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Copyright Crash Course wtih Lnk to Copyright Crash Course

Copyright Issues: Multimedia and Internet Resources

Using & Creating

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Georgia Harper

Office of General Counsel
University of Texas System

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Overview

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Why Copyright?

 

What Makes Copyright an Issue?

 

Who Owns What?

 

How Does Analog Fair Use Apply to the Multimedia World?

Using fair use guidelines
 

Specific Multimedia Copyright Issues

The archival collection
I found it on the Internet
Digitizing analog images
Incorporating images into new works
Creating derivative works
 

Protecting Multimedia Creations

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Copyright Management

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Copyright affects you.

Electronic Access Increases Opportunities

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

Electronic Distribution Increases Exposure to Liability for Copyright Infringement

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What Makes Copyright an Issue?

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The Crash Course in Copyright

If you want to use others' works in the creation
of new materials, you need to know a little bit about Copyright.

First, The Basic Scheme

 

The Law Gives Certain Rights to Copyright Owners

 

Fair Use is the "Play in the Joints"

 

Sometimes You Have to Ask for Permission

 

Sometimes You Are the Owner!

Some Particulars

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What Does Copyright Protect?

Original works of authorship fixed in a tangible medium of expression.

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.
Recent changes in Copyright Term Extension Act allow libraries to use certain works in their last 20 years of protection

What Does it Mean to Owners?

Owners have exclusive rights to make copies, create derivative works, distribute, display and perform works publicly.

What Does it Mean to Users?

If the law protects a work you wish to use, you must ask for permission from the copyright owner unless your planned use is covered by one of the law's exemptions, such as fair use.

What is Fair Use?

Wouldn't a crisp, clear answer to that one be nice?
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Ownership

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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

The Employer is the Owner When:

Work created by employee within scope of employment
Work created pursuant to contract with assignment
Work properly documented as a work-for-hire

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
Recent revisions to Section 2.3 and 2.4 of the U.T. System Intellectual Property Policy
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

Regental Policy on Copyright Management

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Fair Use

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If an author creates a multimedia product for limited use within an institution, reliance on fair use is appropriate.

If that same product will be commercialized,
reliance on fair use should be quite limited.

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

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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?

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Applying Analog Fair Use
and Performance Rights
to Multimedia

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

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

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; Michigan Document Services)
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
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

 

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

CONFU Educational Fair Use 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

UT System Rules of Thumb

Section 110(1) (Face-to-Face Teaching) and Section 110(2) (Transmissions) Permit Certain Displays and Performances

Section 110(1) permits display/performance of any work, regardless of medium, in face-to-face teaching
Section 110(2), which authorizes transmissions, only applies to nondramatic, nonaudiovisual literary works, including still images, and music
No right to transmit dramatic or nondramatic audiovisual works

No transmission of rented videos
No transmission of purchased videos
No transmission of 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 Rule of Thumb for Distance Learning
If fair use does not apply, seek permission
Digital Millennium Copyright Act, passed in October 1998, calls 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
Users' recommendations:

eliminate distinctions among types of works that can be transmitted in a secure environment;
exempt copies and distribution that must be done to make a permitted transmission;
emphasize that the exemption has no effect on fair use
Owner's recommendations:

there's no need to change the law;
allowing digital display and performance will lead to massive piracy
licensing (and fair use) should obviate the need for Section 110 exemption entirely

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Specific Multimedia
Copyright Questions

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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?

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 license

Uses permitted by Sections 110(1) and (2)
Multimedia Fair Use Guidelines
Educational Fair Use Guidelines for Digital Images
UT System Rules of Thumb
Getting permission

Digitizing Analog Images

Educational Fair Use Guidelines for Digital Images
Individual requests
Institutional conversions to digital archives
Image management: Understanding your library's concerns
UT System Rules of Thumb

Incorporating Images into New Works

Governed by fair use

Multimedia Fair Use Guidelines
UT System Rules of Thumb

The Good Faith Fair Use Defense

17 USC 504
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 you follow our fair use policy, you will be indemnified by UT System
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.

Tension between the law and artistic traditions (Koons case)
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

Don't confuse likelihood of getting caught with liability for infringement:
They are not the same thing!

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Protecting Multimedia Creations

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Registration Is No Longer Necessary, But Still Advisable

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

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Summary

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Legalities Are in Tremendous Flux

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

Be Conscious of Your Use 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 with Licensing Collectives

Get permission when you need it

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Top | Other Presentations | Crash Course in Copyright
Intellectual Property Section | Office of General Counsel

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Comments to intellectualproperty@utsystem.edu
Last updated: November 23, 2004

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