your copyright to them.

The work belongs to you until you give your copyrights away

Publishing Agreements

● Copyright can be transferred only in writing

● Rights publishers traditionally want:o Reproduction, distribution, derivatives… everything!

● Rights publishers actually need:o Right of first publication…that’s it, really.

Rights of Copyright Holder

Sample :

3. Copyright Transfer. In consideration of the action of the American Medical Association (AMA) in reviewing and editing this submission (manuscript, tables, and figures), I hereby transfer, assign, or otherwise convey all copyright ownership, including any and all rights incidental thereto, exclusively to the AMA, in the event that such work is published by the AMA.

All or Nothing?● Understand what you want!

● Read the contract carefully.

● Contact the publisher about changes

● Amend the contract

● Save your contract!

Amendments

● Specific rights can be bundled or unbundled by licenses (e.g., Creative Commons) or addenda (e.g., SPARC) or negotiation

Addendum

Addendum Engine

If Publisher Still Says “No”● Consider publishing your work elsewhere

where you can retain the rights you want.o FYI: Open Access publishers usually do not require

full transfer of copyright

● Publish your work as planned with the original publisher.

The decision is entirely up to you

“If...then” : Secrets of ReuseBy the author● If full rights retained, then limitless (within

confines of law, that is)● If some rights retained, then within limits of

negotiated rights● If no rights retained, then fair use only

“If...then” : Secrets of ReuseBy others● If published open access, then freely

accessible – and possibly more● If published under a Creative Commons

license, then within limits defined by the license● If published traditionally, then fair use only

Take Aways

● We all own copyright until we sign it away

● Contracts are negotiable, including publishing contracts

● Think ahead to how you might want to use your work

● Experimentation via CC licenses, attaching addenda or negotiating isn’t scary and doesn’t negate peer-review prestige

Thank you!

Adapted from ALATechSource | Carrie Russell’s “Copyright for K-12 Librarians & Educators” (2013), materials provided by Rachel Cannady, Scholarly Resources Librarian at UTSA, Molly Keener’s ACRL “Copyright 101”, Sarah Shreeves’ “Author Rights : Securing Future Uses of Your Work” and Micah Vandegrift’s “Introduction to Author’s Rights”.