Transcript Public Domain - Pennsylvania Library Association

Copy!
Right?
October 6, Tuesday
2:15-3:30 p.m.
Calvin Wang
[email protected]
Assistant Professor
Sciences Librarian
Arcadia University
Suburban Philadelphia
450 S. Easton Rd.
Glenside, PA 19048
PaLA Annual Conference 2015
Engage Educate Enrich
October 4-7, State College, PA
Copy! Right?
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Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
2
Copy! Right?
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Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
3
Copyright @ Arcadia
http://search.arcadia.edu
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Copyright @ Arcadia
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Circular 1: Copyright Basics
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Definition
• Copyright is the right of the author of a work
or a designee to make any copies of a work or
control its usage.
• An author can be a writer, artist, composer,
lyricist, playwright, choreographer, a sculptor,
and architect.
• A copy is a reproduction or a modification.
• A usage is a transformation, display, or
performance.
“Basics.” Copyright @ Arcadia. Arcadia University.
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What Makes a Work
Copyrightable?
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It’s an original work of authorship.
It’s a literary, dramatic, musical, artistic work.
It’s in a fixed form.
It’s not mere information, an idea, or common
property.
“Basics.” Copyright @ Arcadia. Arcadia University.
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Protection
• A copyright symbol (©) is not required.
• Protection is automatic as soon as the author
of the work establishes a fixed form.
• Publication is not required.
• Registration is not required.
“Basics.” Copyright @ Arcadia. Arcadia University.
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Copy! Right?
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Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
10
The Four Factors of Fair Use
• Purpose and Character of the Use.
• Nature of the Original Work.
• Amount and Substantiality of the Portion
Used.
• Effect on Use upon the Potential Market.
“Basics.” Copyright @ Arcadia. Arcadia University.
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P: Purpose
Purpose and character of the use, including whether the use is
of a commercial nature or is for nonprofit educational
purposes: Courts look at how the party claiming fair use is using
the copyrighted work, and are more likely to find that nonprofit
educational and noncommercial uses are fair. This does not
mean, however, that all nonprofit education and noncommercial
uses are fair and all commercial uses are not fair; instead, courts
will balance the purpose and character of the use against the
other factors below. Additionally, “transformative” uses are
more likely to be considered fair. Transformative uses are those
that add something new, with a further purpose or different
character, and do not substitute for the original use of the work.
“More Information on Fair Use.” United States Copyright Office. 12
N: Nature
Nature of the copyrighted work: This factor analyzes the
degree to which the work that was used relates to copyright’s
purpose of encouraging creative expression. Thus, using a more
creative or imaginative work (such as a novel, movie, or song) is
less likely to support a claim of a fair use than using a factual
work (such as a technical article or news item). In addition, use
of an unpublished work is less likely to be considered fair.
“More Information on Fair Use.” United States Copyright Office. 13
A: Amount
Amount and substantiality of the portion used in relation to
the copyrighted work as a whole: Under this factor, courts look
at both the quantity and quality of the copyrighted material that
was used. If the use includes a large portion of the copyrighted
work, fair use is less likely to be found; if the use employs only a
small amount of copyrighted material, fair use is more likely.
That said, some courts have found use of an entire work to be
fair under certain circumstances. And in other contexts, using
even a small amount of a copyrighted work was determined not
to be fair because the selection was an important part—or the
“heart”—of the work.
“More Information on Fair Use.” United States Copyright Office. 14
E: Effect
Effect of the use upon the potential market for or value of the
copyrighted work: Here, courts review whether, and to what
extent, the unlicensed use harms the existing or future market
for the copyright owner’s original work. In assessing this factor,
courts consider whether the use is hurting the current market
for the original work (for example, by displacing sales of the
original) and/or whether the use could cause substantial harm if
it were to become widespread.
“More Information on Fair Use.” United States Copyright Office. 15
Fine Print
In addition to the above, other factors may also be considered by
a court in weighing a fair use question, depending upon the
circumstances. Courts evaluate fair use claims on a case-by-case
basis, and the outcome of any given case depends on a factspecific inquiry. This means that there is no formula to ensure
that a predetermined percentage or amount of a work—or
specific number of words, lines, pages, copies—may be used
without permission.
“More Information on Fair Use.” United States Copyright Office. 16
Copy! Right?
•
•
•
•
•
•
Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
17
Code Switching
• Like any discipline, copyright has its own
terminology and definitions that need to be
understood in the proper context.
• Without understanding the code to which to
switch, misunderstandings are bound to
happen.
• YouTube: Key & Peele – Phone Call
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The Influence of Case Law
• What interprets the legislative (statutory)
code? Case law.
• It’s impossible to keep track of all case law, but
there are a bunch that have historically been
particularly influential.
• Various websites track them. Here are 4:
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The Influence of Case Law
“17.18 Copyright—Affirmative Defense—Fair
Use.” U.S. Courts for the Ninth Circuit. U.S.
Courts for the Ninth Circuit, 2013. Web.
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The Influence of Case Law
“Summaries of Fair Use Cases.” Copyright and
Fair Use. Stanford University Libraries, 2015.
Web.
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The Influence of Case Law
“Copyright Timeline: A History of Copyright in
the United States.” Association of Research
Libraries. ARL. Web.
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The Influence of Case Law
“More Information on Fair Use.” copyright.gov.
United States Copyright Office. Web.
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Copy! Right?
•
•
•
•
•
•
Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
24
Copyright @ Arcadia
25
Assessing Fair Use
The four factors can be understood as weights
on a balance scale, one side which favors fair
use and the other which opposes…
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Assessing Fair Use
…An analysis of the factors places a small or
large weight in one pan or the other depending
upon the determination…
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Assessing Fair Use
…Once you consider all four factors, how
balanced the scale is will help determine if the
use favors fair use or not.
“Fair Use.” Copyright @ Arcadia. Arcadia University. Web.
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Assessing Fair Use
• And note that that not all factors get weighed
equally.
• An empirical analysis of federal fair use court
cases shows that if a use is deemed fair for
factors 1 (P) and 4 (E), the ruling will be in
favor of fair use. So factors 2 (N) and 3 (A)
have less bearing on a ruling of fair use.
Beebe, Barton. “An Empirical Study of U.S. Copyright Fair Use
Opinions, 1978-2005.” University of Pennsylvania Law Review
156.3 (2008): 549-624. Web.
29
Assessing Fair Use
There are tools you can use to help with your
own analysis. Here’s one:
“Thinking Through Fair Use.” Copyright Information and
Resources. Regents of the University of Minnesota. Web.
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Copy! Right?
•
•
•
•
•
•
Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
31
Public Domain
What is in the Public Domain?
• Works published by the federal government
• Works that have fallen out of copyright
protection
• Works place directly into the public domain.
If there is any doubt, the assumption is very
good that the work is protected by copyright
law.
“Public Domain.” Copyright @ Arcadia. Arcadia University. Web. 32
Public Domain
What is Not in the Public Domain?
• Nearly Anything on the Internet
• Works that have no copyright symbol
• Personal works
If there is any doubt, the assumption is very
good that the work is protected by copyright
law.
“Public Domain.” Copyright @ Arcadia. Arcadia University. Web. 33
No Longer Protected Works
• Copyright conditions and registration
requirements have changed over the decades.
• Here’s a clever, simple tool that can help you
determine what applied when and what
applies now.
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Digital Copyright Slider
Brewer, Michael. “Copyright Advisory Network.” American Library
Association Office for Information Technology Policy. Web.
35
Copy! Right?
•
•
•
•
•
•
Basics
Fair Use and the Four Factors: P, N, A, E
Code Switching
Assessing Fair Use
Public Domain
Almost Free of Copyrights
36
Almost Free of Copyrights
• “Creative Commons (CC) provides producers
of copyrighted works with a way to limit their
exclusive copyrights and grant a range of other
rights to other producers.”
• “Some rights reserved vs. All right reserved.
The emphasis is on sharing rights to your work
for other people’s creative purposes rather
than reserving your rights, which limits
subsequent use.”
“Work Almost Free of Copyrights.” Copyright @ Arcadia. Arcadia
University. Web.
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Almost Free of Copyrights
• “Arguably, CC licenses have become the most
prominent form of copyright protection in the
U.S. after copyright law itself.”
• “The licenses range from ‘Change my work.
Mention my name. Make money off your new
work.’ to ‘Do whatever you want with my
work. You don’t even have to mention my
name.’”
“Work Almost Free of Copyrights.” Copyright @ Arcadia. Arcadia
University. Web.
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Almost Free of Copyrights
• Creativecommons.org provides search tools to
help find CC-licensed works.
• Look for a CC license wherever you might
otherwise expect to find a ©.
• Use of a CC license requires no registration,
just a license notification.
• You can apply a CC license to your own work,
even a print work, provided you direct people
to the CC licensing conditions.
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Almost Free of Copyrights
Creative Commons Licenses:
Attribution
With ShareAlike
With NoDerivs
With NonCommercial
With NonCommercial &
ShareAlike
With NonCommercial &
NoDerivs
“About the Licenses.” creativecommons. Creative Commons. Web.
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Totally Free of Copyrights
Creative Commons Licenses:
No Rights Reserved
“About CC0 – No Rights Reserved.” creativecommons. Creative
Commons. Web.
“About the Public Domain Mark – No Known Copyright.”
creativecommons. Creative Commons. Web.
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Sources
“17.18 Copyright—Affirmative Defense—Fair Use.” U.S. Courts
for the Ninth Circuit. Web.
“About CC0 – No Rights Reserved.” creativecommons. Creative
Commons. Web.
“About the Public Domain Mark – No Known Copyright.”
creativecommons. Creative Commons. Web.
“Basics.” Copyright @ Arcadia. Arcadia University. Web.
Beebe, Barton. “An Empirical Study of U.S. Copyright Fair Use
Opinions, 1978-2005.” University of Pennsylvania Law Review
156.3 (2008): 549-624. Web.
Brewer, Michael. “Digital Copyright Slider.” Copyright Advisory
Network. American Library Association Office for Information
Technology Policy. Web.
42
Sources
“Circular 1: Copyright Basics.” United States Copyright Office.
Web.
“Copyright Timeline: A History of Copyright in the United States.”
Association of Research Libraries. Web.
“Fair Use.” Copyright @ Arcadia. Arcadia University. Web.
“Fair Use Index.” copyright.gov. United States Copyright Office.
Web.
“More Information on Fair Use.” copyright.gov. United States
Copyright Office. Web.
“Summaries of Fair Use Cases.” Copyright and Fair Use. Stanford
University Libraries. Web.
“Thinking Through Fair Use.” Copyright Information and
Resources. Regents of the University of Minnesota. Web.
43
Sources
“Work Almost Free of Copyrights.” Copyright @ Arcadia. Arcadia
University. Web.
Recommended
Reading
Russell, Elizabeth T. Art Law
Conversations. Madison,
WI: Ruly Press, 2005. Print.
44
Copy!
Right?
October 6, Tuesday
2:15-3:30 p.m.
Calvin Wang
[email protected]
Assistant Professor
Sciences Librarian
Arcadia University
Suburban Philadelphia
450 S. Easton Rd.
Glenside, PA 19048
PaLA Annual Conference 2015
Engage Educate Enrich
October 4-7, State College, PA