Origin and purpose:
The purpose of copyright is that it is meant to promote the arts and sciences while still providing incentive for creators. The roots of copyright law really started in Britain in 1710 with The Statute of Anne. What this did was help out authors, who were really being exploited by publishers, who were reprinting works to the detriment of authors. Originally just for printed works, but now copyright is involved in almost every aspect of commercial life, from movies and music to databases and blogs.
Requirements for protection:
It used to be that you had to file for copyright, but now, copyright is awarded to any original work in fixed medium. You no longer need to file for copyright; it is automatic once you create something in a tangible form. So an idea is NOT copyrightable, but a drawing or poem (even if scribbled on a napkin) IS.
There are a few rights that all copyright owner receive automatically.
Import/Export the work
Create derivative works
Performance rights (the right to perform or display the work)
Sell or assign rights to another
Broadcasting rights (the right to transmit the work by radio or video)
The rights are the easy part. The duration of copyright terms is where it gets super complicated. The Statute of Anne gave authors rights for 14 years. Between 1790-1962, there wasn’t much of an increase in the length of copyright terms, but since 1976, modern the duration for U.S. Copyright Law has nearly doubled. The Sony Bono Copyright Extension Act of 1998 froze the Public Domain for 20 years. [When works pass out of copyright protection, they enter the Public Domain. This essentially means that they are owned by the public and that people can do whatever they want with them, including creating derivative works. A good current example is that new book, Pride and Prejudice and Zombies. ] The Sony Bono Copyright Extension Act froze the Public Domain for 20 years. So every year that passes, new materials are supposed to enter the public domain, but this froze it so no materials will enter the public domain until 2019. A lot of people call this The Mickey Mouse Protection Act because Mickey Mouse was about to enter the public domain when this Act was passed. Don’t think that that was a coincidence.
SO what we see is that copyright is really on a spectrum: On one end, we have exclusive rights of the copyright owner, and on the other end, we have the Public Domain, where works are public property and anyone can access and use. It is the middle ground where librarians really come into play.
Does anyone know what Fair Use is? Basically, Fair Use allows for the use of copyrighted material for scholarly and educational purposes. Copyright law is supposed to NOT stifle creativity, so this is where Fair Use comes into play. Fair Use can cover teachers showing videos to their classrooms, to people remixing videos for satirical purposes or to provide social commentary.
To make it easier on librarians and teachers who do not have time to sort through complex copyright law, Fair Use Guidelines were created to show the minimum and maximum amount of copying of materials for use in non-profit, educational settings. Now, as they are guidelines, they are not law at all. So what you should really do is look at the guidelines, and if they show that your use DOESN’T fall under fair use, then you should do a fair use analysis.
Just when we thought copyright was getting easier to manage, digital materials came along and screwed everything up. Corporate copyright owners have worked hard to make copyright law benefit them, and for the most part it is working.
The Digital Millenium Copyright Act of 1998 was the first amendment to really attempt to update copyright law for the digital environment. The DMCA is really controversial, as it really tips copyright law in favor of copyright holders. A few key components of the DMCA are that it allows libraries and archives to make up to three copies for replacement or preservation purposes, gives copyright owners the right to control or deny access to digital materials, and has criminalizing the circumvention of DRMs.
DRMs are the protections that copyright owners and vendors use to restrict access and manipulation of digital materials. So what this does is it gives copyright holders the power to control or to deny access to digital materials protected by copyright.
At first, librarians and other educators were just using digital materials freely without really thinking about copyright issues. Those are now the days of old, because the TEACH Act changed that all. The TEACH Act is much more stringent than Fair Use Guidelines, because it is more of a checklist of things you can and cannot do, and certain requirements you have to follow. Because digital materials are pretty important in serving distance students, The TEACH Act really affects distance education.
Along with that, one of the major things about digital materials is that they are not really viewed as materials at all. I know that sounds a little confusing, but vendors are actually taking the stance that when we buy digital materials, we are not actually buying them, but just leasing them. And what that really does is it gives and exorbitant amount of power to corporations and disempowers the end-users. First Sale doesn’t apply to digital materials, because we cant just buy an e-book or a CD and put it up on the catalog for instant access. We have to go through certain vendors who grace us with the ability to do that.
Generally, royalties are paid for each copyrighted work used in a course packet, and the cost is passed on to the students. Some maintain that the first time you use the articles, it is fair use, but if you are using the material over and over, then you should pay (because there will be an effect on the market).
There hasn’t been any kind of agreement on how many or long articles can stay on reserve, so it is all up in the air. Many claim that if they own an original copy, then they never have to get permission, as that original copy was paid for (probably at a high price) with the intent that many students would be using it. Oxford University Press recently filed suit against Georgia State University on the issue of e-reserves. Here is the interesting issue: There is no real rule about this, no CONFU guidelines, but libraries have been paying anyway, erring on the side of caution. This has essentially created a market that didn’t exist before. So now that GSU is being sued, the publishers filing suit can claim a market loss, which greatly helps their case. In the wake of this, schools are now creating guidelines to prevent this from happening, but it is a serious issue. Some have even suggested that GSU was deliberate in getting caught so they could advocate for fair use in these types of cases.
To wrap up, some of the basic tenants of libraries – circulating or preserving materials – is completely enmeshed in copyright law, so its really important for us as librarians to be down with copyright law. I would say, in the spirit of Radical Reference, that we have a social responsibility to protect the interests of the public by providing access to materials in order to create an informed community and advance the arts and sciences. Copyright works best when there is a balance between the interests of the public and that of the creators; since copyright law is changing to give more power to the copyright holders, it is in our publics interest that we stay informed and work to make sure user rights aren’t restricted.
Fair Use Analysis