Module 1: Copyright and the Public Domain: Difference between revisions

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by Melanie Dulong de Rosnay and William Fisher
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== Learning objective ==
==[[Image:key.png|50px|]] Learning objective ==


This module explores the basic concepts, rights, and limitations of copyright law. It provides a general introduction to elements of copyright important to librarians. Other modules will elaborate further on these topics.  
 
This module explores the basic concepts of copyright law. It provides a general introduction to the elements of copyright important to librarians. Other modules will discuss these topics in detail.  


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== Case study ==
==[[Image:casestudy.png|50px|]]Case study ==


'''“I want to build a course pack for my students, what material may I include?”'''
'''“I want to build a course pack for my students.  What material may I include?”'''


Angela, a music professor, is visiting her school’s library to collect material to build a course pack for her students. She would like to include excerpts from books, electronic resources and scores. She also wants to post selected music and video clips online with her commentary. Nadia, the librarian, will explain to Angela what she may and may not do.
Angela, a music professor, is visiting her school’s library to collect material to build a course pack for her students. She would like to include excerpts from books, electronic resources and music scores. She also wants to post selected music and video clips online with her commentary. Nadia, the librarian, will explain to Angela what she may and may not do under copyright law.


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==[[Image:lesson.png|50px|]] Lesson ==


== What Is Copyright? ==
== What Is Copyright? ==


'''Copyright''' law gives authors temporary rights to control certain uses of their creations. For example, copyright law often limits who may reproduce, distribute, modify, or perform a creative work.  
'''Copyright''' is a legal concept that grants authors and artists control over certain uses of their creations for defined periods of time. It limits who may copy, change, perform, or share those creations.  


The justification for copyright law depends on whom you ask. The most common explanation is that copyright law provides an incentive to create new culture by allowing artists to profit from their creations. For example, the [http://en.wikipedia.org/wiki/United_States_Constitution Constitution of the United States] contains a [http://en.wikipedia.org/wiki/Copyright_Clause "Copyright Clause"], which says that the legislature may create copyright laws in order to "promote the progress of science and useful arts." Similarly, the [http://en.wikipedia.org/wiki/Statute_of_anne Statute of Anne], which is often considered the first true copyright law, read that copyright law was needed to "encourage learning."  
As we saw in the Introduction, there are several views concerning the purposes of copyright law. One view is that copyright law encourages creativity by allowing creators to profit from their work. This goal of copyright is reflected in the wording of many copyright laws. For example, the [http://en.wikipedia.org/wiki/Copyright_Clause "Copyright Clause"] of the United States Constitution states that Congress may grant authors copyright protection for their works for a limited time in order to "promote the progress of science and useful arts." (US Constitution, Article 1, Section 8, Clause 8.)  Similarly, the stated purpose of the [http://en.wikipedia.org/wiki/Statute_of_Anne Statute of Anne], the first copyright statute in England, was to "encourage learning." (8 Anne Chapter 19 (1710).)  Another view is that copyright law ensures that authors are paid fairly for their effort. A third view is that a creative work is an expression of the personality of its creator, and thus should be protected from being used without the creator's permission.


Not all copyright law is justified as a way to promote culture and learning however. Another argument for copyright law is that it guarantees authors are paid fairly for their creative labor. A third argument contends that creative works deserve protection because they are part of the personality of their creator and thus should not be "taken" without their permissions.
Although copyright law grants authors many rights in their works, it also limits these rights in many important ways. Most of these limitations are quite specific, but a few are broad.  Several, as we will see, enable librarians to use or disseminate copyrighted materials more freely than they otherwise could.
 
Copyright law is a powerful tool that reserves many rights to authors. However, copyright law also establishes many limitations to these rights. Some of these limitations help librarians add to the free flow of information and knowledge. Of all of these limitations to copyright law, perhaps the most powerful is the public domain.  


== What Is The Public Domain? ==  
== What Is The Public Domain? ==  


The '''public domain''' is a collection of creative works that are no longer covered by the limited terms of copyright law. For example, suppose the fictional country of Booktonia (which produces more books than any other country in the fictional world) has a copyright term of 20 years. An excellent history of Booktonia is written in 1980. 20 years later, in the year 2000, its copyright will expire and it will "fall into" the public domain. Once a work is in the public domain, the restrictions of copyright law no longer apply, and anyone may copy, redistribute, perform, or excerpt the work as they wish.  
The '''public domain''' is the name given to the set of creative works that are not protected by copyright law -- either because they are no longer covered by the limited terms of copyright law, because their creators did not comply with various formal requirements in the past, or because their creators deliberately donated to the public the rights that they might have asserted. As an illustration, suppose the fictional country of Booktonia has a copyright term of 20 years. If a book was written in 1980, the copyright protection for the book in Booktonia would have ended 20 years later, in 2000.  Once the copyright in a work expires, the work is said to "fall into" the public domain. Once a work is in the public domain, the restrictions of copyright law no longer apply, and anyone may copy, reuse, or share the work as they wish.  


At its core, the public domain functions as a pool of creative works from which anyone may draw. It provides authors the raw culture from which they manufacture the next generation of books, movies, songs, and so forth. The public domain is the inspirational reservoir from which the rivers of creativity flow.  
The public domain functions as a pool of creative material from which anyone may draw. It provides authors the raw materials from which the next generation of books, movies, songs, and knowledge can be built. As the 14th century English poet Chaucer (whose work is now in the public domain) [http://www.poetryintranslation.com/PITBR/English/Fowls.htm wrote], "For out of the old fields, as men say, Comes all this new corn, from year to year; And out of old books, in good faith, Comes all this new science that men learn."


== Who Makes Copyright Law? ==
== Who Makes Copyright Law? ==


Each country establishes its own copyright laws. Those laws determine such things as who acquires a copyright, what rights the copyright owner enjoys, how long the copyright lasts, and so forth.
Several [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework international treaties] set standards that all participating countries must follow when adopting or changing their copyright laws. However, within those limits, each nation sets its own laws. Those laws determine who can acquire a copyright, what rights the copyright holder enjoys, and how long the copyright lasts. As a result, copyright law varies significantly from one country to another.


Several international treaties (which you will learn about in the next module in this series [link]) set limits on the flexibility that each country enjoys when shaping its copyright laws.  But within those limits, each nation sets its own rules. As a result, copyright law varies significantly from one country to another.
In all countries, copyright law is shaped in part by legislatures, which adopt and often modify copyright statutes, and courts, which adjust and clarify the provisions of the statutes when applying them to particular cases.  In so-called '''common law''' countries, courts play somewhat more important roles than they do in so-called '''civil law''' countries, but the difference is not large. In some countries, '''religious legal systems''' also affect copyright rules. A discussion of the three main types of legal system, as well as lists of the legal systems of different countries may be found [http://en.wikipedia.org/wiki/Legal_systems_of_the_world here].  


Copyright laws in countries whose legal systems are rooted in the '''common law''' tend to be different from copyright laws in countries whose legal systems are rooted in the civil law.  In common-law countries, most of which were at some point related to Great Britain, courts have considerable flexibility in shaping and reshaping the law.  In civil-law countries, whose laws originate in Roman law, courts have less discretion and authority. Many variations in copyright law are correlated with this broad division.  In some countries, '''religious legal systems''' are also influential – and also affect copyright rules.  An index to the world’s legal systems, showing the heritage of each country, may be found at http://en.wikipedia.org/wiki/Legal_systems_of_the_world.
No matter what the legal system, however, copyright law is constantly chanigng to meet new creative, technological, and social challenges. Often those changes are driven by interest groups that seek to benefit their members. The library community has often played important roles in the shaping of copyright law in the past -- and could play even more important roles in the future.


In all countries, copyright law is in flux.  Legislatures and courts frequently make minor changes in the rules and occasionally make major changes.  Often those reforms are driven by interest groups, which (not surprisingly) seek changes that will benefit their own members.  In the past, associations of librarians have frequently played important roles in the debates over how copyright laws should be modified.
== What Does Copyright Law Cover? ==


== What is protected by copyright, and what is not ==
Copyright law generally covers all “original works of authorship.”  Such original works come in many forms.  For example, in almost all countries, all of the following are protected by copyright law:


Copyright law covers all “original works of authorship.”  Such original works come in many forms. For example, in almost all countries, all of the following are protected by copyright law:
* literary works (books, articles, letters, etc.);
* musical works;
* dramatic works (operas, plays);
* graphic arts (photographs, sculptures, paintings, etc.);
* motion pictures and audiovisual works (movies, videos, television programs, etc.);
* architectural works; and
* computer software.


· literary works (books, articles, letters, websites, etc.);
In some countries, sound recordings are also covered by copyright law. In other countries, sound recordings are protected by a separate, related set of rules known as “neighboring rights.”  In some countries, government works -- such as maps, official reports, and judicial opinions -- are protected by copyright law; in others, they are considered part of the public domain.


· musical works;
It is important to remember that '''copyright never applies to ideas or facts.'''  It only covers '''“original expression”''' -- in other words, the distinctive way in which ideas are conveyed.  So, for example, the information contained in a science textbook is not protected by copyright law. You are free, after reading a textbook, to write and publish a new book conveying the same information in different words. Similarly, you are free, after reading a work of history, to write a novel incorporating the historical facts.


· dramatic works (operas, plays);
A few countries (most notably, the United States) require the original expression to be fixed in a '''tangible medium''', like paper or a digital recording format, in order to be protected by copyright law.  In those countries, improvisational performances -- for example, of jazz or dance -- are not protected unless their authors record them.


· graphic arts (photographs, sculptures, paintings, etc.);
Copyright law covers works that have not been published or even made public. So, for example, private letters, diaries, and email messages are all protected by copyright law.


· motion pictures and audiovisual works (movies, videos, television programs; etc.);
Some countries used to require published works to be registered with a central office or to carry a copyright notice with the name of the author and the year of publication in order to be protected by copyright law.  Such '''formalities''' are no longer necessary for a work to be covered by copyright law.  However, registering a copyright may help prove authorship or identify who must be contacted for permission before a work can be reused.  In some countries, registration of a work is necessary before the author is permitted to sue someone for copyright infringement.  (Foreign authors, however, are exempted from this requirement.) In addition, some countries continue to require publishers to deposit one copy of every new work in a designated office, such as a national library.


· architectural works;
== Who Gets A Copyright? ==


· computer software.
A copyright is ordinarily obtained by the creator of a work.  If you write a novel, paint a painting, or compose a song, you will generally acquire the copyright in your creation.


In some countries, sound recordings are also protected by copyright law; in other countries, sound recordings are protected by a separate, related set of rules known as “neighboring rights.” In some countries, government works – such as charts, official reports, and judicial opinions – are protected by copyright law; in others, they are considered part of the public domain.
The situation is more complicated if you are an employee creating the work as part of your employment. Countries vary a great deal in how they deal with such situations. Typically, in countries that follow the common law tradition, the copyright in a work prepared by an employee within the scope of employment goes to the employer. By contrast, in countries that follow the civil law tradition, the copyright typically goes to the employee. However, in civil-law countries, employment contracts or even copyright law often give employers rights over their employees’ creations similar (though not identical) to the copyrights enjoyed by employers in common-law countries.  Finally, in the United States and some other countries, when specific types of works are created in specific circumstances by independent contractors, the contractors and the organizations commissioning the works may agree in writing that the commissioning organizations shall be awarded the copyrights.


Copyright never applies to ideas or facts.  It only covers '''“original expression”''' – in other words, the distinctive way in which ideas are conveyed.  So, for example, the information contained in a newspaper article is not protected by copyright law; you are permitted, after reading the article, to write and publish a new article conveying the same information in different words. Similarly, you are permitted, after reading a work of history, to write another book, expressing in different words the same facts.
== What Rights Come With Copyright? ==


Most countries require the original expression to be fixed in a '''tangible medium''', like paper or a digital recording format, in order to enjoy copyright protection.  In those countries, improvisational performances – such as jazz or choreography – are not protected unless their authors record them.
The rights created by copyright law fall into two categories:  economic rights and moral rights.   


In general, the author of a work enjoys copyright protection as soon as the work has been fixed – for example, through writing, painting, or audio recording. Until that moment, copyright law has no applicability. For instance, a screenplay that exists only in the screenwriter’s mind or the plot of a novel that the novelist explains orally to a potential publisher is not protected. But once '''fixation''' occurs – even of a rough, preliminary draft –  copyright protection attaches, even if the work has yet to be published or even made public.  So, for example, private letters, diaries, and email messages are all protected by copyright law.
'''Economic rights''' are intended to give authors the opportunity to use their works to make money. These are things that typically only the owner of the copyright may do unless the owner grants permission to others. (Important exceptions to the requirement to obtain the copyright holder's permission, such as fair use and compulsory licenses, are discussed below.) The primary economic rights are:


Some countries used to require published works to be registered or to carry a copyright notice with the name of the author and the year of publication in order to enjoy copyright protection.  Such procedures are no longer necessary.  Nevertheless, such formalities may be helpful to prove authorship, or to provide information on whom to contact to get authorization to reuse a work.  And in some countries, compliance with these '''formalities''' is necessary before one is permitted to sue someone for copyright infringement.  In addition, some countries continue to require publishers to deposit one copy of every new work in a designated office, often the National Library.
* the right to reproduce the work -- in other words, to make copies of it;
* the right to create derivative works -- such as translations, abridgments, or adaptations;
* the right to distribute the work -- for example, by selling or renting copies of it;
* the right to perform or display the work publicly.


== Who obtains a copyright? ==
'''Moral rights''' are designed to protect authors’ noneconomic interests in their creations. Moral rights do not exist in all countries.  Generally speaking, they are recognized more widely and are enforced more firmly in civil-law countries than in common-law countries.  The primary moral rights are:


A copyright is ordinarily obtained by the '''author''' of a work.  If you write a novel, paint a painting, or compose a song, you acquire the copyright in your creation.
* the right of integrity -- for example, the right to prevent the destruction or defacement of a painting or sculpture;
* the right of attribution -- in other words, the right to be given appropriate credit for one’s creations, and not to be blamed for things one did not create;
* the right of disclosure -- the right to determine when and if a work shall be made public;
* the right of withdrawal -- the right (in certain limited circumstances) to remove from public circulation copies of a work one has come to regret.


Complications arise, however, when a copyrighted work is created by an employee acting within the scope of his or her employment. Countries vary significantly in how they deal with such situations.  Typically, in countries that follow the common law tradition, the copyright in a work prepared by an employee goes to the employer.  By contrast, in countries that follow the civil law tradition, the copyright typically goes to the employee. However, in civil-law countries, employment contracts or even copyright law often give employers rights over their employees’ creations similar (though not identical) to the copyrights enjoyed by employers in common-law countries.
'''Neighboring rights''', sometimes called related rights, are close cousins of copyright. The oldest and best known neighboring rights are economic rights granted to persons who are not authors of a work but who contribute to its creation -- such as performers, producers, and broadcasting associations.  


== What rights does a copyright owner enjoy? ==
Some countries also have privacy and publicity rights that complement copyright. For example, some countries prevent the public distribution of works that contain personally identifiable information, unless permission is granted by that person.


Copyrights typically carry with them two kinds of rights:  economic rights and moral rights.  '''Economic rights''' enable copyright owners to control the economic exploitation of their works. The primary economic rights are:
== The Limits of Copyright ==


· the right to reproduce the work – in other words, to make copies of it;
The rights described above are subject to important limitations.  First, as mentioned above, many older books, articles, recordings, and other works are part of the '''public domain.''' These materials may be used by anyone for any purpose. Unfortunately, it is not always easy to figure out when a particular work has fallen into the public domain. [http://en.wikipedia.org/wiki/Wikipedia:Copyright_situations_by_country This directory((.link_red))] contains some helpful information on how long the term of copyright lasts in different countries around the world. It also has useful tips on when a work enters the public domain. Sometimes, a copyright holder will dedicate a work to the public domain before the copyright expires, much like a landholder will sometimes donate property to a town so it may become a park. In these instances, the work becomes free to use immediately.


· the right to create derivative works, such as translations, abridgments, or adaptations;
In addition, the copyright laws of every country include '''exceptions and limitations''' to copyright. These identify activities that users can do without fear of violating copyright. While these exceptions vary by country, some common examples include copying for personal use, quoting short passages of literary works for the purposes of criticism, photocopying for archival purposes by libraries, and converting works into formats accessible by handicapped persons. Other exceptions are broader and less well defined, such as the '''fair use doctrine''' of the United States and the '''fair dealing''' doctrines employed in some African countries.


· the right to distribute the work – for example, by selling or renting copies of it;
Finally, most countries have '''compulsory licensing''' systems for certain types of works. Under a compulsory licensing system, copyright holders are required to permit certain uses of their works as long as the user pays a fee set by a government agency or courts. Such regimes are becoming increasingly common.


· the right to perform or display the work.
== Copyright Licenses ==


Only the copyright owner can engage in these activities, unless the owner grants permission to other people to do so.
If none of these exceptions or limitations apply, it may still be possible to make use of a copyrighted work.  In order to do so, the user must obtain a '''license''' from the copyright holder that gives the user permission to use the content in a particular way. The copyright holder may demand a fee for such use, or may allow the use for free. The license should be specific and in writing in order to avoid confusion.  


'''Moral rights''' are designed to protect authors’ noneconomic interests in their creations.  The primary moral rights are:
It is not always necessary to contact the copyright holder directly to obtain a license to use their works.  Many countries have '''collecting societies''' (also known as collective administration organizations) that act as agents for large numbers of copyright holders.  Such organizations now administer licenses pertaining to a wide variety of uses of copyrighted materials.  Examples include broadcasts of musical composition and the use of various modern technologies to reproduce graphic works or literary works.


· the right of integrity – for example, the right to prevent the destruction or defacement of a painting or sculpture;
Another set of organizations assist and encourage those copyright holders who are willing to give away some of their rights for free.  The most famous of these are [http://creativecommons.org/ Creative Commons] and the [http://www.fsf.org/ Free Software Foundation], but others are emerging.


· the right of attribution – in other words, the right to be given appropriate credit for one’s creations, and not to be blamed for things one did not create;


· the right of disclosure – the right to determine when and if a work shall be made public;


· the right of withdrawal – the right to remove from public circulation copies of a work one has come to regret.
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Moral rights do not exist in all countries.  Generally speaking, they are recognized more widely and are enforced more firmly in civil-law countries than in common-law countries.  
==[[Image:casestudy.png|50px|]] Back to the case study ==


A close cousin of copyrights are so-called '''neighboring rights'''.  These consist of economic rights granted to persons who are not authors of works but who contribute in some way to the creation or dissemination of embodiments of those works, such as performers, music and film producers, and broadcasting organizations.
Nadia (the librarian) should help Angela (the professor) organize the set of materials she has gathered by asking a series of questions:


More remote cousins of copyrights are privacy and publicity rights.  These do not exist in all countries.  Where they do exist, they may prevent the public distribution of works, such as films or photos containing names, images, or other personal identifiable information, without prior permission from the persons represented in those works. These may affect both published works and unpublished archives.
* Are any of the materials in the public domain?
* Are any of the remaining materials licensed under a Creative Commons license or a similar set of terms that allow their use?
* Are any of the remaining materials freed for use by any of the statutory exceptions contained in their nation's copyright statute?
* Does the library already own a license to use the materials in the way Angela proposes?


== Using Copyrighted Works ==
If the materials are in the public domain, are licensed freely under a Creative Commons license, are covered by a statutory exemption, or are included in existing licenses, they may be used. If not, Angela will need to obtain permission from the copyright holder or a collective rights organization.
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Under four circumstances, persons other than copyright owners are permitted to engage in the activities described in the preceding section.
==[[image:resource.png|50px|]] Additional resources ==


First, many books, articles, sound recordings and so forth have fallen into the '''public domain''' and thus may be used by anyone for any purpose.  All works eventually fall into the public domain because, as we have seen, copyrights do not last forever.  Unfortunately, determining whether the copyright on a particular work has expired is harder than one might think.  A guide helpful in determining whether a copyright in the United States has expired may be found at http://www.copyright.cornell.edu/public_domain/.  Guides to the corresponding rules in other countries may be found at http://en.wikipedia.org/wiki/Wikipedia:Copyright_situations_by_country.  Even if the maximum term of the copyright on a particular work has not expired, it may have fallen into the public domain because the copyright owner neglected (or decided not) to “renew” the copyright.  Finally, on occasion, a copyright owner will dedicate a work to the public domain – just as landowners occasionally dedicate real property to the public for use as a park.
A comprehensive discussion of the aspects of copyright law that affect librarians -- and, in particular, librarians in developing countries -- may be found in the [http://www.eifl.net/cps/sections/services/eifl-ip/issues/handbook/handbook-e eIFL Handbook on Copyright and Related Issues for Libraries((.link_green))].


Second, as mentioned above, the copyright laws of every country establish various '''exceptions and limitations''' to the rights of copyright owners. In other words, the laws identify activities that users can engage in for free and without permission. Most of these exceptions are quite specific. Examples include quoting short passages of literary works for purposes of criticism; photocopying for archival purposes by libraries, and converting works into formats suitable for handicapped persons. A few, however, are general and open-ended. The most general of all is the fair-use doctrine, which applies in the United States and a few other countries.
Carol C. Henderson, “[http://www.ala.org/ala/issuesadvocacy/copyright/copyrightarticle/librariescreatures.cfm Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property Law and Policy((.link_green))],” 1998.
The former Executive Director of the Washington Office American Library Association discusses the roles played by librarians in maintaining copyright balance.


Third, a person who wishes to use a copyrighted work (that has not fallen into the public domain) in a way not covered by a special statutory exception or limitation can, of course, obtain the permission of the copyright owner.  The simplest way to obtain such permission is to request a '''license'''.  Often, the copyright owner will grant a license for free.  At other times, the owner will demand a fee.  In either event, the license should be specific and in writing.
[http://www.economist.com/debate/overview/144 A short debate between Professors William Fisher and Justin Hughes((.link_red))], organized in May 2009 by the Economist magazine, examines the merits and demerits of the copyright system.  


Various organizations facilitate the processes of requesting and granting copyright licenses.  For example, in some countries, '''collecting societies''' act as agents for large numbers of copyright owners, for example by granting “blanket licenses” to radio and television stations that wish to make use of their entire catalogues in return for an annual fee.  Another example is '''Creative Commons''', which helps copyright owners grant free licenses to use their works in specified ways – and helps potential users determine quickly and easily what licenses have been granted.
The [http://www.21coe-win-cls.org/rclip/e_index.html Research Center for the Legal System of Intellectual Property (RCLIP)], in cooperation with the [http://www.law.washington.edu/casrip Center for Advanced Study & Research on Intellectual Property (CASRIP)] of the University of Washington School of Law, is building [http://www.21coe-win-cls.org/rclip/db/search_form.php a comprehensive database of court decisions] involving intellectual property (including copyright law) in every country throughout the world.  The database is not yet complete but already constitutes a highly valuable research tool, particularly for Asian countries.


Fourth and finally, most countries require copyright owners to grant to users permission to engage in certain activities in return for fees set, not by the copyright owners, but by a government tribunal of some sort.  For example, the owners of the copyrights in musical works may be obliged to permit musicians to make “covers” of songs that have already been recorded and distributed to the public – in return for fees set by the government. Such co-called '''“compulsory licenses”''' are becoming increasingly common.
A map, prepared by William Fisher, describing the main features of copyright law in the United States and, to a limited extent, other countries, is available [http://cyber.law.harvard.edu/people/tfisher/IP/IP%20Maps.htm here((.link_green))].


“[http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale A Fair(y) Use Tale]” is a 2008 short movie on copyright and fair use in the US.
According to the synopsis, “professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.”


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The documentaries, [http://www.stealthisfilm.com/Part1/ Steal This Film Part I] (2006) and [http://www.stealthisfilm.com/Part2/ Steal This Film Part II] (2007), produced by The League of Noble Peers, offer entertaining and highly critical views of the recent trend toward strengthening the rights of copyright owners, particularly with respect to the unauthorized sharing of music and movies.


A [http://www.librarycopyright.net/digitalslider/ helpful guide to determining which works have fallen into the public domain in the United States] has been provided by Michael Brewer and the American Library Association Office for Information Technology Policy. 


== Back to the case study ==
[http://www.youtube.com/watch?v=ZblrRs3fkSU A Librarian's 2.0 Manifesto] offers a provocative conception of the responsibilities of librarians, particularly in an environment characterized by rapid technological change.


Nadia (the librarian) should help Angela (the professor) organize the set of materials she has gathered by asking a series of questions:
==Cases==


· Have any of the materials fallen into – or been dedicated to – the public domain?
The following judicial opinion explores and applies some of the principles discussed in this module:


· Of the remaining materials, have any been licensed under open-access terms, such as a Creative Commons license?
[http://www.ipsofactoj.com/international/2001/Part10/int2001%2810%29-013.htm Telegraph Group, Ltd. v. Ashdown, Part 10 Case 13 (Court of Appeal, England & Wales, 2001)((.link_red))] (the relationships among freedom of expression, the public interest, and intellectual property rights)


· With respect to any materials not covered by such licenses, does a statutory exemption permit Angela to use them in particular ways for free?


· Does the library already own a license to use particular works in the ways Angela proposes?
== [[image:question.png|50px|]] Assignment and discussion questions ==
If none of the foregoing apply, Angela and the library may need to obtain permission to engage in the activity at issue – either directly from the copyright owner or through a collective rights organization.


'''[[image:assignment.png|50px|]]Assignment'''


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Answer one of the following questions:


== Additional resources ==
1. Explain briefly what copyright law attempts to protect, as well as what freedoms are reserved for or available to the public.


“A Fair(y) Use Tale” is a 2008 short movie on copyright and fair use in the US.
2. Which (if any) of the justifications for copyright law make sense to you?
According to the synopsis, “professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms”.
http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale


Carol C. Henderson, “Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property Law and Policy,” 1998.
The former Executive Director of the Washington Office American Library Association explains which role librarians may play to maintain copyright balance.
http://www.acrl.org/ala/aboutala/offices/wo/woissues/copyrightb/copyrightarticle/librariescreatures.cfm


== Assignment and discussion questions ==
'''[[image:discussion.png|50px]]Discussion Question(s)'''


'''Round 1 questions'''
Select one of the answers that your colleagues provided to the Assignment questions and comment on it.  Explain why you agree or disagree.  Do not hesitate to give examples you have faced as an author, as a member of the public, or as a librarian.


Based on the textbook and the additional resources, please explain briefly what copyright law attempts to protect, and what legal mechanisms are available to give access to works to the public.
== Contributors ==


Besides helping a professor to build a course pack, please describe one or two situations or projects involving copyright law and the public domain in the work of librarians.
This module was  created by [[Contributors#rosnay|Melanie Dulong de Rosnay]]. It was then edited by a team including [[Contributors#diaz|Sebastian Diaz]], [[Contributors#fisher|William Fisher]], [[Contributors#gasser|Urs Gasser]], [[Contributors#holland|Adam Holland]], [[Contributors#isbell|Kimberley Isbell]], [[Contributors#jaszi|Peter Jaszi]], [[Contributors#maclay|Colin Maclay]], [[Contributors#moshirnia|Andrew Moshirnia]], and [[Contributors#peterson|Chris Peterson]].




'''Round 2 question'''
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Please read the answers that your colleagues provided to the Round 1 questions, and comment on them. Try to explain why you agree or disagree, and which new ideas may have come to your mind after reading your colleagues’ answers.
 
Do not hesitate to give examples you faced in your life as an author, a member of the public, or a librarian.
 
 
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'''Quick Access'''
 
* [http://cnx.org/content/col10698/latest/ Connexions]
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]
 
'''The textbook modules are available both on [http://cnx.org/content/col10698/latest/ Connexions] and on this wiki'''
 
* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''
 
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Latest revision as of 17:28, 9 January 2012

Blocks.png

Key.png Learning objective

This module explores the basic concepts of copyright law. It provides a general introduction to the elements of copyright important to librarians. Other modules will discuss these topics in detail.

Casestudy.pngCase study

“I want to build a course pack for my students. What material may I include?”

Angela, a music professor, is visiting her school’s library to collect material to build a course pack for her students. She would like to include excerpts from books, electronic resources and music scores. She also wants to post selected music and video clips online with her commentary. Nadia, the librarian, will explain to Angela what she may and may not do under copyright law.

Lesson.png Lesson

What Is Copyright?

Copyright is a legal concept that grants authors and artists control over certain uses of their creations for defined periods of time. It limits who may copy, change, perform, or share those creations.

As we saw in the Introduction, there are several views concerning the purposes of copyright law. One view is that copyright law encourages creativity by allowing creators to profit from their work. This goal of copyright is reflected in the wording of many copyright laws. For example, the "Copyright Clause" of the United States Constitution states that Congress may grant authors copyright protection for their works for a limited time in order to "promote the progress of science and useful arts." (US Constitution, Article 1, Section 8, Clause 8.) Similarly, the stated purpose of the Statute of Anne, the first copyright statute in England, was to "encourage learning." (8 Anne Chapter 19 (1710).) Another view is that copyright law ensures that authors are paid fairly for their effort. A third view is that a creative work is an expression of the personality of its creator, and thus should be protected from being used without the creator's permission.

Although copyright law grants authors many rights in their works, it also limits these rights in many important ways. Most of these limitations are quite specific, but a few are broad. Several, as we will see, enable librarians to use or disseminate copyrighted materials more freely than they otherwise could.

What Is The Public Domain?

The public domain is the name given to the set of creative works that are not protected by copyright law -- either because they are no longer covered by the limited terms of copyright law, because their creators did not comply with various formal requirements in the past, or because their creators deliberately donated to the public the rights that they might have asserted. As an illustration, suppose the fictional country of Booktonia has a copyright term of 20 years. If a book was written in 1980, the copyright protection for the book in Booktonia would have ended 20 years later, in 2000. Once the copyright in a work expires, the work is said to "fall into" the public domain. Once a work is in the public domain, the restrictions of copyright law no longer apply, and anyone may copy, reuse, or share the work as they wish.

The public domain functions as a pool of creative material from which anyone may draw. It provides authors the raw materials from which the next generation of books, movies, songs, and knowledge can be built. As the 14th century English poet Chaucer (whose work is now in the public domain) wrote, "For out of the old fields, as men say, Comes all this new corn, from year to year; And out of old books, in good faith, Comes all this new science that men learn."

Who Makes Copyright Law?

Several international treaties set standards that all participating countries must follow when adopting or changing their copyright laws. However, within those limits, each nation sets its own laws. Those laws determine who can acquire a copyright, what rights the copyright holder enjoys, and how long the copyright lasts. As a result, copyright law varies significantly from one country to another.

In all countries, copyright law is shaped in part by legislatures, which adopt and often modify copyright statutes, and courts, which adjust and clarify the provisions of the statutes when applying them to particular cases. In so-called common law countries, courts play somewhat more important roles than they do in so-called civil law countries, but the difference is not large. In some countries, religious legal systems also affect copyright rules. A discussion of the three main types of legal system, as well as lists of the legal systems of different countries may be found here.

No matter what the legal system, however, copyright law is constantly chanigng to meet new creative, technological, and social challenges. Often those changes are driven by interest groups that seek to benefit their members. The library community has often played important roles in the shaping of copyright law in the past -- and could play even more important roles in the future.

What Does Copyright Law Cover?

Copyright law generally covers all “original works of authorship.” Such original works come in many forms. For example, in almost all countries, all of the following are protected by copyright law:

  • literary works (books, articles, letters, etc.);
  • musical works;
  • dramatic works (operas, plays);
  • graphic arts (photographs, sculptures, paintings, etc.);
  • motion pictures and audiovisual works (movies, videos, television programs, etc.);
  • architectural works; and
  • computer software.

In some countries, sound recordings are also covered by copyright law. In other countries, sound recordings are protected by a separate, related set of rules known as “neighboring rights.” In some countries, government works -- such as maps, official reports, and judicial opinions -- are protected by copyright law; in others, they are considered part of the public domain.

It is important to remember that copyright never applies to ideas or facts. It only covers “original expression” -- in other words, the distinctive way in which ideas are conveyed. So, for example, the information contained in a science textbook is not protected by copyright law. You are free, after reading a textbook, to write and publish a new book conveying the same information in different words. Similarly, you are free, after reading a work of history, to write a novel incorporating the historical facts.

A few countries (most notably, the United States) require the original expression to be fixed in a tangible medium, like paper or a digital recording format, in order to be protected by copyright law. In those countries, improvisational performances -- for example, of jazz or dance -- are not protected unless their authors record them.

Copyright law covers works that have not been published or even made public. So, for example, private letters, diaries, and email messages are all protected by copyright law.

Some countries used to require published works to be registered with a central office or to carry a copyright notice with the name of the author and the year of publication in order to be protected by copyright law. Such formalities are no longer necessary for a work to be covered by copyright law. However, registering a copyright may help prove authorship or identify who must be contacted for permission before a work can be reused. In some countries, registration of a work is necessary before the author is permitted to sue someone for copyright infringement. (Foreign authors, however, are exempted from this requirement.) In addition, some countries continue to require publishers to deposit one copy of every new work in a designated office, such as a national library.

Who Gets A Copyright?

A copyright is ordinarily obtained by the creator of a work. If you write a novel, paint a painting, or compose a song, you will generally acquire the copyright in your creation.

The situation is more complicated if you are an employee creating the work as part of your employment. Countries vary a great deal in how they deal with such situations. Typically, in countries that follow the common law tradition, the copyright in a work prepared by an employee within the scope of employment goes to the employer. By contrast, in countries that follow the civil law tradition, the copyright typically goes to the employee. However, in civil-law countries, employment contracts or even copyright law often give employers rights over their employees’ creations similar (though not identical) to the copyrights enjoyed by employers in common-law countries. Finally, in the United States and some other countries, when specific types of works are created in specific circumstances by independent contractors, the contractors and the organizations commissioning the works may agree in writing that the commissioning organizations shall be awarded the copyrights.

What Rights Come With Copyright?

The rights created by copyright law fall into two categories: economic rights and moral rights.

Economic rights are intended to give authors the opportunity to use their works to make money. These are things that typically only the owner of the copyright may do unless the owner grants permission to others. (Important exceptions to the requirement to obtain the copyright holder's permission, such as fair use and compulsory licenses, are discussed below.) The primary economic rights are:

  • the right to reproduce the work -- in other words, to make copies of it;
  • the right to create derivative works -- such as translations, abridgments, or adaptations;
  • the right to distribute the work -- for example, by selling or renting copies of it;
  • the right to perform or display the work publicly.

Moral rights are designed to protect authors’ noneconomic interests in their creations. Moral rights do not exist in all countries. Generally speaking, they are recognized more widely and are enforced more firmly in civil-law countries than in common-law countries. The primary moral rights are:

  • the right of integrity -- for example, the right to prevent the destruction or defacement of a painting or sculpture;
  • the right of attribution -- in other words, the right to be given appropriate credit for one’s creations, and not to be blamed for things one did not create;
  • the right of disclosure -- the right to determine when and if a work shall be made public;
  • the right of withdrawal -- the right (in certain limited circumstances) to remove from public circulation copies of a work one has come to regret.

Neighboring rights, sometimes called related rights, are close cousins of copyright. The oldest and best known neighboring rights are economic rights granted to persons who are not authors of a work but who contribute to its creation -- such as performers, producers, and broadcasting associations.

Some countries also have privacy and publicity rights that complement copyright. For example, some countries prevent the public distribution of works that contain personally identifiable information, unless permission is granted by that person.

The Limits of Copyright

The rights described above are subject to important limitations. First, as mentioned above, many older books, articles, recordings, and other works are part of the public domain. These materials may be used by anyone for any purpose. Unfortunately, it is not always easy to figure out when a particular work has fallen into the public domain. This directory((.link_red)) contains some helpful information on how long the term of copyright lasts in different countries around the world. It also has useful tips on when a work enters the public domain. Sometimes, a copyright holder will dedicate a work to the public domain before the copyright expires, much like a landholder will sometimes donate property to a town so it may become a park. In these instances, the work becomes free to use immediately.

In addition, the copyright laws of every country include exceptions and limitations to copyright. These identify activities that users can do without fear of violating copyright. While these exceptions vary by country, some common examples include copying for personal use, quoting short passages of literary works for the purposes of criticism, photocopying for archival purposes by libraries, and converting works into formats accessible by handicapped persons. Other exceptions are broader and less well defined, such as the fair use doctrine of the United States and the fair dealing doctrines employed in some African countries.

Finally, most countries have compulsory licensing systems for certain types of works. Under a compulsory licensing system, copyright holders are required to permit certain uses of their works as long as the user pays a fee set by a government agency or courts. Such regimes are becoming increasingly common.

Copyright Licenses

If none of these exceptions or limitations apply, it may still be possible to make use of a copyrighted work. In order to do so, the user must obtain a license from the copyright holder that gives the user permission to use the content in a particular way. The copyright holder may demand a fee for such use, or may allow the use for free. The license should be specific and in writing in order to avoid confusion.

It is not always necessary to contact the copyright holder directly to obtain a license to use their works. Many countries have collecting societies (also known as collective administration organizations) that act as agents for large numbers of copyright holders. Such organizations now administer licenses pertaining to a wide variety of uses of copyrighted materials. Examples include broadcasts of musical composition and the use of various modern technologies to reproduce graphic works or literary works.

Another set of organizations assist and encourage those copyright holders who are willing to give away some of their rights for free. The most famous of these are Creative Commons and the Free Software Foundation, but others are emerging.


Casestudy.png Back to the case study

Nadia (the librarian) should help Angela (the professor) organize the set of materials she has gathered by asking a series of questions:

  • Are any of the materials in the public domain?
  • Are any of the remaining materials licensed under a Creative Commons license or a similar set of terms that allow their use?
  • Are any of the remaining materials freed for use by any of the statutory exceptions contained in their nation's copyright statute?
  • Does the library already own a license to use the materials in the way Angela proposes?

If the materials are in the public domain, are licensed freely under a Creative Commons license, are covered by a statutory exemption, or are included in existing licenses, they may be used. If not, Angela will need to obtain permission from the copyright holder or a collective rights organization.

Resource.png Additional resources

A comprehensive discussion of the aspects of copyright law that affect librarians -- and, in particular, librarians in developing countries -- may be found in the eIFL Handbook on Copyright and Related Issues for Libraries((.link_green)).

Carol C. Henderson, “Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property Law and Policy((.link_green)),” 1998. The former Executive Director of the Washington Office American Library Association discusses the roles played by librarians in maintaining copyright balance.

A short debate between Professors William Fisher and Justin Hughes((.link_red)), organized in May 2009 by the Economist magazine, examines the merits and demerits of the copyright system.

The Research Center for the Legal System of Intellectual Property (RCLIP), in cooperation with the Center for Advanced Study & Research on Intellectual Property (CASRIP) of the University of Washington School of Law, is building a comprehensive database of court decisions involving intellectual property (including copyright law) in every country throughout the world. The database is not yet complete but already constitutes a highly valuable research tool, particularly for Asian countries.

A map, prepared by William Fisher, describing the main features of copyright law in the United States and, to a limited extent, other countries, is available here((.link_green)).

“A Fair(y) Use Tale” is a 2008 short movie on copyright and fair use in the US. According to the synopsis, “professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.”

The documentaries, Steal This Film Part I (2006) and Steal This Film Part II (2007), produced by The League of Noble Peers, offer entertaining and highly critical views of the recent trend toward strengthening the rights of copyright owners, particularly with respect to the unauthorized sharing of music and movies.

A helpful guide to determining which works have fallen into the public domain in the United States has been provided by Michael Brewer and the American Library Association Office for Information Technology Policy.

A Librarian's 2.0 Manifesto offers a provocative conception of the responsibilities of librarians, particularly in an environment characterized by rapid technological change.

Cases

The following judicial opinion explores and applies some of the principles discussed in this module:

Telegraph Group, Ltd. v. Ashdown, Part 10 Case 13 (Court of Appeal, England & Wales, 2001)((.link_red)) (the relationships among freedom of expression, the public interest, and intellectual property rights)


Question.png Assignment and discussion questions

Assignment.pngAssignment

Answer one of the following questions:

1. Explain briefly what copyright law attempts to protect, as well as what freedoms are reserved for or available to the public.

2. Which (if any) of the justifications for copyright law make sense to you?


Discussion.pngDiscussion Question(s)

Select one of the answers that your colleagues provided to the Assignment questions and comment on it. Explain why you agree or disagree. Do not hesitate to give examples you have faced as an author, as a member of the public, or as a librarian.

Contributors

This module was created by Melanie Dulong de Rosnay. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Peter Jaszi, Colin Maclay, Andrew Moshirnia, and Chris Peterson.


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Course Materials:

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