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Copyright Law, Intellectual Property, and
What Is Free on the Web
EDC 668 - Dr. Michael Johnson
Team Members: Brenda Lewis, Derrel Fincher,
Scott Wilkinson, Barb Garnett |
Assignment: You are a technology director for your organization. What
are the factors you must consider in relation to copyright to protect the
individual and the organization?
Fair Use (Scott Wilkinson)
Assessing Ownership and Obtaining Permissions
(Brenda Lewis)
Obtaining Copyrights and Infringement Penalties
(Barb Garnett)
Distance Learning and Electronic Media
(Derrel Fincher)
Resources
Fair Use
Organization/Individual Issues
As defined by US Code, Title 17, Section 107:
...the fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that section, 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 -
- the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair
use if such finding is made upon consideration of all the above factors
| Individual |
Organization |
| Generally, Fair Use guidelines are the same for
individuals as they are for organizations. However, individuals need to be
aware that "classroom use" does not alone guarantee fair use. Several sites
have good fair use rules, but
Stanford University Libraries Copyright and Fair Use Information
addresses the main issues. |
Organizations should maintain a copyright
policy that addresses the following:
- Liability
- Infringement
- License agreements
- Fair Use
- Use of copyrighted materials
- Written
- Video/Film/Sound Recordings
- Computer software
- Musical scores
- Obtaining permissions
- Royalties
The
Fair Use test has several questions that can be used for determining
whether a use is fair use. |
Obtaining Permissions: The following organizations maintain comprehensive
lists of owners of copyrighted material.
Assessing Ownership and Obtaining Permissions
| Individual |
Organization |
Ownership
- Author is owner. If more than one person contributes to the creation
of a work, the work is owned by them jointly.
- Joint authors should agree (in writing) that they mutually intend to
share ownership of the work. A contract is highly advisable.
- Ownership of copyright is dependent upon purpose of the work.
Education and not-for-profit uses differ from for-profit use.
- Provides exclusive rights to make copies, distribute, display, and
perform works publicly.
- For works created during or after 1978, copyright ownership ends at
the expiration of 70 years after the author’s death.
- For works created before 1978, but not published, copyright expires 70
years past the life of the author or in the year 2003, whichever is
longer.
Work Made for Hire
- Ownership of illustrations or other supplemental contributions should
be specifically documented.
Transfer of Ownership
- Owner/author is free to assign copyright to anyone.
- Copyright ownership may be bequeathed by will or transferred as
personal property.
- Ownership can be sold or transferred via copyright assignment (a
contract transferring copyright ownership from the author/artist to
someone else.
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Ownership
- Copyright of each separate section of a work is distinctive from
copyright of the entire collection.
- Simply paying for a work does not automatically entitle an
organization to own the work.
- Employer owns the work when it is created by an employee within the
scope of employment.
- Employer owns the work when such is specified pursuant to contract
with assignment.
- For works published before 1978, copyright is in effect 95 years after
publication. If published before 1964, 28 years after publication + 67
more years if renewed.
Work Made for Hire
- Considered so if it fits into one of the following categories:
- contribution to a collective work
- part of an audiovisual work
- a translation
- a supplemental work
- a compilation
- an instructional text
- a test
- answer material for a test, or
- an atlas
- A “Teacher Exception” may apply to the Work For Hire rule.
Transfer of Ownership
- Ownership of all aspects of the copyrighted work must be considered
before publishing, using, or accepting transfer of a copyrighted work.
- Many publishers require assignment of copyright is as a condition of
publication.
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Permissions
- Should be obtained for use of works that do not fall into the Fair Use
category in order to avoid infringement penalties.
Contacting the Owner
- You can contact copyright owners directly, if you know who they are.
Writing a letter, calling, or emailing are appropriate ways to initiate
contact.
Confirming Authority to Grant Permission
- Be sure that the person giving you permission is authorized to do so.
Written Permission
- Your permission should be in writing and should clearly describe the
scope of permission. Precisely describe how you intend to use the
copyrighted work. Vaguely worded permissions may not cover your intended
use.
- If you receive oral permission, carefully document the conversation.
Then send a confirming letter, asking the owner to initial it and return
it to you if it accurately reflects your agreement.
Unidentifiable/ Unresponsive Owner
- Unsuccessful attempts to identify and contact a copyright owner do not
indemnify you from liability for copyright infringement. It is advisable
to not use works of authors whom you unable to obtain permission to do so.
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Permissions
- Permission must be obtained before copyrighted materials are used to
(1) Make a copy, (2) Create a derivative work, (3) Distribute a work, (4)
Publicly perform a work, or (5) Publicly display a work.
- Libraries, educational institutions, and government agencies are
entitled to Special Rights that exempt them from certain permissions
requirements.
- Establish Connections to copyright collectives.
Contacting the Owner
Confirming Authority to Grant Permission
Written Permission
- Organizations should develop a policy regarding copyright procedures
to protect against infringement liability and monetary damages. Employees
should be educated regarding these policies.
Unidentifiable/ Unresponsive Owner
- Considerations favoring use of materials for which permissions have
not been obtained must be weighed against the consequences that may be
suffered as a result of doing so.
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Obtaining Copyrights and Infringement Penalties
| Individual |
Organization |
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Obtaining Copyrights:
- Copyright registration is NOT required for copyright protection, but it
does offer advantages to those who go through the registration process. Advantages
include recovery of statutory damages (up to $100,000) and attorney's fees if
the registration takes place within three months of the creation of the work
and prior to infringement of the work. Registration also provides documented
evidence of copyright validity if infringement takes place and a court case
follows.
- Registration can take place at any time during the life of the copyright.
- Registration steps: (1) application form (2) nonrefundable filing fee -
check here for current
fee (3) the work being copyrighted (which will not be returned) Requirements
for the work submitted can be found
here.
- Copyright applications may be submitted by the author, a person or organization
who has current ownership rights, people who own rights to the work that have
been separated from rights to the entire work, and authorized agents of any
of the above and they do not have to prepared by or filed by a lawyer.
- Copyright forms can be found on the Internet
here.
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Obtaining Copyrights:
- While the process for obtaining copyrights for an organization seems to
be basically the same as for an individual, the following points should be understood:
- the copyright for a work belongs to the author of the work (or his designee);
however, if an employee creates a work as part of his employment, the author
is considered to be the author IF "the parties expressly agree in a written
instrument signed by them that the work shall be considered a work made for
hire." (Who Can Claim Copyright)
- co-authors of a work are also co-owners of the copyright
- publishers of collected works may obtain copyright on the entire publication;
however, individual works contained within it remain copyrighted to individual
authors.
- Different institutions handle copyright issues with their employees in
different ways, but employees should be asked to sign a document concerning
ownership rights upon employment if authorship / ownership is a consideration
for the position.
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| Infringement Penalties: Up to five years
imprisonment and fines of up to $250,000 or both for first time violators of
copyright laws; those previously convicted of infringement may receive up to
ten years imprisonment, a $250,000 fine, or both. (Criminal
Resource Manual 01852) |
Infringement Penalties: While no distinction
was found between penalties for organizations and individuals, the government
must prove "(1) that a valid copyright; (2) was infringed by the defendant;
(3) willfully; and (4) for purposes of commercial advantage or private financial
gain." (Criminal
Resource Manual 1847) |
Distance Learning and Electronic Media
Five rights are granted by copyright
- the right to reproduce the copyrighted work;
- the right to prepare derivative works based upon the work;
- the right to distribute copies of the work to the public;
- the right to display the copyrighted work publicly;
- the right to perform the copyrighted work publicly.
Although all of these rights may be affected by distance learning, the first
four are most likely to be an issue for distance learning. Factors in electronic
media are the same as for distance education, with the addition of factors affecting
the fifth (public performance) aspect Electronic media also covers software,
which requires a small section on its on.
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Individual
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Organization
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Distance Learning:
- Read your contract or course enrollment form before signing to determine
if you are waiving any rights to your work.
- If using other material, make sure it follows fair use guidelines otherwise
the organization may not be permitted to defend the individual against lawsuits.
- Be aware whether material is being posted in a public area or protected
area as fair use determination is also dependent on how much access the public
has.
- Determine who owns the copyright to material you produce for the course,
whether you are the instructor or a student.
- Be aware of institution policies on using material created by others in
the course and assure that you have received permission to use those materials.
- For maximum protection of important works, file for copyright and pay
the fee.
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Distance Learning:
- Establish protected and limited access areas that may be used for "fair
use" materials.
- Establish ethical guidelines for students, instructors, and employees
to follow in terms of fair use and copyright infringement.
- Establish clear explanations regarding copyright ownership of materials
used in distance learning, including content added in newsgroups and chat
rooms.
- For international distance learning efforts, be aware that laws differ
from country to country. This may necessitate changing course content or access
if students are primarily in a country different from the one the course was
designed for.
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Electronic Media—General
In addition to those above, understand the organization's policies on public performance and
copyright.
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Electronic Media—General
In addition to those above, understand the concept of “public performance” and have guidelines that
help students, instructors, and employees determine if their use of a particular
piece is public performance or permitted under fair use guidelines.
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Electronic Media–software:
- Assure that all software not provided by the company is properly licensed
for its intended use.
- Be aware of the provisions of shareware and freeware, which may require
users in a corporation or organization to pay a fee for the use of the software,
versus individual or educational users.
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Electronic Media–software:
- Assure that all software used is properly licensed.
- Set policies about what software employees may install on their computers.
- Set policies about whether software may be copied for home use. (Some
software licenses permit employees to install the software at home under certain
conditions.)
- Consider purchasing license management software that only permits the
number of software programs equivalent to the number of valid licenses to
be active at any one time. However, the organization does have to plan for
how they will handle times when demand is higher than the number of permitted
licenses.
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