Scholarly Communication & Related Issues

Webinar that summarizes Fair USe for Copyrighted material. The video runs 1:00 hour.

Code of Best Practices in Fair Use for Academic and Research Libraries, a clear and easy-to-use statement of fair and reasonable approaches to fair use to support academic inquiry and higher education. 

Fair Use Checklist - Cornell University

"A proper use of this checklist should serve two purposes. First, it should help you to focus on factual circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis. Second, the checklist can provide an important mechanism to document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith. You should retain a copy of the checklist in connection with each "fair use" assertion you are making in your project."

Spreadsheet for tracking permission requests (XLS)

Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and other Memory Institutions

This document responds to memory institution professionals’ concerns about copyright liability in digitizing and providing digital access to collections that are believed to contain orphan works in significant numbers.

Copyright is a legal right that protects creative work.  It is a Federal Law, Title 17 of the U.S. Code.  There is a dual role for copyright for it provides exclusive rights to authors in order to protect their work for a limited period of time as well as to promote creativity, innovation, and learning.

Eight categories of works are copyrightable:

1. Literary, musical and dramatic works
2. Pantomimes and choreographic works
3. Pictorial, graphic and sculptural works
4. Sound recordings
5. Motion pictures and other AV works
6. Computer programs
7. Compilations of works and derivative works
8. Architectural works

A work becomes copyrighted when it is fixed in a tangible medium of expression.  After March 1, 1989, works no longer require a copyright notice (© or the word copyright, the author's name and the year of publication).  Copyright registration is also no longer required.  However, it is good practice to affix a copyright notice to works so that the owner of the copyright can be easily identified.

What cannot be copyrighted?

• Ideas, procedures, methods, systems, and processes
• Titles, names, short phrases, and slogans - slogans may qualify for trademark protection
• Facts, news, and research
• Works in the public domain - created by U.S. Government employees, or work published in the U.S. prior to 1923

The exclusive rights of the copyright holder are:

1. to reproduce the work
2. to distribute the work
3. to create derivative works
4. to publicly perform the work
5. to publicly display the work
6. to publicly perform sound recordings by means of a digital audio transmission.

How long does copyright last?

   Works created on or after January 1, 1978, are protected for a term of the life of the author plus 70 years.  It is a corporate author then the protection is for the shorter of 95 years from publication or 120 years from creation.  Works created and published prior to 1978 may be protected for different lengths of time and the Copyright Duration Chart should be consulted.

Public Domain consists of all works that never had copyright protection and works that no longer have copyright protection.  Includes most works created by the U.S. Government and all works published in the United States prior to 1923.  All works in the public domain are free for the public to use.

A. Retain your Copyright

According to the law, copyright is granted to authors upon expressing their ideas in a "tangible form", even if it is an unpublished manuscript; no registration is needed to become the legitimate copyright holder of your own work. As the author, you have the exclusive right to copy, distributed or perform your work, unless you give your permission to others to do so. In fact, in order to publish your article, all the publisher needs is your permission, yet standard publisher agreements transfer all your rights to the publisher. You don't have to accept it, as the owner of your own intellectual property.

Q: Is Open Access compatibile with copyright?  Completely. (EFIL Constorium)

B. Publish in Open Access Journals

You may also choose to publish your article in an Open Access journal. Many Open Access journals are peer-reviewed and have excellent impact factors. They feature scholarly literature in electronic format, free of charge to the user and free of most copyright and licensing restrictions. That means that users can read, download, copy, distribute, print, search, or link to the full texts of these articles, as long as they "give authors control over the integrity of their work and the right to be properly acknowledged and cited," according to the Budapest Open Access Initiative. Nevertheless, the Open Access movement does not stand for "Napster for Science". Your consent, as the author and copyright holder, is needed to publish your work in the public domain, but you retain the right to block the distribution of mangled or misattributed copies. This is how you can maintain control over your own work.

This publishing project is a compelling alternative to traditional publishing options, in which faculty members like you donate your time in writing, reviewing and editing, and still find out that their institutions have to pay ever-increasing fees for accessing works they supported with their own research and institutional funds.

You may not be aware that some of the major journals in your discipline are Open Access. The Directory of Open Access Journals indexes many of the Open Access journals available.

C. Archive by Submitting to a Repository

Another option is to archive your research in a disciplinary or intuitional digital repository. Such repositories are harvested by search engines such as Google or Ask and made freely accessible to potential readers. Authors may choose to put an un-refereed preprint into the archive, before they submit it to a peer-reviewed journal. If after submission the article is accepted, and the author retains the right to self-archive, then the refereed or revised postprint may be archived. But even if the publisher does not allow self-archiving, authors can still archive the "corrigenda" (an online preprint vs. the published version of the article).

For information about digital repositories, see the Registry for Open Access Repositories (ROAR) and the Directory of Open Access Repositories (OpenDOAR).

TEACH Act

In 2002, when it became obvious that digital formats are wide spreading, a new amendment was introduced to the copyright law, to respond to potential copyright infringements while using digital materials to educate students, either face-to-face or over the Internet. The Technology Education and Copyright Harmonization Act (TEACH) exempts educators in accredited non-profit educational institutions from asking permission when displaying copyrighted materials in digital format, subject to a number of conditions.

These conditions pertain to the educational institution and the teaching process. Teaching should follow the rules of "mediated instructional activities" (NOT course reserve).It means that the transmitted materials should be integral to the course taught, and they should be displayed the way they would have been displayed or performed in a physical classroom. It also means that the instructor should control or supervise the actual teaching. Materials that can be used under the TEACH Act include all works that would typically be taught in a physical classroom, such as non-dramatic literary works (including articles and book chapters) and audiovisual works (including videos), but only limited portions of dramatic literary works (plays, operas). However, you can not use works that are solely produced for distance education, or required readings, such as textbooks, course packs and consumable workbooks.

Unlike employing the Fair Use Doctrine, the educational institution has to comply with certain technical requirements when using the TEACH Act. It has to limit access to the transmitted materials so that only registered students have access. At the same time the institution should prevent unauthorized copying of these materials, and refrain from interfering with technological barriers used by the copyright owner. Materials should be saved electronically only as long as they are used in the digital class.

Distance Education and the TEACH Act

NCSU TEACH Act Toolkit

Introduction

The Fair Use Doctrine is based on actual court decisions. It allows and even encourages use of copyrighted works for socially beneficial activities such as teaching, learning, and scholarship. Courts consider four factors in deciding whether a use is Fair Use or an infringement:

1. Purpose of the Use (learning, commentary, criticism OR commercial);
2. Nature of the Publication (factual OR creative);
3. Amount and Substantiality of the Whole (small OR substantial);
4. Effect on the Market (has no affect OR replaces a sale).

These include discussions of plagiarism, fair use, etc. Note that we include the perspective of the corporate sector in the video from the CCC.

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Permissions to use copyrighted material must be obtained when the use is not covered by the copyright law and its exceptions.  Permissions should be in writing and from the copyright holder.  Maintain copies of all requests and correspondence is recommended.

All requests for permissions must be sent to the copyright holder of record or their agent and should includ the following information:

1. Your name, address, telephone & fax numbers
2. Your title/position and name of institiutional affiliation
3. Date of request
4. Cmplete and accurate citation
5. Precise description of the proposed use of the copyrighted material as well as when and for how long the material will be used
6. a signature line for the copyright holder including their title if they are representing a company and the date

Posted news about copyright issues on the horizon!