Copyright Law in Cyberspace
By: Georgia Harper

"We consider Georgia Harper the  authority on copyright law,
Georgia K. Harper is the manager of the Intellectual Property Section of the Office of General Counsel for the University of Texas System, where she specializes in copyright law. Her online publication, The Copyright Crash Course,* provides guidance to University faculty, students and staff concerning a wide range of copyright issues and is freely accessible to all universities and colleges."

 

Overview

 

• Why Do We Have Copyright?

  • Copyright's purpose
    
    

• When Does Copyright Become an Issue?

  • Copyright Basics
    
    

• How Does Analog Fair Use Apply to the Multimedia World?

• Performance Rights

• Specific Distance Learning Copyright Issues

  • Using materials from archives and special collections
  • I found it on the Internet
  • Digitizing analog images
  • Incorporating images into new works
  • Reserves
  • Licensing Resources
  • Merger of different kinds of works in multimedia
  • Creating derivative works
    
    

• Protecting Multimedia Creations

• Technology's Effect on Achievement of Copyright's Purpose

• Citations

 

Why Do We Have Copyright

 

Copyright affects everyone.

• Copyright's Purpose: To Improve Society Through Advancement of Knowledge

  • Balancing the rights of copyright owners with the rights of the public for access to and use of works
    
    
    • Incentive to authors
    • Limits on authors' rights to control and exploit works
    • Balance achieves copyright's constitutional purpose
      
      

 

What Makes Copyright an Issue?

 

The Crash Course in Copyright

If faculty members use others' works in the creation or
distribution of new materials, they need to think about Copyright.

First, The Basic Scheme

• The Law Gives Certain Rights to Copyright Owners

• Fair Use and Other Users' Rights are the "Play in the Joints"

• Sometimes We Have to Ask for Permission

• Sometimes We Are the Owners!

 

A Few Particulars

• What Does Copyright Protect?

  Original works of authorship fixed in a tangible medium of expression
  
  

  • A person's unique way of expressing something
  • Requires only a minimum amount of creativity
  • Does not protect underlying ideas or facts
    
    

  Leaving facts and ideas free for public use supports copyright's achievement of its purpose, if the public can gain access to the work.
  
  

• When Does it Begin and End?

  Today, it begins at the moment of fixation in a tangible medium of expression and ends at the expiration of 70 years after the death of the author. Different rules apply to older works, however, and there are special rules for works-for-hire.
  
  

  • Protection is automatic
  • Copyright notice is not required
  • Registration is not required unless copyright owner wishes to bring suit
    
    
    • Registration benefits - statutory damages and attorneys' fees
      
      
  • Terms of Protection
    
    
    • Works created during or after 1978
      
      
      • Life of the author plus 70 years
      • Works for hire: 95 years after publication or 120 years after creation, whichever is shorter
        
        
    • Works published before 1978
      
      
      • 95 years after publication
      • If published before 1964, 28 years after publication + 67 more years if renewed
        
        
    • Works created before 1978 but not published
      
      
      • Life of the author plus 70 years or 2003, whichever is longer
        
        
  • Recent changes in Copyright Term Extension Act allow libraries to use certain works in their last 20 years of protection
    
    

  When copyright terms were shorter and it required a definitive act to bring a work under federal protection, copyright law's balance favored public access and use (the public domain) more than it does today. These changes in the law evidence a strong shift in that balance.
  
  

• What Does it Mean to Owners?

  Owners have exclusive rights to make copies, create derivative works, distribute, display and perform works publicly. Certain artists have rights of integrity and attribution (moral rights) in original works of art or limited edition prints (200 or fewer).
  
  These exclusive rights are an important part of the way copyright law achieves its purpose. Along with the term of protection, they provide an incentive to authors to create. Exercising these rights has typically required that the copyright owner control copies. Controlling analog copies was not that hard, but digital copies are another story! Controlling copies, however, is not the only way to provide an incentive. As controlling copies becomes synonymous with controlling access, it becomes more important to find other ways to provide an incentive.
  
  

• What Does it Mean to Users?

  The limits the law places on the ability of a copyright owner to control all uses of his work are part of the law's balance. Those limits of special importance to educators include:
  
  

  • Fair use (17 USC 107)
  • Library's special exemption (108)
  • First sale doctrine (109)
  • Educational performances and displays (110)
  • Software backups (117)
  • Modifications for blind and disabled (121)
    
    

  These limitations on copyright owners' rights, and others not mentioned here, are critical to the achievement of copyright's purpose. They are just as much a part of how copyright law improves our society by increasing knowledge as the incentive to authors.
  
  

• What is Fair Use?

  • Embodies First Amendment concerns: criticism, commentary, news reporting, teaching, reasearch and scholarship
  • Addresses market failures: permits important uses that don't make economic sense
    
    

  Both of these functions of fair use strongly support the achievement of copyright's purpose by permitting certain uses of works that do not significantly affect the owner's incentive. The fair use statute builds in to the fair use test ample consideration for the copyright owner's interests.

Determining Ownership

• The Author is Usually the Owner

  • More than one author may be joint owners of a work
    
    
    • Independently copyrightable contributions
    • Mutual intent that authors will be co-owners of the work
    • Childress v. Taylor; Erickson v. Trinity; Thompson v. Larson
    • Discussion in "Copyright Law in Cyberspace"
      
      

• The Employer is the Owner When:

  • Work created by employee within scope of employment
  • Work properly documented as a work-for-hire
  • Work created pursuant to contract with assignment
  • CCNV v. Reid
  • Discussion in "Copyright Law in Cyberspace"
    
    

• U.T. System Intellectual Property Policy

  • Permits an author to own scholarly and educational works within field of expertise, unless the author was required to create the work
  • If the University has an interest in scholarly or educational works, it should be set out in an agreement to avoid confusion and misunderstanding
    
    
    • Ownership interest;
    • Right to use;
    • Right to reimbursement of contribution; and/or
    • Right to share in proceeds
      
      

• New Challenges

  • Faculty members hired or required to create certain materials
    
    
    • Using an acknowledgement to clarify unusual circumstances
      
      
  • Multimedia courseware
  • Changing nature of authorship
    
    
    • Inter-institutional collaborations
    • Student contributions
    • Work-for-hire contributions (contract labor)
    • Non-faculty University employees
      
      
  • Significant resource reimbursement
    
    
    • New Regental Policy on Copyright Management
      
      

• The Copyright Crash Course Tutorial Addresses Ownership Issues

• Copyright Law in Cyberspace - Scenario-based Discussion

Fair Use in Detail

• Section 107 of the Copyright Law includes illustrations of potential fair uses and describes four factors that must be taken into account in analyzing whether a use is fair.
  
  Examples: Criticism, comment, news reporting, teaching, scholarship and research

  The four factors:
  
  

  • Character of the use
  • Nature of the material to be copied
  • Amount and importance of the part copied
  • Effect on market for permissions
    
    

  Fair use is not a blanket exemption for educators. Fair use permits certain uses of certain works for certain purposes, taking the interests of the copyright owner into consideration in the evaluation of each of the four factors.

Getting Permission

• Collective Rights Organizations

• Contacting the Owner Directly

• What if the Owner Has Changed?

• Be Sure the Person Granting Permission Has Authority

• Should Permission be in Writing?

• What if you Have Difficulty Identifying the Owner?

• What if the Owner is Unidentifiable or Unresponsive?

Applying Analog Fair Use
and Performance Rights
to Distance Learning

If you plan to create distance learning materials for limited use within your university, reliance on fair use is appropriate. If, on the other hand, you think you may commercialize the product, reliance on fair use should be quite limited.

• Fair Use Is Not Just For Copies: It Applies to:

  • Making copies of copyrighted works
  • Making derivative works (for example, digitizing images)
  • Distributing works, including electronic distribution
  • Displaying and performing works publicly
    
    

• Normally, Cases Help Us Understand Fair Use in Various Contexts

  But, No Cases Directly Address Fair Use or Transmission of Others' Works in a Multimedia Creation

  • Commercial fair use cases - trend is towards narrowing the scope of fair use (Texaco; Kinko's; Michigan Document Services; Los Angeles Times v. Free Republic)
  • On the other hand, Sega/Nintendo cases indicate that it is fair use to make a copy in order to get at unprotected elements or make a permitted use
  • Sony permits "timeshifting" of network broadcast tv programs
  • Bridgeman v. Corel - exact duplication of public domain work lacks sufficient originality to qualify for copyright protection under Britain's copyright law
    
    

• You are on Firm Ground When Your Use Involves:

  • Comment, criticism, news reporting, parody (Campbell v. Acuff-Rose)
    
    
    • Still, you must take all 4 factors into consideration: Los Angeles Times v. Free Republic (posting of full text of articles on website, even for "criticism and comment" is not a fair use)
      
      

• CONFU Educational Fair Use Guidelines

  • Understand relationship between statute and guidelines
  • There is no consensus on guidelines status:
    many institutions feel strongly that they are not workable
  • Creation of multimedia works
  • Educational use of digital images
  • Distance learning guidelines
    
    

• The Good Faith Fair Use Defense

  • Having a policy really helps!
    
    
    • Developing a policy
    • Implementing a policy
      
      

• If Fair Use Does Not Apply, Seek Permission

• UT System Rules of Thumb

• Performance Rights for Transmissions

  • Eligibility requirements:
    
    
    • Regular part of systematic instructional activities
    • Directly related to teaching content
    • Reception in classrooms/similar places or by persons with disabilities or "other special circumstances" that prevent thier attending class
      
      
  • Section 110(1) permits display/performance of any work, regardless of medium, in face-to-face teaching
  • Section 110(2), which authorizes transmissions of still images
    
    
    • to persons who have special circumstances that prevent them from attending class
    • to classrooms or places devoted to instruction

    only applies otherwise to nondramatic, nonaudiovisual literary works and music

  • Copies necessary to a digital transmission may be fair use
    
    
    • UT's Rules of Thumb would permit digitizing analog images so long as a digital image is not available at a fair price
    • No transmission right in dramatic or nondramatic audiovisual works
      
      
      • Rented videos
      • Purchased videos
      • Tapes made from broadcast television
        
        
  • The CONFU Distance Learning Fair Use Guidelines attempted to apply fair use to bridge the gap between what is authorized for face-to-face teaching and what is authorized for distance learning
    
    
    • The Guidelines did not receive consensus support
    • U.T. System Rules of Thumb for Distance Learning
      
      
  • If fair use does not apply, seek permission
  • Digital Millennium Copyright Act, passed in October 1998, called for the Copyright Office, with input from educators and copyright owner industries, to report to Congress by the end of April 1999, its recommendations for changing Section 110 to facilitate the use of digital technologies in Distance Education
  • The Copyright Office issued its Report in May, 1999:
    
    
    • The Copyright Office Report recommends to Congress that it change the law by: 
      
      
      • eliminating distinctions among types of works that can be transmitted in a secure environment;
      • exempting copies and distribution that must be done to make a permitted transmission;
      • removing the limitation to classrooms and other places devoted to instruction;
      • emphasizing that the exemption has no effect on fair use
      • placing portion limitations on audiovisual works;
      • excluding certain "instructional materials" from the exemption (works for which the primary market would be educational institutions);
      • making the use of technologies that prevent recipient copying a condition for qualifying for the exemption
        
        
    • Kenneth Crews of the Copyright Management Center at IUPUI has written a helpful summary of the Report
      
      
  • The TEACH Act  was introduced in March 2001 to make these recommendations into law.
    
    

• The Copyright Crash Course Tutorial Addresses Fair Use and Permission Issues

• Copyright Law in Cyberspace - Scenario-based Discussion

Specific Multimedia
Copyright Issues

• Look at All This Neat Stuff in the Library/Archive/Special Collection!

  • Who owns the copyright in all that neat stuff?

    Libraries and museums have not typically acquired copyright along with the material artifact.
    
    

  • Is it in the public domain?
  • Can we acquire the rights we need to use the materials now?
  • What might be fair uses of protected archival materials?
    
    
    • Rules of Thumb for Image Archives
    • Rules of Thumb for Multimedia
    • Rules of Thumb for Reserves
      
      

• I Found It On the Internet

  They must not care what I do with it, right?

  • Use is governed by the law and an implied license
  • Modifications to the implied license: Any explicit statement of permitted or prohibited uses
  • Additional uses outside the implied license
    
    
    • Uses permitted by Sections 110(1) and (2)
    • Multimedia Fair Use Guidelines
    • Educational Fair Use Guidelines for Digital Images
    • U.T. System Rules of Thumb
    • Getting permission
      
      

• Digitizing Analog Images

  • Educational Fair Use Guidelines for Digital Images
  • U.T. System Rules of Thumb
    
    

• Incorporating Images into New Works

  • Governed by fair use
    
    
    • Multimedia Fair Use Guidelines
    • Distance Learning Guidelines
    • U.T. System Rules of Thumb
      
      

• Electronic Reserves

  • Draft ereserve guidelines (March 1996)

    Most CONFU participants could not agree on the scope of fair use for electronic reserves. Copyright owner participants called into question whether electronic reserves without permission are legal at all.
    
    

  • ALA position statement

    ". . . ALA does not recommend formal guidelines for fair use in a digital
    information environment at this time."

    "ALA will, together with other library associations, investigate the development
    of guiding principles and examples of current practices in the appropriate use of,
    and in licensing agreements for, digital information resources."
    
    

  • UT System Rules of Thumb for Electronic Reserves
  • The Good Faith Fair Use Defense
    
    
    • 17 USC 504(c)(2)
    • Allows a court to refuse to award any damages even if the copying at issue was not a fair use
    • Applies if university personnel who copied material reasonably believed that the copying was a fair use
    • If it applies, it makes both the individual and the institution very poor prospects for a lawsuit
    • If our employees follow our fair use policy, they will be indemnified by UT System
      
      

  • Note that the DMCA has no effect on electronic reserves

• Licensing Access to Digital Works

  • How will the digital library differ from today's library?
    
    
    • Digital libraries collapse Sections 107, 108, 109 and Contract law.
      
      
      • Libraries acquire digital materials under contract
        
        
        • Patron access is controlled by contract

          It is possible that in the future, contract provisions will entirely replace copyright law as the source of rights to use others' works, whether negotiated or not (and validated by UCITA)

          Will copyright owners, on their own, provide public rights to access and use works as the Copyright Act does?
          
          

      • Will the need for coursepacks and electronic reserves disappear?
      • Should contracts that eliminate fair use be enforceable?
      • Will there be any need for fair use in a digital library?
      • What about interlibrary loan and document delivery?
      • What exactly will it mean to lend something?
      • How will this affect the achievement of copyright's purpose?
        
        
  • It is rarely OK to just sign licenses and send them back
  • Online resources for negotiating database and software license agreements
    
    

• Merger of Different Kinds of Works in the Multimedia Work

  • Should different standards for each kind of work continue to apply?
    
    
    • Rights to transmit materials for distance learning differ from rights to use materials in face-to-face teaching, depending on the medium of expression
    • Section 107's fair use analysis yields results for images and music that are different from results for text in the same context (nonprofit, educational reproductions for classroom teaching)
    • Some parts of Section 108 (library's special rights) do not apply to music, pictures, graphic, sculptural or audiovisual works (with limited exceptions)
      
      

• Creating Derivative Works

  There is no 10%, 20%, 30%, or any percent rule.

  • A derivative work is any work based on or largely incorporating another work
  • There is a tension between the law and artistic traditions (See The Arts and Humanities in Public Life: Copyright Protection and Appropriation Art by William M. Landes for a discussion of the Koons case, among others.)
  • Consider the contexts most likely to raise alarms:
    
    
    • Creativity of the original work
    • Commercial value of the original
    • Commercial value of the derivative
    • Market substitution
    • Wide distribution
    • Disparagement or harm to original owner's reputation
      
      
  • Use the fair use test to analyze whether creating a derivative might be a fair use
  • Don't confuse likelihood of getting caught with liability for infringement: They are not the same thing!

 

Protecting Multimedia Creations

 

• Registration Is No Longer Necessary, But Still Advisable

  • Before bringing suit, most copyright claimants must register their works
  • Register to get statutory damages and attorney's fees
    
    

• Ownership and Other Rights in the Work Should be Clear

  • Use our sample Creation and Publishing Agreements as starting points for allocating rights and responsibilities among authors and institutions
    
    

• Licensing Distribution

  • Sample Video Distribution Agreement
  • Sample Multimedia Development and Distribution Agreement
    
    

• University Uses of Faculty Owned Works

 

 

Technology's Effect on
Achievement of Copyright's Purpose

 

• Electronic Access Increases Opportunities for Public Access

  • Easier access to others' works
  • Wider dissemination of University creations
  • Increasing quantity and quality of digital content
    
    

• Digital Technologies Can Threaten Copyright Owner's Incentive

  • Napster and other P2P technologies
    
    

• Recent Changes in Law Tend to Favor Copyright Owners at Expense of Public Access and Use

  • Longer terms
  • Automatic protection
  • Internet service provider liability limitations marginalize fair use and other limitations on copyright owners' exclusive rights
  • Anti-circumvention provisions eliminate all limitations
  • Licensing and UCITA can eliminate all limitations (among many other problematic effects)
  • Read, "Copyright Endurance and Change," Section on "Trends" for short discussion
  • Read, "The Digital Dilemma" by the Committee on Intellectual Property Rights and the Emerging Information Infrastructure, published by the National Academy of Sciences, for more detailed discussion
    
    

• Support Alternative Business Models and Creative Strategies for Protecting Copyright Owners While Preserving Public Rights of Fair Use and Access 

• Electronic Distribution Can Increase Exposure to Liability for Copyright Infringement

  • University Liability for Faculty Infringements
  • Good faith fair use defense (17 USC 504(c))
  • DMCA Title II: ISP liability limitations
    
    
    • Conduit protections apply to question of whether to "ban" access to a technology
    • Content protections do not apply to online courses, class assignments, electronic reserves, administrative materials
      
      

• Urge Faculty to Try Our Copyright Crash Course Tutorial to Improve Your Odds!

• Copyright Law in Cyberspace - Scenario-based Discussion

 

 

Summary

 

• Legalities Are in Tremendous Flux

  • The statutes
  • The caselaw
  • The beliefs of copyright owners
  • The practices of users
    
    

• The Electronic Environment Offers New Opportunities to Make Works Conveniently Available and to Use Others' Works in New Ways

  • But Technology and the Change it Brings Can Threaten the Balance that Enables Copyright Law to Fulfill its Purpose
    
    

• Faculty Members Must be Conscious of Their Activities and the Value of Works to their Owners

  • Understand fair use, University policy, and the risks of using others' works
  • Use good judgment
    
    

• Establish Connections to Licensing Collectives

  • Make it easier for faculty members to get permission when they need it
    
    

• Visit the Copyright Crash Course for Online Copyright Support

   

  Citations

   

  American Geophysical Union v. Texaco, Inc., C.A.2 (N.Y.) 1994, 37 F.3d 881, amended and superseded 60 F.3d 913, certiorari dismissed 116 S.Ct. 592, rehearing denied

  Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 823 (Fed. Cir. 1992)

  Basic Books v. Kinko’s Graphics, 758 F.Supp. 1522 (S.D.N.Y. 1991)

  Campbell v. Acuff-Rose Music, Inc., U.S. Tenn. 1994, 114 S.Ct. 1164, on remand, 25 F.3d 297

  Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991)

  Committee for Creative Nonviolence v. Reid, 490 U.S. 730 (1989)

  Erickson v. Trinity Theatre Inc., 13 F.3d 1061 (7^th Cir 1994)

  Los Angeles Times v. Free Republic, No. 98-7840 MMM(AJWx) (C.D.Cal), Nov. 9, 1999

  Princeton University Press v. Michigan Document Services, Inc., C.A.6 (Mich.) 1996, 99 F.3d 1381, certiorari denied 17 S.Ct. 1336

  Rogers v. Koons, 960 F.2d 301(2d Cir. 1992)

  Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)

  Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)

  Thomson v. Larson, 147 F.3d 195 (2d Cir (N.Y.)1998)
  
  

Reprinted with the kind permission of Georgia Harper.
Georgia Harper, University of Texas System

Comments to Georgia Harper
gharper@utsystem.edu