Copyright Resources on the Web

The Association of Research Libraries provides an excellent brocure called “Know Your Copyrights” that summarizes what classroom instructors can do with copyrighted material:

These two sites offer good general overviews of copyright as it affects higher education and in-depth explanations of fair use:

 

This site addresses a number of additional scenarios involving fair use in course management sysytems:

These two checklist can help determine if a specific use falls into either fair use or the TEACH Act:

 

This text is designed to help graduate students understand the impact of copyright law on their research and publishing:

 

This chart will explain the complex determination of whether or not a particular work is in the public domain:

 

When it is determined that permission for a particular use is needed, the Copyright Clearance Center should be the first stop:

Open Access legislation stalled

Three important pieces of legislation for the Open Access movement stalled in Congress last term. None were adopted, and it seems likely that some of these proposals will be reintroduced in the new Congress, although the form may change.

Both the Federal Research Public Access Act, which would have required public access within six months for all published research that was supported by federal funding from the major funding agencies, and the less well publicized CURES Act, which would have mandated public access for funded medical research (much narrower that FRPAA), died when the last Congress adjourned and will have to be reintroduced in the 110th Congress in order to be considered.

The best chance for any public access mandate last term had seemed to be the NIH Reauthorization bill, which contained language to make deposit of NIH-funded research, now merely suggested, mandatory. That language was removed, however, before the Reauthorization bill was approved.

So the status quo on public access reigns.

What copyright licensing issues are involved in digital publishing?

Digital publishing really involves three separable issues.

First is the author’s rights that are negotiated when a work is published in traditional media. This is where an author’s addenda comes in; they help preserve the right to make educational uses and to publish in online forums. These addenda are actually increasingly unnecessary, however, as publication agreements are thenmselves being modify to allow those rights in the first place. It is important for authors to negotiate with publishers to retain rights for digital publishing.

The second concern is the license that an online publisher obtains from the author for online distribution. If the work has been published in a traditional journal, the author has to be sure s/he has the right to allow online distribution, then they usually give a non-exclusive license to distribute to the online publisher.

The third concern is the license that the online publisher uses to try and control uses made of the work by the public who receives it. This is what the Creative Commons license is designed to do. The Creative Commons license relies on an assertion of copyright, so the person doing the licensing must hold the copyright for it to work. The CC license is a waiver of copyright, a statement that the copyright will not be enforced against certain uses (ie, attributed non-commercial uses) that will therefore not require any further permission.

For most online publications it is necessary to think about all three rights issues. The first will only arise if the online repository is publishing something that has already been published elsewhere. If the work is previously unpublished, this will not be a concern. The other two types of licensing issues will have to be decided, however.

Generally a digital publisher will want to get a non-exclusive license to publish the work from the author. This license should, in turn, confirm that the material will be distributed to the public under a Creative Commons license. By including in the license with the author a stipulation of how the material will be sdistributed, many later misunderstandings can be avoided. Indeed, prior awareness of each of these three rights issues in licensing digital content, and of how they inter-relate, will smooth over most of the potential legal rough spots as digital publication moves forward.

For a sample distribution license that anticipates distribution under the Creative Commons, see our Scholarly Communications Toolkit.

Copyright legislation left behind by the 109

The 109th Congress adjourned last month without taking action on a number of copyright related bills.

Most significant amongst the un-adopted proposals was the “Orphan Works” act, which was first proposed as a stand-alone bill, then later incorporated with another, much less appealing, copyright amendment. Orphan works legislation is tremendously important for libraries, and is relatively uncontroversial, at least compared to many other copyright proposals. The legislations incorporates a proposal made by the Library of Congress that would amend the “remedies” chapter of the Copyright Act (Chapter 5 of Title 17 in the US Code) so that it would be easier to make use of works that are still in copyright protection but for which a rights holder able to grant permission for the use is unavailable. The potential user would be required to make a “reasonably diligent” search for the owner of the copyright before proceeding. After such a search, if a rights holder turned up later on, the only financial liability the user would have would be to pay a reasonable licensing fee for the use to that rights holder. A non-profit educational institution could avoid even this fee by ceasing to use the material.

Orphan works reform would greatly reduce the “chilling effect” that extended copyright protection has on libraries that want to prepare digital collections and displays. Often the material in question is quite old and no longer subject to any commercial marketing, but libraries are currently subject to significant damages if they use such material and are later confronted by a re-appearing copyright holder .

Two other pieces of legislation that were left unresolved were the “Broadcast Flag” proposal and the “Digital Media Consumers’ Rights Act of 2005.” The former would give the FCC authority to require that all digital TV signals contain code that prevents redistribution. Because its language about educational exceptions is unclear, this proposal seems to threaten legitimate educational exploitation of TV signals. The Consumer Rights Act, on the other hand, would create an amendment to the DMCA to allow consumers to bypass technological copy protection controls as long as that “circumvention” did not result in copyright infringement. This proposal would greatly simplify educational use of digital content.

Copyright and plagiarism

What should I know about how copyright and plagiarism relate?

Q – How is copyright related to plagiarism?

Plagiarism is best defined as the unacknowledged use of another person’s work. It is an ethical issue involving a claim of credit for work that the claimant did not create. One can plagiarize someone else’s work regardless of the copyright status of that work. For example, it is nonetheless plagiarism to copy from a book or article that is too old to still be under copyright. It is also plagiarism to use data taken from an unacknowledged source, even though factual material like data may not be protected by copyright. Plagiarism, however, is easily cured – proper citation to the original source of the material.

Copyright infringement, on the other hand, is the unauthorized use of another’s work. This is a legal issue that depends on whether or not the work is protected by copyright in the first place, as well as on specifics like how much is used and the purpose of the use. If one copies too much of a protected work, or copies for an unauthorized purpose, simply acknowledging the original source will not solve the problem. Only by seeking prior permission from the copyright holder does one avoid the risk of an infringement charge.

Q – What if I just take an idea from another source but do not copy the words?

Copyright does not protect ideas, only the specific expression of an idea. For example, a court decided that Dan Brown did not infringe the copyright of an earlier book when he wrote The Da Vinci Code because all he borrowed from the earlier work were the basic ideas, not the specifics of plot or dialogue. Since copyright is intended to encourage creative production, using someone else’s ideas to craft a new and original work upholds the purpose of copyright, it does not violate it. Only if one copies another’s expression without permission is copyright potentially infringed.

To avoid plagiarism, on the other hand, one must acknowledge the source even of ideas that are borrowed from someone else, regardless of whether the expression of those ideas is borrowed with them. Thus a paraphrase requires citation, even though it seldom raises any copyright problem.

Q – Where can I learn more about plagiarism?

The Duke Libraries have an extensive guide to avoiding plagiarism. For a broader discussion of issues involving academic standards and the consequences of their violation, see the web site of Duke’s Academic Integrity Council.

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.

Discussions about the changing world of scholarly communications and copyright