New (and not so new) resources June 2, 2009
Posted by Kevin Smith in : Copyright Information Notes, Copyright Issues and Legislation, Fair Use, User Generated Content , 2commentsI am delighted to be able to link to a whole new group of resource for understanding and teaching others about copyright law and user rights. Since most of these resources are video, they offer a nice supplement to the text resources I have listed here and here.
First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation. This is a full-scale online curriculum designed to teach students about copyright, It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.
Second is what I like to call the most boring seven minutes on YouTube. I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim. It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting. If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.
Next is this video from JISC on Intellectual Property Rights in Web 2.0 world. It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail. One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision. Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.
The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video. The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy. Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining. This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media
Sorting out exceptions February 5, 2009
Posted by Kevin Smith in : Copyright Information Notes, Fair Use , add a commentA couple of recent issues that have crossed my desk have drawn my attention to an aspect of copyright law that has the potential to be very confusing. Many people recognize that copyright works by granting a bundle of exclusive rights to a copyright holder for a limited time, then defining a long series of exceptions to those exclusive rights so that the rights holder’s control is balanced with opportunities to use previous works in the creation of new intellectual content. The difficulty that often arises is in recognizing which exceptions apply to which rights and, therefore, to which situations.
Most of the copyright exceptions are exceptions to a specific right or rights within the copyright bundle. If an activity implicates other rights than the one(s) to which the exception applies, the user should not rely on that exception. The copyright bundle consists of five basic rights – reproduction, distribution, public performance, public display, and the making of derivative works. The copyright holder has the exclusive right to authorize or deny these activities UNLESS an exception applies. So let’s look a couple of examples and see how the exceptions apply to certain rights in the bundle but not to others.
The face-to-face teaching exception is familiar to most teachers who want, for example, to show a film in their classrooms; it allows performances as long as the copy that is screened is legally made. This is an exception to the performance right (and display right, in the case of art slides, for instance), but not to the other rights in the copyright bundle. If the teacher want to transfer the film from VHS to DVD (thus making a copy and implicating the reproduction right), or wants to hand out those DVDs to every student (implicating the distribution right), or is making a compilation of film clips (implicating the derivative works right), the face-to-face teaching exception, by itself, will not authorize those activities. Other exceptions may apply – the format conversion and the compilation of clips are both good candidates for fair use – but it is important to recognize the limits of the face-to-face performance exception and recognize that other justifications must have to come into play.
I recently responded to a question about using an ELMO projector to project the pictures from a childrens’ book for a library’s reading time. Part of the “first sale” exception (section 109(c)) covers this activity nicely; it is written to allow just this kind of display of a legally obtained work. But it does not cover an almost identical inquiry about scanning the same pictures into PowerPoint for display. Why not? Because an ELMO does not make a copy of a work, while a scanner does. The 109 exception allows display but does not authorize reproduction. Again, other exceptions may allow the PowerPoint projection, but they must be exceptions that permit reproduction in addition to display.
Applying copyright exceptions requires attention to exactly which rights any given exception applies to, as well as an awareness of how certain technologies function vis-à-vis the different rights included in the copyright bundle. And most important, an awareness of the limitations inherent in each of these exceptions reminds us how important fair use is. Fair use is the only exception in our copyright law that is not limited in one way or another to specific rights; when it applies, it can provide an exception to any of the copyrights. In the “Pretty Women” case alone, fair use provided an exception to the reproduction, distribution, performance and derivative works rights. It is precisely because fair use is so flexible that it is vitally important in education; in several of the cases suggested above, where other exceptions have reached their limits, it is fair use, applied carefully and thoughtfully, which may allow the activity.
Copyright in laws September 10, 2008
Posted by Kevin Smith in : Copyright Information Notes, Copyright Issues and Legislation , 1 comment so farWhile it could be said that trademark and patent are close cousins to copyright law, there is no such thing as copyright’s in-laws. The real question is, should there be copyright in laws?
Most people know at least vaguely that government works in the US are not subject to copyright protection. Of course, nothing is ever that simple. First, section 105 of the copyright law says that there is no copyright protection in works of the United States government, meaning only works created wholly by government employees in the course of their employment are unprotected; works created by others on behalf of the govenrnment may still have copyright (as I noted a few days ago here). Second, section 105 says there is no copyright in works of the United States government, meaning that the law is silent about works created by state and local governments. And that, apparently, is the rub.
Some time ago, the state of Oregon tried to assert that it held copyright in its state code of laws. After a brief skirmish with some advocates of open government, Oregon backed down from this claim, saying that, at least, it would not enforce any claim it had.
Now comes news that the same person who took on Oregon has been told to stop posting the legal code of the State of California — there are reports from Slashdot here, Techdirt here (with lots of generally unenlighting comments), and the Santa Rosa Press-Democrat here.
The argument against states and local governments asserting copyright in their laws and regulations is pretty straightforward — people should be able to access the rules of communal living that they are expected to follow. California, on the other hand, has an interesting reason for making its copyright claim; the $800,000 it raises by selling print copies and digital access to its state code benefits the California taxpayer. And no matter what our vague intuitions might tell us, the federal copyright law does not prevent such a claim.
In fact, copyright claims even in national laws are not unusual; most countries with roots in the British empire, other than the US, have some version of “Crown Copyright.” But in the United States, at least, it is clear that the Copyright Office does not look kindly on these claims for protection in state and local laws, even if they are not excluded by statute. The Compendium of Copyright Office Practices informs examiners in the Office that:
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
So the Copyright Office would decline to register such works as a matter of public policy, which would complicate any attempt by Oregon or California to sue to enforce the copyright claim. It also speaks volumes about the claim that copyright claims in public laws are intended to serve the interests of the public themselves; the Copyright Office apparently doesn’t buy it.
The bottom line here is that anyone relying on the absence of copyright in government works has to be careful. Contractors who work for the government but are not federal employees may hold copyright even in US works, and the possibility of claims by state and local governments is very real indeed.
Copyright use case on a Grecian Urn September 6, 2008
Posted by Kevin Smith in : Copyright Information Notes , 6commentsA colleague recently asked my opinion about an interesting question. Would there be any copyright interest held by a museum that was displaying a classical vase for the first time? The root of the question was the idea that if the museum was displaying an object that had recently been unearthed (quite literally), it might be said to be publishing a previously unpublished work.
My opinion was primarily based on the inapplicability of the terms published and unpublished to this situation, but the question offers a broader opportunity to review an aspect of copyright law that seems to confuse a great many people.
One of the characteristics of intellectual property rights ownership is that it is entirely independent from the ownership of a physical object that embodies intellectual property. If I purchase a painting by a contemporary artist, I do not automatically get the intellectual property rights — the right to make copies or to distribute those copies, for example — along with the ownership of the object; I must contract for the transfer of the intellectual property rights, if I can, separately from the purchase of the object.
Likewise, owning an object in the public domain, like a classical vase, does not create any intellectual property rights. Simply by owning and displaying the vase the museum does not gain a copyright interest where there was no such interest before.
Displaying the vase will not have any affect on the nonexistence of copyright and probably would not meet the (vague) definition of publication. In any case, publication no longer makes much difference under our law. By current U.S. standards, an anonymous, unpublished work is protected for 120 years from creation and an anonymous work that is considered published would be protected for 95 years from creation; in either scenario, an object from classical antiquity would be well past any possible copyright protection.
3 quick caveats to this point:
1. A photograph of the vase could well have copyright protection, if it was sufficiently original to vest copyright in the photographer. Artistic decisions about lighting, angle, exposure and such probably do invest a photograph of a 3D object with the requisite level of originality.
2. Museums often charge for images of public domain objects in their collections. Even when the images do not have sufficient, separable originality to provide copyright protection, such charges can be based on the ability of the museum to restrict access to the unique physical object. For this reason many museums prohibit photography, in order to be the sole source of images of a public domain object on display.
3. There many be restrictions on the ownership of a vase from classical antiquity based on laws in the country of origin about protecting that country’s cultural patrimony, as well as international treaty obligations to which the US is a party.
More generally, this question is a variation of one I hear quite often, about whether a republication of a public domain text or image somehow revives a copyright interest in that work. Except for a small window of unpublished works that were created before 1978 and then published during the five years between 1997 and 2003, the answer is always no, not if the regular term of copyright protection has run or the work is otherwise in the public domain.
Copyright FAQ for government works. September 3, 2008
Posted by Kevin Smith in : Copyright Information Notes, Copyright Issues and Legislation , add a commentThere is a nice website, just updated in August, that addresses a great many copyright questions as they relate to works created by the U.S. federal government, under contract with the government, or using government funding. The site is created by CENDI (the Commerce, Energy, NASA, Defense Information Managers Group), and also provides brief answers to more general copyright questions under the categories of “Glossary of Terms,” “Copyright Basics,” and Use of Copyrighted Works.”
For scholarly authors, however, the biggest value of the site is the section answering questions about copyright in works created under a federal grant. As the website explains, copyright in works created using government grant money does not automatically belong to the government, but contract terms may place some restrictions on the use of those rights by the author. This is exactly the case with the NIH Public Access policy, where copyright is owned by the author of each article that is based on funded research, but it is subject to a contractual requirement that a non-exclusive license be given to the NIH for inclusion of the work in PubMed Central.
Also, the site offers some guidance about using government works, an issue that often arises for scholars around everything from government survey maps to census data to photographs taken by active military personnel. This is not really the place to gain all of one’s knowledge about copyright, but it is an excellent source for understanding the complexities of using government works and creating works under various agreements with the government.
