Managing copyright in your own work

How do I manage the copyright in my own work?

Q – What do I have to do to get a copyright?

You do not need to do anything to have copyright protection in your original work; since 1989, copyright has been automatic, taking affect as soon as original work is fixed in tangible form. This means that text that is written in a word processing program, photographs that are taken with a digital camera and music that is recorded on an iPod, to take just a few examples, all have immediate and automatic copyright protection.

Q – Should I register my copyright?

It is not necessary to register a work in order to have copyright in that work. Registration, however, has several advantages. Registration is required before a copyright holder can sue someone else for infringement, for example, and the fact of registration is considered evidence of ownership and originality. If you plan to distribute your work to the public in any way and want to protect it from unauthorized uses, registration is a good idea.

Copyright registration is easy and inexpensive ($45). The Copyright Office webpage has all the instructions and forms that you need.

Q – Do I have to give my copyright to a publisher?

Not always. Academic publishers have traditionally required that authors transfer (or “assign”) their copyright to the publishers. But it is becoming more common for a publisher to accept a “non-exclusive license” to publisher your work. In that case, you would retain the copyright and be able to make subsequent uses of your own work without permission.

Even when you do transfer your copyright to a publisher, it is possible to retain rights to make certain uses of your work. It is important to read publication agreements carefully and to be ready to negotiate with publishers when necessary.

Q – If my publication agreement gives the copyright to the publisher, can I still use my own work?

Not necessarily. If you have transfer all of your rights to the publishers, putting your own work on a website or distributing copies at a scholarly conference, for example, might actually infringe the copyright, which is now owned by the publisher. This is why it is important to be careful about the publication agreement that you sign. Remember that these agreements are negotiable.

Q – What rights should I retain when I publish a work?

One thing many faculty want to do is to use their own work in class, even after it has been published. The right to reproduce and distribute your work for non-commercial educational purposes should be retained. Likewise the right to prepare or authorize derivative works like a new article based on previous scholarship, a collection of prior writings or a translation is valuable for scholars. Also, the right to post your article on a personal web site or to place it in a repository maintained by your institution or disciplinary organization is becoming increasingly important. Studies indicate that open access actually increases the visibility and citation of your work, so retaining the right to provide such access can be very beneficial.


Q – Can someone help me understand the publication agreement?

The Scholarly Communications Office at Duke will be happy to look at your publication agreement with you. Many such agreements already permit you to retain some or all of the rights we have discussed, and if yours does not, we can suggest ways to negotiate for those rights. Please call us at 668-5541 or use the e-mail link provided.

You can also find more information on these issues, including some helpful links, at this page for faculty authors.

Digital Rights Management (DRM)

How can I deal with DRM protected material?

Q – First things first; what is DRM?

DRM, which stands for Digital Rights Management, refers to any of a number of systems that are used by producers of digital content to prevent or inhibit copying and distribution by consumers of the content they sell.

One of the most common DRM systems is the Content Scrambling System, or CSS, that prevents many DVDs from playing clearly on equipment that is not equipped with a proprietary decryption key. Another common product is Macrovision, which will cause a recording made from an encrypted VHS tape or DVD to be scrambled or faded. Also, many music CDs are sold with technological protections that prevent them from being easily copied, or “ripped,” onto a computer.

Although DRM systems are intended to prevent copying technologically, most of the systems are easy to defeat with decryption programs. The real force behind DRM systems is not technological but legal.

Q – Are DRM systems really protected by law?

Yes! The Digital Millennium Copyright Act of 1998 added provisions to the copyright law (chapter 12 of Title 17 of the U.S. Code) that make it illegal to circumvent DRM systems and to manufacture or sell technology designed to circumvent such systems. Both civil and criminal penalties are provided for by this “anti-circumvention” law.

Q – Do all digital products have DRM protection?

No. Some DVDs, CDs or VHS tapes are sold without any kind of electronic copy protection, although most such products probably do have some kind of DRM. Sometimes the packaging of the product will indicate the presence of a DRM system, such as when the name Macrovision is printed on a VHS cassette sleeve. Most of the time, however, one can be sure that a digital product is protected only by trying, and failing, to make a copy.

Q – I want to make a copy of a film that is not DRM protected. May I?

If the film is not protected by an electronic copy prevention system, it will not be a violation of the DMCA to copy it. But copying can often be an infringement of copyright, so you should only proceed with the copy if it falls into one of the exceptions to copyright like the TEACH Act or Fair Use.

Q – I want to make a copy of a film that has DRM protection. May I?

Probably not. Even if you have the software or device available to successfully circumvent the DRM make the copy, doing so is likely to violate the DMCA and could subject you to civil (money) damages and even criminal charges, if the circumvention is willful and for commercial gain.

There are several exceptions to the anti-circumvention provisions of the DMCA, and you should only proceed with the copying if you are certain that what you are doing fits within one of these exceptions, which are very narrow.

Q – What are the exceptions to the anti-circumvention rules that enforce DRM?

There are several exceptions to these rules, but only two that really are useful for educational copying.

The first is for film and media studies professors who want to make compilations of portions of video for use in the classroom. This exception applies only to film clips and only to professors who are teaching film or media studies; note that it does not allow circumvention in order to copy whole films into a course management or distribution system. The films used to make these allowable compilations must be owned by the University library system.

The second exception to the anti-circumvention rules really only benefits technology staff and researchers; it allows one to avoid copy protection systems when one is trying to make a protected piece of digital content interoperable with another, independently created software product, as long as the purpose of the interoperability is not itself an infringement of copyright.

For help deciding if either of these exceptions to the anti-circumvention rules applies to your situation, please contact the Scholarly Communications Office.

Publishing recordings of student performances

Q – Students in my language class are doing performances of plays and recitals of poetry that are being recorded. May I place these recordings where students in the class can watch them repeatedly to help reinforce the learning? Can I put them on the open Web to showcase my students’ talent?

This is a fairly complicated question, since it involves four separate elements.

First there is the issue of when the material being performed was published. Anything published before 1923 is in the public domain and can be performed, recorded and distributed freely. After 1923 there is a complex set of rules (see chart here) that determine whether something is still in copyright protection. Although much material published between 1923 and 1963 has in fact passed into the public domain, for simplicity sake we will assume here that such material is still protected.

The second element to consider is the genre of the material. The TEACH Act, which makes transmission to students in the class possible, distinguishes between performances of dramatic and non-dramatic works, with the former subject to more limited use. When the TEACH Act applies, only limited portions of a dramatic performance can be transmitted, while all of the performance of a non-dramatic poem, for example, is permitted.

Next is the issue of to whom the transmission is made available. If only students registered for the class can view the recordings, the TEACH Act applies. This means that we can use material that is protected by copyright as long as the specific requirements of that law are met. When the general public is the recipient, however, there is no exception that is likely to allow transmission of a performance of a protected work, so permission would be necessary. Performances of works no longer in copyright can be transmitted freely to either group.

Finally, it is necessary to be concerned about the privacy of the students whose work is being recorded. Those students have a right to protect the privacy of their educational records, including a recording of their classroom work. Although transmission to other students in the class probably does not endanger this privacy, if performances are available to the general public it is necessary to get a signed release form from each student whose work is recorded.

This chart provides a schematic overview of the various possibilities:

Available only to students registered in the class

Available to the general public via the Internet

Poetry published in 1923 or later.

OK, based on TEACH Act rules re. non-dramatic performances

Only with © permission and a written waiver from the student(s) involved.

Poetry published before 1923.

OK (public domain)

OK with a written release from the student(s) involved.

Drama written in 1923 or later.

Limited portions only, based on TEACH Act rules re. dramatic performances

Only with © permission and a written waiver from the students involved.

Drama written before 1923.

OK (public domain)

OK with a written release from the students involved.

The general message to be gleaned from this analysis is that it is quite possible to use recordings of student performances, even on the open Web, provided that material is carefully selected and the students and the uses are planned for in advance.

Digital video in a Blackboard course site

Q – Since I am allowed to show a video in class to my students, can I also put a digital version of that same film into my course Blackboard site where enrolled students can watch at their convenience?

The two situations really are not the same. Digitizing a film makes an additional copy of that work which is not created when you simply show the film in class, and that digital copy, because it is so cheap and easy to distribute over the internet, poses a real threat to the copyright holder’s interests.

For this reason, the teaching exception that allows you to put film clips into a course management site – the TEACH Act – is more restrictive than the face to face exception.

The TEACH Act is intended to facilitate distance education, and it applies to both fully distanced courses and “hybrid” courses, where classes meet together and also use content placed in a course management system. It allows the “transmission” of digital works only in systems that are restricted to students registered in the class. It permits distribution of “reasonable and limited” portions of films, provided that reasonable steps are taken to prevent students from making more copies or retaining a copy of the film clip beyond the duration of the class.

This means that only portions of a film can be digitized for inclusion in a Blackboard site. The amount used should be no more than is necessary to accomplish the pedagogical purpose, and must always be less than the whole. In order to prevent subsequent copying and distribution, streaming technology should be used for these film clips.

Before converting a film clip from analog format to digital for inclusion in a course management system, it is important to determine if a digital copy is available for purchase at a reasonable price. Only convert from analog if such a digital copy is either not available or is protected by an electronic copy protection system that prevents the use of a digital film clip.

The TEACH Act imposes some other conditions on the educational use of digital transmissions, some of which must be met by the institution rather than the individual instructor. North Carolina State University has developed a very useful Teach Act toolkit to help you understand and implement this exception to copyright law.

Scanning to add to a Blackboard course site

Q – Are there rules about what articles and other text I can scan myself and make available to students using my Blackboard course management website?

Yes. Every use of copyrighted material in a course management website should be evaluated as a fair use. When a fair use analysis does not support the use, either permission should be sought or some other material that is not subject to copyright substituted. In general, material that could not be used in print without permission also may not be used in a course web site without permission.

Fair use is a balancing test, and there is no certain way (short of a law suit) to know that a particular use is a fair use. To address this uncertainty, the copyright law provides that when employees of a non-profit educational institution make a good faith judgment about fair use, they are protected from most of the damages that a copyright owner could collect if they are found to be mistaken. So thinking about fair use and making a reasoned and defensible decision about it, is very important.

When we make a fair use determination, we have to balance four factors. No one factor, nor any specific combination of factors, is decisive in this analysis; we simply look at all four and decide if the overall balance favors fair use or if it points us toward seeking permission. It is generally agreed, however, that the first and fourth factors usually carry the most weight in the analysis.

The first factor is the purpose and character of the use. Educational uses favor a finding of fair use, whereas commercial uses count against fair use. Nevertheless, even a commercial use may be found to be fair if it is transformative, which means that it creates a new work with its own social value out of materials borrowed from the original. Comment and criticism, as well as parody, are often regarded as transformative uses.

The second factor looks at the nature of the original work. It is easier to make a fair use of factual or non-fiction material than of highly creative work. Also, unpublished work gets stronger protection, so that fair use, while still possible, is less likely.

The third factor is the amount of the original work that is used; the more of the work that is taken, the less likely a finding of fair use is. The best practice is to use no more of a copyright-protected work than is necessary for the educational purpose you are pursuing. Please note that the library’s electronic reserves system suggests that no more than 10% of a whole work should be used in order to comply with fair use. It is also important to know that this factor may count against fair use if the “heart” of a work – its central message or point – is taken, even if the percentage of words copied is quite small.

The fourth factor is impact on the market for the original. In the context of course management systems, this means that scanning and distribution of articles or portions of books should never be used to substitute for having students purchase the original work. Such distribution should only be used for short readings from books that would not be assigned for purchase if the Blackboard system were unavailable. If a book is out-of-print but still in copyright protection and students will need to read a large portion of it, permission should be sought.

A Fair Use Checklist is available for help in making a fair use determination, as is a detailed discussion of the fair use factors from the University of Texas. You can also find more fair use scenarios for course management systems from UNC.

Copying readings for students

Q – I have two journal articles that I want every student in my class to read. May I make enough copies for everyone and hand them out? What about putting them in the Library’s e-Reserves system? The Library subscribes to both of the journals from which the articles are taken.

Both of the suggested uses seem like fair use. But it is important to stress that fair use, which is an exception to copyright’s prohibitions that allows for socially desired uses, is very dependent on the specific facts of a situation. Without complete facts for each situation, any assessment of fair use must be tentative and illustrative only

The fair use exception to copyright allows for copying and distribution for a variety of uses. It lists several exemplary uses, including “multiple copies for classroom distribution.” Although this seems pretty clear, over the years publishing industry representatives have convinced academics to agree to some pretty restrictive guidelines (the guidelines are just that, they are not the law). The guidelines suggest that making
multiple copies and distributing them in class is appropriate only when the copied selection is brief and the use is spontaneous. So the first question is, are you copying only a single article from each of two publications? If that is the case, is this a one time use prompted by the fact that the articles fit very well into the current classroom topic? If
both answers are yes, brevity and spontaneity both apply and you are squarely within fair use.

These guidelines, however, especially that regarding spontaneity, are too restrictive for application to all academic situations, both because they over-interpret the law
and because they limit educational uses too much. The Perkins Library system has adopted an e-Reserve policy that does not include the spontaneity guideline. In other words, we allow articles to be put into the e-Reserve system even if they have been used in previous semesters and are not simply one-time reactions to specific classroom conditions. We believe this is still fair use because of the purely educational purpose
of these e-Reserves and because they do not have a substantial effect on the market for the original, since because only small portions are used, the material would not be required for purchase even if it were not available on reserve.

The bottom line, then, is that if these are single articles from journal issues (rather than photocopies of entire issues, for example) the library would likely put them into the e-Reserve system for you. If you are going to use the articles in subsequent semesters, that is probably the best way to go, since each copy is then made by an individual student for
his or her own personal use, rather than all being made and distributed by you. But in the meantime, making the copies and distributing them this semester seems like a fair use.

One more point is very important. If Duke already subscribes to an online database that contains either of these articles, the best practice by far is to simply link to that online version out of a course website or Blackboard page. Since the link will only work for authorized students, we will be complying with our license obligations and not posing any risk to the copyrights involved.

Writing an encyclopedia article

Q. I am writing an encyclopedia article and want to cull some facts from earlier articles on the topic. I will also quote a couple of passages from the same sources. Is there a copyright problem?

Facts are not protected by copyright law. The date or the place of my birth, for example, are facts in which I can not claim any copyright, nor can any person who writes my biography. In so far as you are simply harvesting facts from various sources and repackaging them, no copyright issue is raised.

On the other hand, the expression of a fact can be protected by copyright law. An author would have a copyright interest in a specific sentence recounting my birth, and that sentence can not be directly copied without infringement. So you should avoid copying the expression of the facts that you are harvesting.

One complication of this distinction between fact and expression is the “merger” doctrine, which says that when a particular fact can reasonably only be expressed in one way (so that fact and expression “merge”), no copyright in that expression will be recognized. A plain statement that “John F. Kennedy died in 1963” would be an example — there is little creative about it and the expression really does merge with the fact. On the other hand this sentence — “JFK’s assassination in 1963 was the tragedy that defined the second half of the century” — surely does contain enough original and creative expression to be protected.

If your use of facts gathered from other sources does not copy protected expression, even if it occasionally repeats some uncreative expression that merges with the bare facts reported, there is no copyright issue at all. The citation of the sources from which the facts were gathered is, of course, good academic practice, but it is not required by copyright law.

When you quote or paraphrase a judgment, opinion or estimation, however, you are certainly in the realm of copyright protected expression. If you paraphrase, copyright does not enter the picture, because the expression is not being copied. Plagiarism, of course, might be an issue, and you address it by citing the source. If a direct quotation is used, so that expression is copied, fair use is the exception that prevents an infringement of copyright. The use of small segments of protected expression for the purpose of research and scholarship is a universally recognized instance of fair use and authors rely on it all the time. Only when longer quotations, diagrams, pictures or data sets are copied does it really become necessary to get permission. In doubtful situations, publishers will usually err on the side of caution and want you to obtain permission, even when these citations are probably fair use.

Copyright exceptions for teaching

There are three exceptions to the exclusive rights in copyright that help serve educational needs:

Face-to-face teaching – Section 110(1)

Allows performance or display of protected material in a face-to-face teaching setting.

Must be in a classroom and at a non-profit educational institution.

Does NOT allow copying. This is an exception to the exclusive rights of performance and display, but not the right of reproduction.

Copying may still be allowed by fair use, however.

Performance and display in the classroom must employ a legally obtained copy – no “bootleg” copy is eligible for this exception, but borrowed copies are OK.

“Transmission” to registered students – Section 110(2), a.k.a. The TEACH Act
Allows digital copies in course management systems under a specific set of conditions.

Text and images may be transmitted (displayed) in amounts comparable to in-class teaching.

Music and video may be used in portions; entire songs may be used if “non-dramatic.”

Access must be restricted to students registered in the course, and notice that the material is protected must be given.

Technological measures to prevent the material from being retained after the course is over or copied to others are required. Streaming of music and video is a good way to meet this requirement.

The institution should have policies and educational programs about copyright in place to take advantage of this exception.

Fair Use – Section 107

A flexible exception that allows socially valuable uses of copyrighted material, including educational copying.

Fair use applies in many situations, but its application is never certain. A good faith decision in each situation is important.

Four factors are balanced to determine fair use:

  1. The purpose of the use should be for non-profit education. If the use adds to the original in some creative way (like commenting on a poem or making a parody), the fair use argument is stronger.
  2. Factual material is more susceptible to fair use; creative work like music and art gets stronger protection. Unpublished work also gets more protection
  3. Use only that amount of the original work that is necessary to accomplish the educational purpose.
  4. Avoid uses that substitute for purchasing available copies; damaging the market for the original counts heavily against fair use.

 

For a quick overview of what you can do with copyrighted material in the classroom, see the Know your Copyrights brochure from the Association of Research Libraries.

For more information about fair use, see this illustrative use case, the fair use checklist from IUPUI and/or the discussion of the four fair use factors from the University of Texas.

For more information about the TEACH Act, see the TEACH Act Toolkit from North Carolina State University.

Discussions about the changing world of scholarly communications and copyright