The Copyright Path
Changing Needs and Copyright Solutions
THE CHAPTERS OF this book are structured to provide a graceful and systematic walk through the principles and functioning of copyright law. Although the journey may be rough at times—thanks to a law that too often does not keep a straight path—the expedition should be intellectually engaging as well as practical. Indeed, working with copyright law in the context of applied situations is less of a quest for answers than it is a path that takes you toward a resolution, or at least a decision, about individual aspects of copyright. Consider one of the most common copyright questions: You, or a colleague, are working on a project that involves the reproduction or other use of a book, film, song, or other work created by someone else. The first copyright question is often simply phrased, “Is this fair use?” If you take the question at face value and go straight to analyzing fair use, you could find yourself on a steep and rutted road, edged with the thistles and thorns of a gray law.
In contrast, by reflecting on the entire copyright trail and planning the trip from the beginning, you might find various stops along the way that give you a better, more direct, and even easier answer than you would find by starting with fair use. You might determine:
• That the work in question is not protected by copyright at all. It may be a governmental work, or the copyright may have expired.
• That the use is not among the protected rights of the copyright owner. You might, for example, be making a private performance of music, while the owner has rights only with respect to public performances.
• That the intended use is within another statutory exception in the Copyright Act. If you can fit your use within one of the detailed provisions for classroom use, library copying, or backing up software, you will probably find a more satisfactory answer than you will with fair use.
Any one of those possibilities is a clearer and more secure answer than you will likely find with fair use. This book should accordingly help you see the issues and possibilities of copyright unfold systematically as they apply to your real needs. You should also see how the issues change with the growing innovation and complexity of education, research, and technology. This book is about law, but the real subject is teaching, research, innovation, and other spirited pursuits of educators and librarians. Yet because these pursuits constantly involve creating and using copyrighted works, legal issues steadily arise. The issues change and grow with each new variation. Change the materials you might be using, or change the method or circumstances of their use, and you may well encounter a different set of issues and possibly different outcomes under the law.
Notice that this book is exploring issues and not necessarily problems. Not all copyright questions are problems. In fact, some copyright questions are relatively easy, and many lead to good news. For example, copyright broadly permits some uses of work in the classroom, and it provides that all works eventually enter the public domain, where they may be freely used. Other questions are tougher, and not all will lead to a satisfactory conclusion. But anyone seeking to enjoy the benefits of the law will need to take a little time, learn a bit about the law, and make a determination about whether you are working within the terms and boundaries of the rules. Reading this book should be a great stride in that direction.
Let’s start the journey. Throughout this book you will find a variety of cases, examples, and scenarios intended to reveal the practical application of copyright law in ways that are relevant to educators, librarians, researchers, and others. Before delving deeply into the chapters and details of the rest of the book, a familiar and evolving scenario can provide a meaningful introduction as well as a map through the upcoming chapters.
Paths present choices and obstacles.
Begin the scenario with simple and familiar facts. With each additional fact will come new questions about copyright, and the text boxes will highlight key points and lead you to other chapters in this book for more information and guidance.
Scenario A
You teach a college course on English literature, and you ask your students to buy and read the book Pride and Prejudice.
One of the curses of copyright is that you start to see issues everywhere. In even the simplest situation you have copyright questions—at this stage you only have questions, not problems. You are proposing nothing that will violate the law, but to get to that conclusion systematically and accurately, we have to sort through a few copyright issues.
Is the book protected by copyright?
• Chapter 2 makes clear that most original works are protectable under copyright.
• Chapter 4 surveys the law of copyright duration, and a book that was first published in 1813 is surely in the public domain.
If the work were still protected, would buying or reading a copy be a violation of copyright?
• Chapter 6 surveys the rights of copyright owners, and simply reading a book is not on the list. On the other hand, a copyright includes the rights of distribution of copies, so the bookstore may be infringing with each sale.
• Chapter 7 is an overview of exceptions to the rights of owners, and the first sale doctrine is a major limit on the distribution rights, enabling bookstores to sell copies and libraries to check out books and more.
Scenario B
To give your students a different perspective of the story, you would like to show the recent film version of Pride and Prejudice to the entire class.
Is the motion picture protected by copyright?
• Chapter 2 emphasizes that copyright protects an extensive range of materials, including text, sound recording, images, software, and movies.
• A version of the movie was released in 2005, and chapter 4 shows that it has many years of copyright protection still ahead. On the other hand, the 1940 version is likely still protected, but it could be in the public domain if the copyright owner did not comply with the formalities required at that time. Chapter 4 will take you step-by-step through that possibility.
Does showing the motion picture violate copyright?
• Chapter 6 itemizes the rights of copyright owners, and you may be making a public performance of the movie.
• Chapter 6 includes mention of Section 110(1) of the Copyright Act, a statute that broadly permits showing a film in the traditional classroom. You may find that a specific copyright exception is enormously important for your teaching.
Look at what is happening to our scenario. The simplest version is rich with issues and subissues. You are not going to jail and probably will not even get a nasty letter from a Hollywood lawyer. But to know with confidence that you are acting within the law, you need to be astute about copyright. To get the best “answers,” you should follow a systematic path, starting at the beginning.
Going Digital
You do not want to take valuable class time to show the film in class, so you begin to explore new technologies and alternatives for making it available to students to view on their own time. Adding or changing the facts will usually give rise to new questions.
Scenario C
You would like to show the film, not in the ordinary classroom but through the course management system (such as Blackboard or Moodle). Students log on and the video is streamed to their computers at any location. Students have the advantage of setting their own schedule and being able to study the film more closely by reviewing and selecting scenes for closer study.
Does copyright law permit you to digitize, clip, and post some or all of a motion picture for your students to study? Actually, you have at least three possibilities for lawfully delivering the video clips.
• Chapter 6 notes the importance of Section 110(1) of the Copyright Act. Although it broadly allows performances of works in the classroom, it probably will not apply where you are making copies and posting them to a server.
• Chapter 12 examines Section 110(2), also known as the TEACH Act. If you can meet all of its requirements, this statute permits use of “reasonable and limited” portions of audiovisual works.
• Fair use is a vital option. Chapters 8 through 11 explore fair use in detail and suggest how it may apply, particularly to portions of works in a limited context.
• You might supplement the film clips with historical works, such as photographs and manuscripts. If these materials are unpublished archival materials, chapter 17 summarizes distinctive rules about protection, duration, and fair use.
• You might also focus on the film score and related musical works and recordings. Chapter 15 examines the copyright rules related to musical compositions and sound recordings.
You have studied the TEACH Act and fair use, and you conclude that you are simply not able to fit your use of the copyrighted film into any of these exceptions. Do you still have any choices?
• One obvious choice is to secure permission from the copyright owner. Chapter 18 offers pointers for locating owners and securing permissions. Sometimes permission is the most realistic or even necessary alternative.
• Chapter 18 also suggests as a strategy that you might need to rethink your plans. You might have an exact plan or project in mind, but in light of copyright considerations, you may need to reconsider the materials you are using and exactly how you are using them.
Scenario D
Perhaps you have studied your needs and the applicable copyright law, and you confidently conclude that you are within fair use or the TEACH Act for your use of the film. You put the DVD into your computer in order to copy selected clips, only to discover that the disk is embedded with a copy protection code that prevents making the clips.
You find on the Internet that you can download software that allows you to bypass the protection code and make the copies. If your use of the film is lawful and within fair use, are you allowed to crack the protection code?
• Chapter 16 examines the complex and problematic law barring the circumvention of technological protection measures. You may be running afoul of that law.
• Chapter 16 also surveys exceptions to the anticircumvention law. Unfortunately, the exceptions are tightly limited, so you should study the details carefully. A new regulatory exception from the Library of Congress opens an important possibility.
The Library’s Role
The libraries at your college or university, as well as the public library in your neighborhood, provide essential support for your research and instructional planning. The film versions of Pride and Prejudice that you plan to use are from the university library’s collections. You also find journal articles, photographs, music, and many other works that you would like to make available to your students. For many of these materials, you probably need to revisit all the foregoing questions about copyright protection, the public domain, classroom performance, the TEACH Act, fair use, and permissions. The library is also willing to provide various services that often involve making copies and delivering content to you or to your students. When the library provides services, the librarians need to consider a few additional copyright issues.
Scenario E
The librarians would like to make copies of some of the materials that you need for teaching, research, and other academic work.
Is the library allowed to make copies of various works and give them to you for your teaching and research?
• Chapter 13 details the conditions under which a library may make copies from the collection pursuant to Section 108 of the Copyright Act. Section 108, however, does not apply to all types of works, so the library may still need to rely on fair use or permissions when it copies some materials.
• Your local library may not have all of the materials you need; they will need to request copies from another library. Chapter 13 specifies the conditions under which the library may receive copies of some materials from another library as part of interlibrary loan arrangements.
Some of the materials in question are no longer on the market or are already damaged. One of the films is on a VHS tape; VHS players are hard to find today, and the tape quality degrades with each use. Can the library make copies of these materials?
• Chapter 13 also examines the provisions of Section 108 that allow a library to make copies of unpublished works for purposes of preservation or security. This provision generally applies to manuscripts, photographs, and any other work that is not published.
• Section 108 also allows a library to make copies of published works that may be damaged, deteriorating, lost, or stolen. These statutes have various conditions and requirements, but they offer important opportunities. If the VHS movie is no longer on the market, the library may be able to make up to three copies of it. Chapter 13 outlines the details.
• Section 108 further permits a library to make copies of works if the format has become obsolete. The VHS format may not be obsolete today, but it will be someday soon. Again, chapter 13 specifies the circumstances when a library may make the replacement copies.
Becoming an Author
You have become fascinated by these copyright issues (who couldn’t?), and you decide to do some additional research and write a journal article on the quirks and challenges of copyright in the academic setting. You become known as something of a copyright expert around campus and get appointed to chair the policy-making committee for the library and the university. You write a document outlining the policy of your institution on fair use issues.
Scenario F
You are the sole author of the journal article, and it has been accepted for publication in your first choice of journals. Congratulations!
But who owns the copyright in the article?
• Chapter 5 lays out the general rule that the author of the original work is the owner of the copyright.
• That chapter examines the doctrine of work made for hire, its application to academic work, and the importance of university policies.
• Chapter 5 also explores publication agreements and the possibility that they may include a transfer of the copyright. The copyright may have been yours initially, but be careful about what you sign.
• That same chapter further raises the prospect of open access and alternatives for publication and copyright, such as Creative Commons.
• Regardless of who owns the copyright, the publication agreement can clarify the specific rights of use that you might retain. Negotiate and draft the agreement carefully!
You chaired the committee and drafted much of the policy on fair use, but several of your colleagues had a hand in writing portions of it. Who owns the copyright in your institutional policy?
• Chapter 2 examines the broad scope of copyright. Even a copyright policy issued by a library or college is most likely copyrightable.
• Under the general rule in chapter 5 you and your colleagues may be the copyright owners. Together you may have a joint copyright in the document.
• Preparing the policy was likely one of you job assignments, and as such it is likely a work made for hire. Chapter 5 explores the significance of that determination.
• Chapter 5 surveys options for copyright management, such as Creative Commons, and CC may be a good option for handling and sharing the copyright in an institutional policy or other document.
Strategies for Copyright Decisions
Finding the right trail through the law is clearly essential to any successful application of copyright. In addition to learning the law, however, you also need to develop an awareness of strategies and a process of decision making in an environment that is thoroughly affected by copyright. Copyright is, after all, the law. It comes with mandates and opportunities, rights and responsibilities. In the spirit of this book, most of your decisions should be centered on making a proper—and sometimes creative—application of copyright in furtherance of teaching, research, and library services. One cannot deny, however, that copyright decisions also raise risks and can lead to some (potentially) scary penalties.
Think back to some of the scenarios examined above. You want to clip excerpts from a motion picture and post them to your course management system for students. Consider just the question of whether you are acting within fair use. Chapters 8 through 11 provide considerable substance of the law and examples for thinking about the factors of fair use. But in addition to the substance of the law is the process of decision making. You are one person, holding your job and executing your duties, on the staff of a library, college, or university. Is copyright your responsibility? Are you the right person to make the decision about fair use?
One way to think about those questions stems from one basic legal principle about copyright: the person who makes the copies or other uses of a work is the first person responsible for any infringement that might result. In other words, if you are the one who operates the computer and does the clipping and uploading, you have the immediate responsibility and liability. That would tend to place the decision squarely in your hands.
However, if you are taking action as part of your duties as a teacher, librarian, or other members of the institution, then in almost any typical situation, the liability will be shared upstream with the organization. The question then becomes: Who is responsible for making legal decisions for the organization? Put that way, you might start looking up the corporate chart to find the senior officer (or is that already you?) or the connection out to the corporate counsel. You could easily find one of these situations:
No lawyer in sight. In many colleges, universities, libraries, and other organizations, no one is available to help with a lawyer’s view of copyright. Either your organization has no attorney on staff, or the lawyer is not well versed in copyright or is not able to handle multitudes of recurring fair use dilemmas.
Legal help today, but not every day. You may be among the fortunate few with direct access to an attorney, but the access is limited and infrequent. Often a good lawyer will in fact not make every decision. A lawyer might shape the general principles and give guidance for different types of situations, but the daily decisions about individual situations often come back to you and your colleagues. The attorney’s involvement may give you important reinforcement and protection, but you still need to make the final judgments. Chapter 14 of this book should give you some reassurance about your decisions, if you act responsibly and in good faith.
Building a support team. You are hardly alone in your search for copyright advice. Rather than wait for legal support, you may in the meantime find colleagues who have dealt with similar questions. You may find good help from the insights and experiences of directors, department chairs, deans, or other colleagues who have the authority to oversee business decisions or who have experience working with copyright. You might also simply want the support of colleagues and supervisors, but you might still be the one person who knows and cares the most about copyright. Sometimes you need to take the lead as you educate and build a team.
Regardless of which situation you confront, you cannot entirely avoid having a role in copyright decisions. Even complete deference to others is itself a decision. Moreover, if you are the one pushing the buttons on the machine and making the copies, you need to take good care of your own interests. You are, after all, responsible, even if your library or university shares the responsibility with you. Like a soldier on the front line, you might get orders, but in a calm moment you have to decide if the orders are right.
What goes into your decision about copyright? This book will provide a wide range of insights about that question. Naturally you need to base decisions on an accurate and current understanding of the law. The best decisions about copyright also consider much more than just law. They take into account the risks. Is my project limited to my classroom, or will it be on the Web for all to see? Am I using obscure photos from the 1930s or recent professional works with identified photographers? Multitudes of images are available from Flickr and other sources with generous Creative Commons licensing. A good decision contemplates alternatives. If you want the film clips because they are great scenes of London, then perhaps you should look for other clips that might be in the public domain or easily licensed. If you want all your students to study the entire film and it is easily available to buy or rent, then maybe you should expect all your students to acquire the DVD.
You are not avoiding copyright. You cannot. But mix this fact of life into your strategy: you have only a finite number of hours in the day. You cannot make every decision, review every situation, and evaluate every risk. You need to save your “copyright energy” for the situations that demand attention. Copyright must be addressed to implement programs of library services, digitization of collections, innovative teaching, and the management of our scholarship and publication. These are the kinds of pursuit that merit attention, where a careful, informed, and strategic approach to copyright can ultimately advance the needs of copyright owners as well as the researchers, teachers, students, and members of the public who will benefit from access to a wider range of information resources. This book is intended to send you along that path and toward the goal of constructive stewardship and use of copyrighted works.