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Calling all Ohio artists: Submissions for Public Domain pop-up exhibit are open until Sept. 5

A new pop-up exhibit titled “Public Domain” is debuting in Columbus this October. The exhibit will feature original artwork that incorporates public domain materials; Ohio artists are invited to submit their work, which “can be in any medium, any aesthetic, [and] addressing any theme” so long as it includes material from the public domain.

PUBLIC DOMAIN
Pop-Up Exhibit & Reception
October 11, 2014
Homeport Gallery
779 East Long Street
Columbus, OH 43215
​(Adjacent to the Lincoln Theater)

Learn more about the public domain on the Copyright Resources Center website and blog post on the public domain. You can also contact the Copyright Resources Center with questions about the rights status of a particular work, and for help finding sources of public domain materials.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Articles of interest: January-June 2014

This post highlights citations for recent scholarly articles with a focus on copyright, especially as it pertains to libraries, higher education, and scholarly communication. Articles were selected according to the following criteria: scholarly/peer-reviewed, English language, published within the past six months, and subject matter pertaining to copyright and libraries, higher education, or scholarly communication. Links to the full-text articles are provided when available; [OSU full text] links will connect authenticated users through The Ohio State University Libraries, while [OA full text] links point to an open access version of the article that should be available to all users.

Did we miss an interesting article? Please share the citation in the comments!

Library services

Crews, K. D. (2014). Copyright and universities: Legal compliance or advancement of scholarship? The growth of copyright. IPRinfo Magazine, 2, 14-15. [OA full text]

Gilliland, A. T., & Bradigan, P. S. (2014). Copyright information queries in the health sciences: trends and implications from the Ohio State University. Journal Of The Medical Library Association102(2), 114-117. doi:10.3163/1536-5050.102.2.011 [OSU full text]

Gore, H. (2014). Massive open online courses (MOOCs) and their impact on academic library services: Exploring the issues and challenges. New Review of Academic Librarianship20(1), 4-28. doi:10.1080/13614533.2013.851609 [OA full text]

Myers, C. S. (2014). Answering copyright questions at the reference desk: A guide for academic librarians. Reference Librarian55(1), 49-73. doi:10.1080/02763877.2014.856260 [OSU full text]

Library policies & procedures

Bowen, T., Calter, M., Lee, F., & Parang, E. (2014). Using computing power to replace lawyers: Advances in licensing and access. Serials Librarian66(1-4), 232-240. doi:10.1080/0361526X.2014.881221 [OSU full text]

Clark, A., & Chawner, B. (2014). Enclosing the public domain: The restriction of public domain books in a digital environment. First Monday19(6), 6. doi:10.5210/fm.v19i6.4975 [OA full text]

Dryden, J. (2014). The role of copyright in selection for digitization. American Archivist77(1), 64-95. [Abstract only]

Dygert, C., & Langendorfer, J. M. (2014). Fundamentals of e-resource licensing. Serials Librarian66(1-4), 289-297. doi:10.1080/0361526X.2014.881236 [OSU full text]

Simon, J. C. (2014). E-book purchasing best practices for academic libraries. Journal of Electronic Resources Librarianship26(1), 68-77. doi:10.1080/1941126X.2014.878640 [OSU full text]

Legislation

Michael, G. J. (2014). Politics and Rulemaking at the Copyright Office. Journal of Information Technology & Politics11(1), 64-81. doi:10.1080/19331681.2013.872073 [OSU full text]

Muhammad Waris, B. (2014). National Library of Pakistan as Legal Depository. Pakistan Library & Information Science Journal45(1), 18-23. [OSU full text]

Nsibirwa, Z., Hoskins, R., & Stilwell, C. (2014). Building the South African nation through legal deposit: The impact of legislation on preservation of digital materials. African Journal of Library, Archives & Information Science24(1), 53-65. [OSU full text]

Publishing & scholarly communication

Björk, B., Laakso, M., Welling, P., & Paetau, P. (2014). Anatomy of green open access. Journal of the Association for Information Science & Technology65(2), 237-250. doi:10.1002/asi.22963 [OA full text]

Cheng, W., Ren, S., & Rousseau, R. (2014). Digital publishing and China’s core scientific journals: A position paper. Scientometrics98(1), 11-22. doi:10.1007/s11192-012-0873-8 [OA full text]

Ludewig, K. (2014). MedOANet: The Copyright and OA Landscape in Mediterranean Europe. Liber Quarterly: The Journal of European Research Libraries23(3), 187-200. [OA full text]

Lwoga, E., & Questier, F. (2014). Faculty adoption and usage behaviour of open access scholarly communication in health science universities. New Library World115(3/4), 116-139. doi:10.1108/NLW-01-2014-0006 [OSU full text]

Melero, R. R., Rodríguez-Gairín, J. M., Abad-García, F. F., & Abadal, E. E. (2014). Journal author rights and self-archiving: The case of Spanish journals. Learned Publishing27(2), 107-120. doi:10.1087/20140205 [OSU full text]

Updated 8/8/2014 with K. D. Crews article. 

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Open access and “A Subversive Proposal”

In 2012, The Ohio State University Libraries adopted the Faculty Open Access Resolution, which requires Ohio State Libraries’ faculty to grant the University a license to make their scholarly articles openly accessible.  The goal of this initiative, and open access in general, is to increase the accessibility of research so that others can easily make use of it. According to Peter Suber, open access works are “digital, online, free of charge, and free of most copyright and licensing restrictions.” While free of many restrictions, open access works are still protected by copyright law; publicly available does not mean copyright free.

An important contributor to the open access movement is Stevan Harnad.  In 1994, Harnad posted a message to a discussion list on electronic journals hosted by the Virginia Polytechnic Institute.  Harnad’s message, titled “A Subversive Proposal”, suggested that researchers should make their papers freely available.  The message sparked significant discussion and Harnad is now credited with initiating the concept of self-archiving.  In 1995, Harnad’s original message and the email discussion it provoked were collected into a book: Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing.  The full copy of that book is available through HathiTrust, under an open-access, Google digitized license. In honor of the proposal’s twentieth anniversary, Richard Poynder posted an interview with Harnad titled “The Subversive Proposal at 20”, which looks back at the proposal’s impact and discusses the development of the open access movement.

Scholarly articles are increasingly available as open access documents.  Learn more about open access on the Copyright Resources Center’s open access page, or by reading other articles tagged “open access” on the Copyright Corner Blog.

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Marc Jaffy is a practicum student at the OSU Libraries Copyright Resources Center and is currently a Masters student at the Kent State University, School of Library and Information Science

Patterns and copyright protections

In the United States, patterns are generally not eligible for copyright protection as copyright does not apply to methods or “procedures for doing, making, or building things.” Additionally, an item created from a pattern also lacks copyright protection if it is considered to be a functional object. Under the Useful Article doctrine in US copyright law, if an object has a practical or useful function, copyright protection applies only to the original, creative elements “that can be identified separately from the utilitarian aspects of an object”, but does not extend to the underlying design of the functional object.

photo of vintage sewing pattern

Photo: Butterick Dress 5579 Instr (c) Allison Marchant, CC BY-NC-SA 2.0
Here, while the drawing of the dress may be considered a creative expression of the author and therefore eligible for copyright protection, the pattern instructions and any dress made from the pattern would not be protected by copyright.

In the absence of copyright protection for functional objects, a user of a pattern may be able to use whatever she makes from that pattern for any purpose, including selling the items. However, accompanying materials included with the pattern, such as images, may be eligible for copyright protection (see image above). The United States Copyright Office provides the example that while a drawing or photo of a dress may be copyrighted, that does not give the artist the exclusive right to make a dress of that particular design.

Despite this legal landscape, copyright notices and terms of use such as the following are still commonly found on patterns:

“Copyright 2014. All Rights Reserved. Pattern is for personal, non-commercial use only. Selling items made from this pattern is prohibited.”

What does this mean for designers and those wanting to use the pattern? Are the copyright notices and accompanying terms of use legally binding? Some designers believe that the notice they put onto their patterns provides them with legal protection, but because copyright law does not protect the pattern itself, are the terms of use stipulating personal, non-commercial use legally enforceable?

When it comes to what can be done with the final product made from a pattern, there is a conflict between the desires of those who want to use the pattern and those who designed the pattern. With no relevant case law available as a guide, there really are no definitive answers. Despite the lack of legal precedent, those wanting to use patterns and the items made from those patterns should be aware of how they can legally make use of these materials. In the same vein, designers should understand to what extent and how they can protect their work.

The view commonly held by designers is relatively simple: follow the restrictions set in the pattern’s disclaimer. For example, if a knitting pattern you downloaded was accompanied by a disclaimer that read “personal, non-commercial use only” you could make as many items as you wanted using that pattern, but you could not sell any of them because that would constitute a non-personal, commercial use. However, when designers place notices on their patterns, they may be exaggerating copyright protections and licenses. But it is important to remember that even if copyright protection is not available, a user may be agreeing to a license that restricts the way he may use the pattern when he consents to the terms and conditions set by the designer.

Pattern users should be aware of what they are agreeing to when purchasing or downloading a pattern. By clicking a box that reads, “I agree to the terms & conditions”, a user may be entering into a legally binding agreement that can restrict what she may do with the pattern. Under US law, terms that parties consent to in a contract can trump copyright law, leaving designers with possible legal recourse for misuse of a pattern.

Seeking clear legislative guidance and wanting protection for their work, the fashion industry lobbied Congress to create legislation that would protect unique designs. First introduced in 2007, the Innovate Design Protection and Piracy Prohibition Act (IDPPPA) sought to protect designs for a period of three years if registered with the US Copyright Office within three months of being made available to the public. While similar legislation to limit design piracy has been enacted in Europe, India and Japan, legislative progress of the IDPPPA has stalled as of 2014, and patterns are still generally not copyrightable in the United States.

Unless and until moves are made in Congress, answers about copyright protection and designs still lie in a gray area. Whether you are a designer or a user of patterns, it is important to remain informed about your legal rights and understand the possible ramifications that can come along with something as simple as a pattern.

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Morgan Cheek is a legal intern at the OSU Libraries’ Copyright Resources Center and is currently a student at The Ohio State University Moritz College of Law

Copyright Resources Center hosting OSU discussion group for copyright MOOC

Join the OSU Libraries’ Copyright Resources Center for weekly lunch & learn discussions to accompany the upcoming massive open online course (MOOC) “Copyright for Educators & Librarians.” The free online course is available on Coursera and will run from July 21-August 18. The OSU discussion group will meet each Thursday from 12-1pm for the duration of the course to review each week’s material and discuss any questions you might have. This is a great opportunity to review or learn for the first time about copyright issues and questions affecting teaching, libraries, and education.

The  “Copyright for Educators & Librarians” MOOC will be taught by Kevin Smith from Duke University, Anne Gilliland (formerly of OSU) from the University of North Carolina-Chapel Hill, and Lisa Macklin from Emory University. Learn more about the course and sign up for the MOOC here: https://www.coursera.org/course/cfel

Sandra Enimil and Jessica Meindertsma from the OSU Libraries’ Copyright Resources Center will host weekly discussions in Thompson Library, Room 150A each Thursday from 12-1pm (bring your lunch!) for the duration of the course. If you would like to participate from a regional campus, please contact us as soon as possible so that we can arrange for web conferencing. All participants please RSVP to LibCopyright@osu.edu.

OSU discussion group details: 

  • 12-1 pm on Thursdays for the duration of the course: July 24, July 31, August 7, August 14
  • OSU Columbus Campus, Thompson Library, Room 150A
  • Feel free to bring your lunch
  • All participants please RSVP to LibCopyright@osu.edu

 

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Opening the vaults: Organizations make a multitude of digital images available

In an encouraging trend towards lowering barriers for the use of third party materials, some institutions are implementing policies to make portions of their digital collections available for certain uses without requiring permission or payment of a fee.

The Wellcome Library  has applied the Creative Commons Attribution (CC-BY) license to 100,000 digital images “including manuscripts, paintings, etchings, early photography and advertisements” from their collection of cultural objects related to the history of medicine. Under this license, anyone may freely download, reproduce, distribute, remix, and edit the images for any purpose, including commercial uses, as long as the Wellcome Library is credited as the source.

The Metropolitan Museum of Art announced a new initiative called Open Access for Scholarly Content (OASC) that makes many digital images of public domain materials from the museum’s collection available for scholarly use without requiring fees or additional permissions. Under the museum’s terms and conditions, anyone may download and use images identified as OASC for personal use, educational use, and scholarly publications in all media, such as journal articles, conference presentations, and documentary films. The museum’s Frequently Asked Questions about OASC provide an explanation on what exactly they mean by scholarly content, in what contexts the license applies, and how to find, download and cite images included in OASC.

Portrait of a Woman, possibly Ginevra d'Antonio Lupari Gozzadini from The Metropolitan Museum of Art

Portrait of a Woman, possibly Ginevra d’Antonio Lupari Gozzadini by Maestro delle Storie del Pane
The Metropolitan Museum of Art,
Robert Lehman Collection, 1975

Notably, the Wellcome Library and the Metropolitan Museum of Art initiatives encompass only digital images of those works in their collections that are presumed to be in the public domain. While there is an argument to be made that faithful reproductions of public domain works do not receive a separate copyright and belong to the public domain as well, many institutions implement restrictive policies and leverage licensing fees on reproductions of public domain works. Some institutions make explicit claims to rights, while others disguise the claims in reproduction fees assuming most patrons are unlikely to recognize the difference or object if they do. Applying a Creative Commons license to images, or another free license for clearly defined uses, is a step in the right direction and can reassure scholars, teachers, and students who might otherwise shy away from the cost of paid licenses or not feel confident relying on fair use.

Taking a different approach to licensing content for wider use,  Getty Images unveiled a new “embed feature” that allows users to add select images from the Getty Images stock photography collections to websites and social media posts with no further permission or fees necessary. Users obtain a snippet of HTML code which they may use to share the image elsewhere on the web via an “embedded viewer” (see: the instructions for use from Getty Images). The content must remain on Getty Images’ servers and cannot be edited or resized.* The embedded viewer enables Getty Images to gather data about embedded content on users’ sites and monetize images by placing advertisements through the embedded viewer. Furthermore, the embedded viewer may only be used for the purposes detailed in the terms and conditions. Users may embed images for editorial purposes, “meaning relating to events that are newsworthy or of public interest,” but not for commercial purposes. This would likely include many noncommercial, educational purposes.

The available content and the approach to sharing by Getty Images are distinct from those of Wellcome Trust and the Metropolitan Museum of Art in a few key ways. First, Getty Images is licensing the use of more obviously copyrighted works, as compared to the reproductions of public domain materials made available by the other two organizations. Secondly, the material from Getty Images is only available for online use; presentations, print materials, and other offline uses are not covered by this license. The online-only presence also enables Getty Images to remove content at their discretion and without warning, as detailed in their terms of use. Images downloaded under the terms set by the Wellcome Trust or the Metropolitan Museum of Art may be used continually under the terms of those licenses. However, users should always review the current terms and conditions for any provider and the current availability of a particular image before any new use, as online content is frequently subject to change.

Overall, these licensing options provide more opportunities for the public to use material that might otherwise be restricted by fees or ambiguous rights. As always, be sure that you read, understand, and save a copy of the license terms before moving forward. If you have any questions about making use of the new licensing options for these institutions or navigating copyright for another use of third party images, please contact the University Libraries’ Copyright Resources Center.  Our guide to copyright and using images also provides more information on this topic in general.

*Note: I intended to include images in this post from each of the licensed collections under discussion, but Getty Images’ embed code does not seem to function with our blog layout, and the licensing terms prevent me from fixing it by tinkering with the code.
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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Theories of copyright

Copyright is intended to benefit society as a whole. It’s easy to lose sight of this broader perspective in the course of day-to-day dealings with copyright, but it’s important to keep in mind, especially as we consider the ways in which the current copyright system might be improved.

Copyright theories, with roots in law, philosophy, and economics, contemplate the benefits that copyright ought to bestow, and how such benefits may be best derived. In essence, when and why should copyrights be created? What should the scope or limit of those rights be?  Descriptions of four prominent theories and their tenets are briefly sketched below. Which one resonates with you?

The fairness theory of copyright is based on the premise that the law ought to give authors what they deserve; in other words, hard work should be rewarded and authors should retain control of the fruits of their labors. For example, exclusive rights afford creators a limited monopoly and the opportunity to profit from their work. Further application of this theory might involve fair compensation for contributors to composite works and increased protections for factual works (facts are not presently protected by copyright). This theory is particularly influential in common law countries such as the United States and United Kingdom.

Personality theory is less concerned with compensating labor, and focuses instead on protecting the emotional bond between the artist and her creation. Moral rights derive primarily from personality theory and encompass an author’s rights to be credited for her work, to protect the integrity of her work, to determine when to publish a work, to demand that a work be returned, to be protected from excessive criticism and to collect a fee when a work is resold. Such rights may sound alien to an audience in the United States, where moral rights are rarely enforced outside of the limited circumstances prescribed by the Visual Artists Rights Act (VARA) of 1990. Personality theory and its attendant moral rights are more prevalent in civil law countries, such as the European Union member states.

The welfare theory of copyright promotes the interests of society as a whole and favors the greatest good for the greatest number of people. This system balances incentives to create with mechanisms to make works widely available for the benefit of all (e.g. exclusive rights and eventual expiration of those rights). Welfare theory’s emphasis on the collective good contrasts with the individual-centric rewards of the fairness and personality theories, and also differs markedly in its attitude towards intellectual property as a necessary evil that is required to facilitate greater production of public goods. Copyright reform motivated by the welfare theory might remove copyright protection for those works which would be produced in “optimal” quantities anyways. For example, advertisements are created to market other products rather than for any independent value. Advertisements would therefore continue be produced with or without copyright protection.  This theory aligns most closely with the United States’ constitutional basis for copyright, which intends for copyright to “promote the Progress of Science and useful Arts” (US Const. art. I, sec. 8, cl. 8).

Culture theory contends that the law should cultivate a just and attractive culture. This theory tends towards paternalism, as it presumes to encourage works for the betterment of humankind rather than limiting the scope to those works for which there is a current demand. Like welfare theory, cultural theory is prospective: the law should prompt individuals to behave in ways that will create a better society in the future. Cultural areas where copyright policies may be the most influential include diversity, art, education, and democracy. Thus, copyright reformers motivated by the culture theory might seek to identify and ameliorate barriers imposed by copyright law on educational uses of copyrighted material.

Collectively, these theories illustrate how copyright serves as the means to multiple ends, however imperfectly. Individuals receive economic and moral rights to stimulate the creation of new works from which the rest of society may also benefit. The various theories ultimately come down to fine tuning the system, as seen with the examples accompanying each theory above.

What copyright theory or motivation for copyright do you find the most compelling? We’d love to hear your thoughts in the comments section.

 

The material in this post was developed from the lectures and interactive map on copyright theory created by William Fisher for CopyrightX (CC BY-NC-SA 2.5).

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

 

CopyrightX: The copyright MOOC

The libraries have been packed with students studying hard for finals over the past week, and we can relate. Your campus copyright librarians went back to school this spring to take part in CopyrightX: a massive open online course covering copyright law and reform produced by Harvard Law School the HarvardX distance-learning initiative, and the Berkman Center for Internet and Society.

cartoon of copyright resources center staff studying

CopyrightX offers an excellent resource for anyone seeking a comprehensive overview of copyright law and theory. Approximately 18 hours of lectures do not prove insurmountable, though another review accurately describes the course as “a fire-hose of concentrated information.” Lectures are carved up into smaller topical episodes which address specific areas of interest, such as the copyright of fictional characters or joint authorship.

Although the current semester is winding down, anyone may access the course content online and progress through the materials at his or her own pace. The syllabus on the CopyrightX website includes links to all course readings and lectures.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Copyright online: What you need to know about protecting your works and using the works of others

Every day content creators invest their time, energy, and creativity into generating and publishing millions of original works online. In the time it takes for a person to copy and paste, those works can be taken out of the creator’s control and passed off as the creative labors of another. Understanding the scope of rights granted to copyright owners is the first step in protecting your works online, and can also help you avoid infringing on other creators’ rights.

Protecting Your Works:

Copyright protection is as equally broad for online content as it is for non-digital content; to qualify for copyright protection, the law requires an original work of authorship fixed in a tangible medium of expression. Blogs, website designs, e-books, videos, and graphics are just a few examples of protectable digital works. Copyright is automatic; the moment you create a work, you own the copyright.[1] You do not need to register your work or include a copyright notice to have copyright protection.

As a copyright owner, you have a number of exclusive rights to your works. These include the right to:

  1. Reproduce your work;
  2. Prepare derivative works;
  3. Distribute your work;
  4. Publicly display your work;
  5. Publicly perform your work; and
  6. In the case of sound recordings, publicly perform the work by means of digital audio transmission.

This means that before anybody uses your work in any of the above ways, they must first get your permission to do so.[2] This prohibition on copying is not just limited to exact copies of your whole works—a third party does not have to copy every single word or pixel of your work to be infringing—it also extends to works that are substantially similar to your own.

Tip #1: Make it clear that you are the copyright owner.

An important step in protecting your online content is letting others know that the particular work you have placed online is your own. Works no longer need to have a copyright notice to qualify for copyright protection, but by affixing a notice to a work, a copyright owner lets others know that the work is protected by copyright and the content creator is the owner of that copyrighted work. Subsequently, third parties can clearly see whom they must seek permission from if they wish to use the work.

Notice may be designated by the use of the “©” symbol, the word “Copyright”, or the abbreviation “Copr.”, followed by the copyright owner’s name and the year of the publication of the work. In addition to this information, it may be beneficial to provide an easy way for third parties to contact you for the purposes of asking permission to use your works.

Tip #2: Let others know what they can or can’t do with the work.

As we mentioned before,  copyright owners have exclusive rights in their works. Under the traditional copyright framework, a copyright owner reserves all rights in his or her work, allowing third party use only through individual permission or statutory exceptions, such as fair use. One easy way to communicate this information is through the use of a disclaimer. A disclaimer can be placed on the website where the content appears, and will notify others that your work is protected and should not be used without the creator’s permission.

Beyond the traditional copyright framework, however, content creators can also control how their works are used through the use of a Creative Commons license. You can choose from several different Creative Commons licenses that allow others to use your work under certain conditions —commercial, noncommercial, derivative works allowed, etc. — without additional permission, and let others know of the conditions through the use of an online-generated badge. See our page about Creative Commons for more information, including the licensing options available for content creators.

Tip #3: Monitor your work.

Notices, disclaimers, or easy licensing avenues will not be enough to deter all potential infringers. This is why it is important to monitor your work. In addition to the routine manual checking you may be doing on your own, such as through Google or Twitter, there are a number of online tools that can help in this process. For suggestions on monitoring tools available to content creators, and a comprehensive discussion on protecting your blog content, check out Awesomely Luvvie’s blog post, “How to Protect Your Blog Content: Know Your Rights”.

Tip #4: Enforce the rights you have.

So what do you do when you discover that another person has copied your content? You have a number of options, the first of which involves directly approaching the alleged infringer to ask them to remove the content and/or providing information on how they may use your content (you may ask for appropriate citation of your material or a fee for the use). Contact information may be found on the infringing website, or in some cases may be found by searching WHOIS and reviewing the registrant information. If you are unable to determine the author of the infringing work, you may contact the website service provider or webhosting company. Once again, you may search WHOIS to find contact information on the service provider or web hosting company.

Under the DMCA safe harbor provisions, the webhosting company or service provider may have a defense against your claim of infringement, so long as it expeditiously removes the infringing material upon receiving a proper takedown notice from you. To be effective, a takedown notice must be sent to the registered agent of the service provider or webhosting company you wish to contact. This information may be found through the U.S. Copyright Office’s directory of service provider agents.

Many website service providers (such as YouTube) have explicit copyright removal procedures in place, making it easy for you to file a proper DMCA takedown notice. If notice forms are not provided, you may file a notice on your own, so long the notice includes the following elements:

  • Your physical or electronic signature;
  • Identification of the copyrighted work;
  • Identification of the allegedly infringing material (with enough information that the service provider can find the material);
  • Your contact information;
  • A “good faith” statement that you believe use of the material is not authorized by law; and
  • A statement that the information you have included is accurate, to the best of your knowledge.

Finally, if you are unable to get infringing content removed or satisfactorily attributed, you may seek legal action. One important thing to keep in mind, however, is that civil actions for copyright infringement require that the work be registered with the Copyright Office.

Using the Works of Others:

When using the work of another in the creation of your own online content, you must first determine if the work itself is protected by copyright. Remember that copyright extends to original works of expression fixed in tangible mediums of expression. Copyright does not extend to ideas, facts, slogans or short phrases, or works that fall within the public domain.

If a work has copyright protection, and you are unable to rely on a statutory exception, you must seek permission from third parties to use their works. Similarly, any third party wishing to use your works must first seek your permission to use the works.

One option to avoid seeking direct permission is to utilize the work by linking to the material. If, however, linking to the source is insufficient, you must consider whether you can rely on an exception like fair use or seek permission from the copyright owner to use the work. If fair use is appropriate be sure to document your analyses of each instance where you rely on it. Permission can come from contacting the copyright owner directly, or adhering to the conditions of use they have set forth through any open licensing option such as Creative Commons. Finally, when using a work, limit your use of the work to only the amount needed to achieve your intended purpose, and attribute your sources.


[1] An exception to this would be a work that was created as a “work for hire.”

[2] A note on fair use: Under some circumstances, a third party may be able to use your work without receiving your permission. This can occur if the third party’s use of your work is determined to be a fair use. Visit our page on fair use to find more information about fair use, including tools to help determine if a use may qualify as fair.

 

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Maria Scheid is a graduate of The Ohio State University Moritz College of Law and former legal intern at the Copyright Resources Center at OSU Libraries

Licensing opportunities for music copyright

This is the fourth of a 4-part series on issues in music copyright. Part 4 will provide an overview of the different licensing opportunities available for musical compositions and sound recordings.

Authors of musical works may use their works for their own benefit or they may instead, or additionally, allow third parties to use their works via a license. In many instances a copyright owner will negotiate a direct license with a licensee, with both parties mutually agreeing upon term and conditions, including the payment of a fee for the use of the work. This is known as a voluntary license. In other instances, Congress has determined certain conditions under which a work can be used and has set a fee by law (“statutory rate”). This is known as a compulsory license. The available licensing scheme will depend on which copyright the licensee is seeking to use (musical composition or sound recording) and how the licensee intends to use that work.

Voluntary Licenses: There are a number of different situations in which a license must be negotiated between parties. These situations include:

  • Reproduction and distribution: To reproduce and distribute a sound recording, a master recording license must be obtained from the copyright holder. To use the underlying musical composition, a compulsory mechanical license must be secured, as discussed below.
  • Reproduction in audiovisual works: If you want to use a sound recording in a visual work, such as a commercial or movie, a master recording license must be obtained from the copyright holder. To use the underlying musical composition, a separate synchronization license must be obtained from the copyright holder.
  • Public performance: If you would like publicly perform a work, you must secure a license for the musical composition, and if applicable, the sound recording. For larger music users, such as radio stations or restaurants, it is typical to secure a blanket license from a performance rights organizations (the major organizations being ASCAP, BMI, and SESAC). Performance rights organizations (PROs) enter into agreements with publishers to license out all of the publisher’s songs. Individuals or organizations who negotiate a blanket license with the PRO are permitted to publicly perform any song within the PRO’s collection. The fee for this use will be negotiated between the parties and will vary according to the scope of the use and the nature of the entity using the works.

As we discussed in part 1 of this series, you only need to secure permission to use a sound recording if the recording is being transmitted to the public through digital means. For digital audio transmissions that are interactive, such as Youtube, a voluntary license must be negotiated with the sound recording copyright owner for a master recording license. For digital audio transmissions that are non-interactive, such as Sirius XM or digital cable or satellite television services, a compulsory license is in place, as we will discuss below.

  • Print rights: To print sheet music of a musical composition, a license must first be negotiated between the parties. Print rights can cover both physical printing and digital printing, with digital print rights being nonexclusive.

Compulsory Licenses: There are a number of licenses that are compulsory, meaning that the copyright owner must issue a license to a person seeking to use the work. These licenses include:

  • Cable television rebroadcast: Local broadcasting stations must allow cable companies to re-transmit their signals, for a set fee.
  • Public broadcasting system: Copyright owners must license the use of their published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting.
  • Digital performance of records: Copyright owners of sound recordings must allow performance of their recording if used in a noninteractive digital audio transmission. The four categories of works generally covered by this compulsory license are: eligible nonsubscription services, preexisting subscription services, new subscription services, and preexisting satellite digital audio radio services. Like the PROs mentioned above for public performance rights of musical compositions, SoundExchange is the organization that handles licensing for digital audio transmissions that fall within one of the four categories listed above.
  • Phonorecords and digital downloads of nondramatic musical compositions: Once a non-dramatic musical work has been recorded and released to the public through a phonorecord (e.g. CD, audio DVD, MP3, record), the owner of the musical composition copyright must license use of the composition to anyone who wants to use it in a phonorecord, so long as the licensee does not change the basic melody or fundamental character of the song. This is known as a compulsory mechanical license. Many publishers handle their mechanical licenses through the Harry Fox Agency. In the event that the original work did not meet the requirements for a compulsory mechanical license (e.g. the work was not released to the public, the work was a dramatic musical work, etc.), a voluntary license must be negotiated with the copyright owner.

The compulsory mechanical license is tied to the statutory rate, meaning there is a minimum fee set by law that the licensee must pay for use of the work. Currently, the statutory rate for songs up to 5 minutes in length is 9.1¢ per song per unit. For songs that are greater than 5 minutes in length, the statutory rate is 1.75¢ per minute of playing time, or a fraction thereof, per unit. If, for example you wanted to make a 3-minute recording of a copyright protected song, and distribute 500 copies of your cover, you would need to pay $45.50 for the original composition ($0.091 X 500). If you wanted to make a recording that is 7 minutes and 15 seconds long, with 500 copies distributed, your rate would equal  $70 ($0.0175 X 8= $0.14. $0.14 X 500= $70).

The new media rights of ringtones and permanent digital download are also subject to a compulsory mechanical license. While permanent digital downloads follow the same statutory rates as physical products (9.1¢ or 1.75¢ per minute of playing time or a fraction thereof), ringtones follow a different rate. Non-derivative uses for ringtones are set at 24¢.

This blog has laid out some of the possible revenue streams for musical compositions and sound recordings by mentioning the different situations in which a license must be secured for use of the copyrighted work. This concludes our 4-part series on music copyright.

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Maria Scheid is a graduate of The Ohio State University Moritz College of Law and former legal intern at the Copyright Resources Center at OSU Libraries

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