Copyright & Licensing For Librarians & IS Professionals Paul D. Callister, JD, MSLIS Director of the Leon E. Bloch Law Library & Associate Professor of Law Email callisterp@umkc. edu http: //www 1. law. umkc. edu/faculty/callister/presentations/copyright. mnl. 3. ppt © 2008, Paul D. Callister. This work is licensed under a Creative Commons Attribution-No. Derivs 2. 5 License. 1
Disclaimer THE FOLLOWING PRESENTATION IS NOT PRESENTED BY A LICENSED ATTORY, BUT IS PROVIDED BY A COLLEAGUE FOR INFORMATIONAL AND DISCUSSIONAL PURPOSES ONLY. IT DOES NOT IN ANY WAY REPLACE OR MODIFY UNIVERSITY OR DEPARTMENTAL POLICY AND REGULATIONS, NOR THE OBLIGATION TO COMPLY THEREWITH. INFORMATION HEREIN SHOULD NOT BE CONSTRUED AS OR REPLACE THE NEED TO CONSULT AN ATTORNEY OR UNIVERSITY COUNSEL. 2
Survey: Is it ok to. . • Copy anything so long as it doesn’t have a ©? _____ • Tape your favorite episode of Pushing Daisies from the TV and add it to your library ? _____ • Post copy of law review article downloaded from Hein Online that was authored by a university law professor, if he or she retained the copyright? _____ • Make a copy of the same article if it was downloaded from Hein Online by UMKC Law Library and then sent to you via its document delivery service? • Make a copy of a single section from Nimmer on Copyright for a faculty member? _____ • Send a copy of a chapter of Nimmer on Copyright in print to another university library, with whom you share an interlibrary loan network, via email and in a PDF format? _____ • Same as previous question, but to save work, you use a 3 digital version from Lexis. Is it ok? _____
Survey: Is it ok to. . • Archive for preservation another library’s web newsletter? _____ • Archive tax regulations from a web site in Saudi Arabia? _____ • Create an in-house training tutorial for Lexis and Westlaw using screen shots on which you have drawn arrows? _____ • Use a sound recording from a 1935 radio program if you bought the recording but cannot, after considerable effort, locate the rights holder for permission? _____ • Use software to “snippet” a DVD version of Legally Blond? _____ • Same thing, but you take the snippet from a video tape? _____ • Use any photograph from the Web in a presentation as long as it comes from a “. gov” site? _____ • Copy and distribute this presentation? _____ 4
License? Get Permission? License: Is Restriction Enforceable? Copyright: Lacks Originality? News, Ideas or Facts? Public Domain? Out of Copyright? U. Policy? ? ? Copyright: Fair Use? § 107 or Library Exemption? § 108 Blue = Yes Red = No Orphan Work? (Non. License Only) Yes Stop ? Circumvention? § 1201 DMCA 5
Framework of Licensing Issues • • Choice of Law and Forum Rights & Obligations Warranties & Indemnification Price Default & Remedies Termination & Cure Formation & Modification Software License Agreement Sticker by John Pastor. Source: http: //www. flickr. com/ph otos/ttkgeek/227282484 0/ ‘House’ Frame by Ray Tibbits. Source: Flickr, at http: //www. flickr. com/photo s/aparejador/1393082783/ 6
Check List of Rights that Might be Contracted Away • Facts, ideas and noncopyrightable material • First sale privileges (lending implications) • Out of copyright (time) • Reverse engineering • Fair use • Teach Act display and performance rights • Library archival rights • Statutory damage limitations • Criticism • Class actions • Consumer protection Clauses • Forum selection • Choice of law 7
The Law - Copyright 17 U. S. Code § 106 The owner of copyright. . . has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies. . . of the copyrighted work to the public. . . ; (4) in the case of literary, musical, dramatic. . . and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic. . . pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 8
Originality in Derivative Works Problems with Cases Reporters • Head notes – Yes • Key Numbers -- Yes • Syllabi – Yes • Attorney’s Names – No (Second Cir. ) • Emended Citations – No (Second Cir. ) • Subsequent Case History – No (Second Cir. ) • Pagination – ? (Divided Second Cir. and D. C. Cir. ) See 1 -3 Nimmer on Copyright § 3. 03 9
The Law – Copyright – Fair Use 17 U. S. Code § 107 The fair use of a copyrighted work, including such use by reproduction in copies. . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 10
The Law – Copyright – Library Exemption under § 108 • Not just for non-profit libraries. “Libraries within industrial, profitmaking, or proprietary institutions are also eligible for the exemption as long as the reproduction (and distribution) was itself not commercially motivated. ” 2 -8 Nimmer on Copyright § 8. 03 • Collection must be open • Copy notice requirement • Single copy limit - “This does not mean, however, that a single reproduction (and its distribution) exhausts the exemption with respect to the particular work reproduced. Rather, there may be repeated reproduction and distribution ‘of a single copy or phonorecord of the same material on separate occasions. ’” 2 -8 Nimmer on Copyright § 8. 03 11 • Amendment of Section 108
DMCA 17 U. S. Code § 1201 (a)(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title. . (3) As used in this subsection-(A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner. . 12
Other DMCA Issues • Copyright Office Rule-Making Exceptions • “Take Down” Notices and Limitation of Liability – 17 USC § 512(a), (c), (d), (g) • Subpoenas – See Recording Indus. Ass'n v. Charter Communs. , Inc. (In re Charter Communs. , Inc. ), 393 F. 3 d 771 (8 th Cir. Mo. 2005) (vacated lower court order granting subpoenas to ISP to identify infringing subscribers on grounds that ISP was mere conduit under § 512). – Contra Arista Records, LLC v. Does 1 -12, 2008 U. S. Dist. LEXIS 82548 (E. D. Cal. Sept. 4, 2008) (granted leave to subpoena ISP to identify infringers) 13
The Law – Copyright - Penalties 17 U. S. Code § 504 (c) (Civil Penalty) (1) The copyright owner may elect, at any time before final judgment is rendered, to recover. . . a sum of not less than $ 750 or more than $ 30, 000 as the court considers just. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $ 150, 000. 18 U. S. Code § 2319 (Criminal) (b) Any person who commits an offense under section 506(a)(1)(A) of title 17 -(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180 -day period, of at least 10 copies. . . which have a total retail value of more than $ 14 2, 500. .
Best Practices – Additional Licensing and Copyright Resources • University of Missouri Collected Rules & Regulations, 100. 010 Use of Copyrighted Materials in Teaching and Research (http: //www. umsystem. edu/ums/departments/gc/rules/business/100/010. shtml) • University of Texas Crash Course in Copyright (http: //www. utsystem. edu/OGC/Intellectual. Property/cprtindx. htm) • Lib. License (at http: //www. library. yale. edu/%7 Ellicense/) • AALL Licensing Principles for Electronic Resources (at http: //www. aallnet. org/committee/reports/Licensing. Principles. Elec. Resou rces. pdf) • Copyright Clearance Center (at http: //www. copyright. com/) • Paul D. Callister, Digital Content Licensing, ENCYLOPEDIA OF LIBRARY AND INFORMATION SCIENCE 873 (2 nd ed. 2003), available at http: //www. informaworld. com. ezproxy. mnl. umkc. edu/openurl? genre=arti cle&isbn=978%2 d 0%2 d 8247%2 d 2075%2 d 9&volume=1&issue=1&spag e=873 (3 rd edition will be out soon) 15
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