kenneth d. crews, j.d., ph.d. · zthe media center has a collection of art slides. zthe viewers and...

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Copyright and the Academy:Copyright and the Academy:Education, Libraries, and the LawEducation, Libraries, and the Law

South Seattle CCSeattle, Washington

November 5, 2010

Kenneth D. Crews, J.D., Ph.D.

Director, Copyright Advisory OfficeColumbia University Libraries

Columbia Law Schoolwww.copyright.columbia.edu

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Why is Copyright Important?Why is Copyright Important?

Broad Broad ScopeScope of Protected Worksof Protected WorksEase of Ease of Creating and UsingCreating and UsingCopyrighted WorksCopyrighted WorksChangingChanging LawLaw–– New LegislationNew Legislation–– Developments in the CourtsDevelopments in the Courts

Role of University Role of University PolicyPolicyIt is all about It is all about YouYou!!

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TodayToday’’s Questions Question

Dear Copyright Dude:Dear Copyright Dude:A friend of mine has a copyright A friend of mine has a copyright problemproblem……..The media center has a collection of art The media center has a collection of art slides.slides.The viewers and projectors are failing.The viewers and projectors are failing.Digital is the present and the future.Digital is the present and the future.Digital makes life better.Digital makes life better.OK to digitize our collection of images?OK to digitize our collection of images?

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That DependsThat Depends……..

What are the images?What are the images?Who owns them?Who owns them?How are you going to use them?How are you going to use them?How many copies?How many copies?How will they be accessed?How will they be accessed?Are they available on the market?Are they available on the market?

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Why is Copyright Like a Mountain?Why is Copyright Like a Mountain?

Educator IssuesEducator Issues–– PhotocopyingPhotocopying–– WebsitesWebsites–– Distance LearningDistance Learning

Research IssuesResearch Issues–– Data Compilation and StorageData Compilation and Storage–– PublishingPublishing–– Building New KnowledgeBuilding New Knowledge–– Digital RepositoriesDigital Repositories

Library & Research IssuesLibrary & Research Issues–– ILL and Research CopiesILL and Research Copies–– Print and Electronic ReservesPrint and Electronic Reserves–– Data Access and LicensingData Access and Licensing

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Back to thinking about YOUBack to thinking about YOU……..–– Are you the author?Are you the author?–– Do you hold the copyright?Do you hold the copyright?–– Will you sign the agreement?Will you sign the agreement?–– What are the limits of Fair Use?What are the limits of Fair Use?–– Are you subject to a policy?Are you subject to a policy?–– What choices do you have?What choices do you have?

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……Or Caring about Others?Or Caring about Others?–– Who holds the copyright?Who holds the copyright?–– What does the owner want?What does the owner want?–– Is permission reasonable?Is permission reasonable?–– Does fair use make sense?Does fair use make sense?

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Eligibility for Copyright Protection Eligibility for Copyright Protection Go!Go!

Securing Copyright Protection/Formalities Securing Copyright Protection/Formalities Go!Go!

Ownership of Copyright Ownership of Copyright Go!Go!

Rights of the Copyright Owner Rights of the Copyright Owner Go!Go!

Duration of Copyrights Duration of Copyrights Go!Go!

Exceptions to the Rights of Owners Exceptions to the Rights of Owners Go!Go!

The Big Picture:Structure of the Law of Copyright

The Big Picture:The Big Picture:Structure of the Law of CopyrightStructure of the Law of Copyright

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Beginning the Copyright TrailBeginning the Copyright Trail

Eligibility for Protection:Eligibility for Protection:–– Original Works of AuthorshipOriginal Works of Authorship–– Fixed in a Tangible Medium of ExpressionFixed in a Tangible Medium of Expression

Securing ProtectionSecuring Protection–– Automatic ProtectionAutomatic Protection–– No Requirement of FormalitiesNo Requirement of Formalities–– Formalities Yield Some Legal BenefitsFormalities Yield Some Legal Benefits

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Works Produced byWorks Produced by–– Officers and EmployeesOfficers and Employees–– Stamps? Smithsonian??Stamps? Smithsonian??

Take a Look:Take a Look:Smithsonian Special Collection:Smithsonian Special Collection:http://www.arago.si.edu/flash/?s1=6|eid=182http://www.arago.si.edu/flash/?s1=6|eid=182SI copyright Policies:SI copyright Policies:http://www.arago.si.edu/about.htmlhttp://www.arago.si.edu/about.htmlhttp://www.si.edu/copyright/http://www.si.edu/copyright/

U.S. Government WorksU.S. Government Works

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Ownership of the CopyrightOwnership of the Copyright

Creator of the Original WorkCreator of the Original WorkTransfers of CopyrightTransfers of Copyright–– Required FormalitiesRequired Formalities–– Termination of TransfersTermination of Transfers

Work Made for HireWork Made for Hire–– Version 1: Employee/Scope of Version 1: Employee/Scope of

EmploymentEmployment–– Version 2: Independent ContractorVersion 2: Independent Contractor

Signed WritingSigned WritingSpecified List of WorksSpecified List of Works

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Rights of the Copyright OwnerRights of the Copyright OwnerRights of the Copyright Owner

Fundamental RightsFundamental Rights–– ReproductionReproduction

–– DistributionDistribution

–– Derivative WorksDerivative Works

–– Public Performance and DisplayPublic Performance and Display

Recent AdditionsRecent Additions–– Moral Rights (Moral Rights (§§106A)106A)

–– Digital Transmissions of Sound RecordingsDigital Transmissions of Sound Recordings

–– DMCA ProvisionsDMCA Provisions

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Duration of Copyright ProtectionDuration of Copyright ProtectionDuration of Copyright Protection

Works Created During or After 1978Works Created During or After 1978–– Life of Author Plus 70 YearsLife of Author Plus 70 Years–– WorkWork--ForFor--Hire: 95 Years from PublicationHire: 95 Years from Publication

120 Years from Creation120 Years from CreationWorks Published Before 1978Works Published Before 1978–– Generally Maximum of 95 Years/Since 1923Generally Maximum of 95 Years/Since 1923–– Possibly Short Term If No Notice or RenewalPossibly Short Term If No Notice or Renewal–– Foreign Copyrights May Be RestoredForeign Copyrights May Be Restored

Works Created But Not Published Before Works Created But Not Published Before 19781978–– Life of the Author Plus 70 YearsLife of the Author Plus 70 Years–– Effective Starting Jan 1, 2003!Effective Starting Jan 1, 2003!

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Exceptions to the Rights ofCopyright Owners

Exceptions to the Rights ofExceptions to the Rights ofCopyright OwnersCopyright Owners

Section 107: Fair UseSection 107: Fair UseSection 108: Library CopyingSection 108: Library CopyingSection 109: FirstSection 109: First--Sale DoctrineSale DoctrineSection 110: Displays and PerformancesSection 110: Displays and PerformancesSection 114: Transmissions of Sound Section 114: Transmissions of Sound RecordingsRecordingsSection 120: Architectural WorksSection 120: Architectural WorksSection 121: Persons with DisabilitiesSection 121: Persons with Disabilities

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What Are the Rights to UseCopyrighted Works?

What Are the Rights to UseWhat Are the Rights to UseCopyrighted Works?Copyrighted Works?

Section 107: Fair UseSection 107: Fair Use–– PurposePurpose of the Useof the Use

––Education vs. CommercialEducation vs. Commercial––TransformativeTransformative

–– NatureNature of the Work Usedof the Work Used–– AmountAmount UsedUsed–– EffectEffect of the Use on Market or Valueof the Use on Market or Value

Our Story Begins in a Quaint VillageOur Story Begins in a Quaint Village……..

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Fair Use:Reality Check from the Courts

Fair Use:Fair Use:Reality Check from the CourtsReality Check from the Courts

Basic Books v. KinkoBasic Books v. Kinko’’s Copies (1991)s Copies (1991)–– Purpose: Purpose:

Commercial/NonTransformativeCommercial/NonTransformative–– Nature: Nonfiction book chaptersNature: Nonfiction book chapters–– Amount: 5% to 25%Amount: 5% to 25%–– Effect: Displaces sales of textbooksEffect: Displaces sales of textbooks

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American Geophysical Union v. TexacoAmerican Geophysical Union v. Texaco–– Purpose: CommercialPurpose: Commercial–– Nature: Nonfiction Science ArticlesNature: Nonfiction Science Articles–– Amount: Entire ArticleAmount: Entire Article–– Effect: Displaced Licensing MarketEffect: Displaced Licensing Market

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Sundeman v. The Seajay Society (1998)Sundeman v. The Seajay Society (1998)–– Purpose: Scholarly and Purpose: Scholarly and

““TransformativeTransformative””–– Nature: Unpublished manuscriptNature: Unpublished manuscript–– Amount: Consistent with scholarly Amount: Consistent with scholarly

needsneeds–– Effect: May actually help marketEffect: May actually help market

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Bill Graham v. DK Publishing (2006)Bill Graham v. DK Publishing (2006)–– Purpose: Scholarly and Purpose: Scholarly and

““TransformativeTransformative””–– Good!Good!

–– Nature: Art, but historically importantNature: Art, but historically important–– Bad! Wait, Maybe GOOD!Bad! Wait, Maybe GOOD!

–– Amount: Amount: ““ThumbnailThumbnail””–– Good!Good!

–– Effect: May help market; does not Effect: May help market; does not competecompete

–– Good!Good!

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A.V. v. iParadigms, LLC (E.D. Va. 2008)A.V. v. iParadigms, LLC (E.D. Va. 2008)–– Purpose: Transformative, but also Purpose: Transformative, but also

Commercial & Socially BeneficialCommercial & Socially Beneficial–– Nature: Protects Creativity!Nature: Protects Creativity!–– Amount: Entire Work, but for a good Amount: Entire Work, but for a good

purposepurpose–– Effect: No Market HarmEffect: No Market Harm



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Electronic Reserves:An Example ApproachElectronic Reserves:Electronic Reserves:

An Example ApproachAn Example Approach

Words of Words of Caution and ContextCaution and Context–– Fair Use is never certainFair Use is never certain–– Fair Use is FlexibleFair Use is Flexible–– Fair Use is for Your NeedsFair Use is for Your Needs–– Fair Use does not allow EverythingFair Use does not allow Everything–– Fair Use also does not require EverythingFair Use also does not require Everything

That SaidThat Said……Some Some Possible ElementsPossible Elements of of Electronic ReservesElectronic Reserves……..

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Purpose of the UsePurpose of the Use–– Serve educational needsServe educational needs–– At request of instructorAt request of instructor–– Password restrictionPassword restriction

Nature of the WorkNature of the Work–– Related to educational objectivesRelated to educational objectives–– Portion that serves educational needPortion that serves educational need–– Limited portions from creative worksLimited portions from creative works

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Amount of the WorkAmount of the Work–– Brief works or portions of longer worksBrief works or portions of longer works–– Portion that serves educational needPortion that serves educational need

Effect on Market for OriginalEffect on Market for Original–– Repeat use by same instructor/same Repeat use by same instructor/same

course??course??–– Copyright notice and citationCopyright notice and citation–– Password restrictionPassword restriction–– Lawfully obtained original in collectionLawfully obtained original in collection–– Do not compete with available coursepacksDo not compete with available coursepacks

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Section 108: Library CopyingSection 108: Library Copying–– Eligible LibrariesEligible Libraries–– PreservationPreservation–– Copying for Personal UsesCopying for Personal Uses–– Interlibrary LoansInterlibrary Loans

Section 109: First SaleSection 109: First Sale–– Sales, Rental, LendingSales, Rental, Lending–– Public DisplayPublic Display

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What Are the Rights to Use Copyrighted Works?

What Are the Rights to Use What Are the Rights to Use Copyrighted Works?Copyrighted Works?

Section 110(1)Section 110(1)–– Performances and DisplaysPerformances and Displays–– FaceFace--toto--Face TeachingFace Teaching

Section 110(2) (Section 110(2) (““The TEACH ActThe TEACH Act””))–– Distance LearningDistance Learning–– Performances and DisplaysPerformances and Displays–– Some Reproduction & DistributionSome Reproduction & Distribution

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How to Make Fair Use Decisions?How to Make Fair Use Decisions?How to Make Fair Use Decisions?

Courts: The Four FactorsCourts: The Four FactorsCitizens: Interpretation and RiskCitizens: Interpretation and RiskCommon Advice: Common Advice: ““GuidelinesGuidelines””Consequences if Fair Use: Good!Consequences if Fair Use: Good!Consequences if Infringement: Bad!Consequences if Infringement: Bad!

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The Fair Use QuadrilateralThe Fair Use QuadrilateralThe Fair Use Quadrilateral

RISKRISK GOOD FAITHGOOD FAITH

REASONREASON EXPERIENCEEXPERIENCE

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Kenneth D. Crews, J.D., Ph.DKenneth D. Crews, J.D., Ph.D.www.copyright.columbia.eduwww.copyright.columbia.edu

Sign Up:Sign Up: www.facebook.com/kennycrewswww.facebook.com/kennycrews

Follow:Follow: www.twitter.com/kcrewswww.twitter.com/kcrews

Thank You!Thank You!

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Postage Stamp Images:Postage Stamp Images:http://www.iomoon.com/rainier.htmlhttp://www.iomoon.com/rainier.htmlLewis & Clark Stamp:Lewis & Clark Stamp:http://www.rootsweb.ancestry.com/http://www.rootsweb.ancestry.com/


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Copyright and Libraries:Copyright and Libraries:Section 108 and MoreSection 108 and More

South Seattle CCSouth Seattle CCSeattle, WashingtonSeattle, Washington

November 5, 2010November 5, 2010

Kenneth D. Crews, J.D., Ph.D.Kenneth D. Crews, J.D., Ph.D.

Director, Copyright Advisory OfficeDirector, Copyright Advisory OfficeColumbia University LibrariesColumbia University Libraries

Columbia Law SchoolColumbia Law School

www.copyright.columbia.eduwww.copyright.columbia.edu

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Copyright Act, Section 108Copyright Act, Section 108Copyright Act, Section 108

““Ground RulesGround Rules””–– No commercial purposeNo commercial purpose–– Library open to outsidersLibrary open to outsiders–– Notice on copiesNotice on copies

Preservation CopyingPreservation CopyingCopies for Private StudyCopies for Private StudyCopies for ILLCopies for ILL

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Preservation of Unpublished WorksPreservation of Unpublished WorksPreservation of Unpublished Works

Permits 3 Permits 3 ““Copies or Copies or PhonorecordsPhonorecords””–– Master copyMaster copy–– Storage copyStorage copy–– Use copyUse copy

Solely for Preservation or DepositSolely for Preservation or DepositWork Must Currently be in the CollectionWork Must Currently be in the CollectionDigital Formats Allowed, but...Digital Formats Allowed, but...–– Not Not ““otherwise distributedotherwise distributed”” in that formatin that format–– Not publicly available Not publicly available ““outside the premisesoutside the premises””

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Preservation of Published WorksPreservation of Published WorksPreservation of Published Works

Permits 3 Permits 3 ““Copies or Copies or PhonorecordsPhonorecords””–– Master copyMaster copy–– Storage copyStorage copy–– Use copyUse copy

Solely for ReplacementSolely for Replacement–– Damaged, Deteriorating, Lost, StolenDamaged, Deteriorating, Lost, Stolen–– Format is ObsoleteFormat is Obsolete

No Unused Replacement at No Unused Replacement at ““Fair PriceFair Price””Digital Formats Allowed, but...Digital Formats Allowed, but...–– Not publicly available Not publicly available ““outside the premisesoutside the premises””

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Commission on New Technological Uses of Commission on New Technological Uses of Copyrighted Works (1979)Copyrighted Works (1979)Interpreting Interpreting §§ 108(g)(2)108(g)(2)–– Builds on rules for Builds on rules for ““Private StudyPrivate Study””–– Bar on Bar on ““systematicsystematic”” copyingcopying–– Allows ILL w/o Allows ILL w/o ““purpose or effectpurpose or effect”” that that

receiving library is substituting for purchase receiving library is substituting for purchase or subscriptionor subscription

Interlibrary Loans:The CONTU Guidelines

Interlibrary Loans:Interlibrary Loans:The CONTU GuidelinesThe CONTU Guidelines

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““Rule of 5sRule of 5s””

Not More Than 5 Copies Received in Not More Than 5 Copies Received in One YearOne YearFrom Single Journal TitleFrom Single Journal TitlePublished Within Last 5 YearsPublished Within Last 5 Years



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Do Not Address:Do Not Address:NonNon--journal Publicationsjournal PublicationsMaterials Older than 5 YearsMaterials Older than 5 Years

The Conference on Fair Use:The Conference on Fair Use:Also Failed to Address ILLAlso Failed to Address ILL



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Hitting the CeilingHitting the CeilingHitting the Ceiling

Do you need uses beyond Fair Use?Do you need uses beyond Fair Use?–– Multiple Copies?Multiple Copies?–– Whole Copies?Whole Copies?–– Online Delivery?Online Delivery?

Do you need more than Section 108?Do you need more than Section 108?–– Quantity limits on ILL?Quantity limits on ILL?–– Expansive preservation programs?Expansive preservation programs?

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Section 108 Study GroupSection 108 Study Group–– www.section108.govwww.section108.govProposals:Proposals:–– Preservation of WebsitesPreservation of Websites–– Expanded use of Expanded use of

TechnologiesTechnologies–– Wider Range of WorksWider Range of Works

Revisions to Section 108?Revisions to Section 108?

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Copyright and Distance Education:Copyright and Distance Education:Ownership and Rights of UseOwnership and Rights of Use







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What Are the Rights to Use Copyrighted Works?

What Are the Rights to Use What Are the Rights to Use Copyrighted Works?Copyrighted Works?

Section 110(1)Section 110(1)–– Performances and DisplaysPerformances and Displays–– FaceFace--toto--Face TeachingFace Teaching

Section 110(2): Section 110(2): The TEACH Act!The TEACH Act!–– Distance LearningDistance Learning–– Performances and DisplaysPerformances and Displays–– Some Reproduction & DistributionSome Reproduction & Distribution

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The TEACH Act: Policy RequirementsThe TEACH Act: Policy Requirements

Accredited Nonprofit Accredited Nonprofit EducatEducat’’ll InstitutionInstitutionDevelopment of Copyright PoliciesDevelopment of Copyright PoliciesCopyright Copyright ““Informational MaterialsInformational Materials””Notice to Students about CopyrightNotice to Students about CopyrightAccess Limited Access Limited ““SolelySolely”” to Enrolled to Enrolled StudentsStudents

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The TEACH Act: Technology The TEACH Act: Technology RequirementsRequirements

Technological Restrictions on Access Technological Restrictions on Access only for Enrolled Studentsonly for Enrolled StudentsTechnological Controls on DownloadingTechnological Controls on DownloadingTechnological Controls on Further Technological Controls on Further TransmissionTransmissionNo Interference with Technological No Interference with Technological Control Measures embedded on WorksControl Measures embedded on Works

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The TEACH Act: Content LimitsThe TEACH Act: Content Limits

Performances of Performances of nondramaticnondramatic literary worksliterary worksPerformances of Performances of nondramaticnondramatic musical worksmusical worksPerformances of any other work, including Performances of any other work, including dramatic works and audiovisual works, but dramatic works and audiovisual works, but only in only in ““reasonable and limited portionsreasonable and limited portions””Displays of any work Displays of any work ““in an amount in an amount comparable to that which is typically displayed comparable to that which is typically displayed in the course of a live classroom session.in the course of a live classroom session.””

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The TEACH Act: Prohibited MaterialsThe TEACH Act: Prohibited Materials

Works that are marketed Works that are marketed ““primarily for primarily for performance or display as part of mediated performance or display as part of mediated instructional activities transmitted via digital instructional activities transmitted via digital networksnetworks””Performances or displays given by means of Performances or displays given by means of copies copies ““not lawfully made and acquirednot lawfully made and acquired”” under under the U.S. Copyright Act, if the educational the U.S. Copyright Act, if the educational institution institution ““knew or had reason to believeknew or had reason to believe”” that that they were not lawfully made and acquiredthey were not lawfully made and acquired

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The TEACH Act: Additional ConditionsThe TEACH Act: Additional Conditions

The performance or display The performance or display ““is made by, at is made by, at the direction of, or under the actual the direction of, or under the actual supervision of an instructorsupervision of an instructor””The materials are transmitted The materials are transmitted ““as an integral as an integral part of a class session offered as a regular part of a class session offered as a regular part of the systematic, mediated instructional part of the systematic, mediated instructional activitiesactivities”” of the educational institutionof the educational institutionThe copyrighted materials are The copyrighted materials are ““directly related directly related and of material assistance to the teaching and of material assistance to the teaching content of the transmissioncontent of the transmission””

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Strategic ImplementationStrategic Implementation

Step 1: Assemble the TeamStep 1: Assemble the Team–– Technological ExpertiseTechnological Expertise–– WellWell--Informed FacultyInformed Faculty–– Policymaking AuthorityPolicymaking AuthorityStep 2: Find the Right CourseStep 2: Find the Right Course–– Who can use the benefits?Who can use the benefits?–– Who needs the Who needs the ““relative certaintyrelative certainty””??–– Who is ready to cooperate?Who is ready to cooperate?

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Strategic ImplementationStrategic Implementation

Step 3: Stay Flexible!Step 3: Stay Flexible!–– Statutory InterpretationsStatutory Interpretations–– EverEver--Changing NeedsChanging Needs–– Temperamental PlayersTemperamental Players–– Preserve Your AlternativesPreserve Your Alternatives

Largest Lessons:Largest Lessons:–– Licensing!Licensing!

–– Fair Use!!Fair Use!!–– Ownership!!!Ownership!!!

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A Few Words about OwnershipA Few Words about Ownership







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New Meaning of OwnershipNew Meaning of Ownership

Open AccessOpen AccessReaching New ReadersReaching New ReadersIncreasing ImpactIncreasing ImpactCreative CommonsCreative CommonsAllowing UseAllowing UseReducing Transaction CostsReducing Transaction Costs

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A Few DevelopmentsA Few Developments

Harvard Resolution (2008Harvard Resolution (2008--10)10)PrePre--Licensed to the UniversityLicensed to the UniversityAccessible in RepositoryAccessible in RepositoryOptOpt--Out with PermissionOut with PermissionNIH Public Access Policy (2008)NIH Public Access Policy (2008)Final Ms. to PubMed CentralFinal Ms. to PubMed Central1212--Month EmbargoMonth Embargo

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A Few GoalsA Few Goals

Advancing ScholarshipAdvancing ScholarshipPromoting Access to PublicationsPromoting Access to PublicationsPreserving Academic FreedomPreserving Academic FreedomEncouraging Innovation & CreativityEncouraging Innovation & CreativityExpanding the ClassroomExpanding the ClassroomSupporting Research WorldwideSupporting Research WorldwideBuilding the Next Generation of ResearchBuilding the Next Generation of ResearchReducing Costs and BarriersReducing Costs and Barriers

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Kenneth D. Crews, J.D., Ph.D.Kenneth D. Crews, J.D., Ph.D.www.copyright.columbia.eduwww.copyright.columbia.edu

Sign Up:Sign Up: www.facebook.com/kennycrewswww.facebook.com/kennycrews

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kenneth d. crews, j.d., ph.d. · zthe media center has a collection of art slides. zthe viewers and...

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