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Public Domain Day 2017

Today on January 1st, we celebrate Public Domain Day—the day each year where works enter the public domain for many countries around the world following the expiration of their term of copyright protection.

Public domain works are works free of copyright restrictions; works capable of being freely reproduced, shared, and built upon by users. As we have discussed on this blog before, a robust public domain supports the underlying purpose of U.S. copyright law to promote the progress of knowledge and learning.[1]

But while many counties will see new works added to the public domain this year, there will be no published works entering the public domain in the United States. In fact, no published works will be added to the public domain in the United States until 2019.

Why the delay? The U.S. Constitution states that copyright protections may exist only for “limited times,” but our copyright law has been amended several times to extend the length of the term of protection. Under our first federal copyright statute, copyright protection lasted for an initial term of 14 years, renewable for another 14 years. The current term of protection for copyrighted works is the lifetime of the author plus an additional 70 years. As a result of this extension of copyright and Congress’s decision to apply the extension of copyright protection retroactively to existing works, works published in the United States from 1923 to 1977 will remain protected for 95 years after their date of publication. This means that works we would normally expect to enter the public domain today (i.e., published works whose author died in 1946) will not enter the public domain until much later.

For more information on Public Domain Day and works entering the public domain in other countries this year, visit:

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] For this reason, authors today may chose to dedicate their work to the public domain through means such as the Creative Commons Public Domain Dedicator (CC0) tool rather than wait for the term of copyright protection to expire.

An OSU How-To for Licenses and Releases

Creating your own content is a great way to populate a course, presentation, or website with material.  However, if that content creation involves recording others, you will need permission from the people involved to a) record them and b) use their recordings.

Recently, the Copyright Resources Center helped staff at The Ohio State University parse the requirements and procedures surrounding licenses and releases for audio-visual copyrightable content.  The issues that were addressed, and the resources most helpful in resolving them, are described here.  The resources here will be most valuable for those at Ohio State.  For readers outside of Ohio State, the general processes mentioned here may still be helpful.  Similar departments or documents may exist at your institution, and we would highly recommend that you seek them out.

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How to Negotiate a Publication Agreement

Dealing with a publisher may be intimidating, but a little work at the beginning of the publishing journey can eliminate work later.  A publication agreement spells out what rights are being requested via transfer or license from the copyright holder to the publisher.  The rights granted to a publisher can impact your future rights in your work.  If you would like to distribute copies of your work or even reuse it as part of future research, instruction, or professional development, then you may need to negotiate with your publisher.  To get ready for those negotiations, read on!

 

#1 – Educate yourself

Knowing your rights as an author under U.S. copyright law can help you understand the strength of your position when negotiating your publication agreement.  The bundle of rights encompassed by the word “copyright” goes far beyond just making copies of a work and includes the rights to:  reproduce the work, prepare derivative works, distribute the work, publicly perform the work, and publicly display the work.  To get educated and know your rights, we recommend starting with the Copyright Basics and Author’s Rights pages of our website.  They will give you an overview of what copyright is and is not and provide links to additional information.

 

#2 – Know what you want

The second step is knowing what rights you would like to keep.  Many publishers prefer a complete transfer of copyright or an exclusive license.  This allows the publisher to use the work however they deem necessary for publication.  Do you want to share your work when teaching courses?  Do you want to retain the right to translate your work into other languages, or turn it into a movie?  A copyright transfer means that the author, now former copyright holder, may be contractually bound in how they may or may not reuse the work.  Additionally, they may not be able to use the work without a statutory exception or permission from the publisher. Think about how you might use your work in the future, and what rights you should keep to allow those activities.  Then, move on to the next step.

 

#3 – Read your contract

Read your publishing agreement.  While there are any number of variations on publication rights, there are some that publishers typically use.  The three examples below are prevalent among academic publishers.  They are: (i) a complete transfer of copyright to the publisher; (ii) a complete transfer of copyright to the publisher, with an immediate license granted to the author; and (iii) a license given to the publisher, with the author retaining copyright.

 

3A – Transfer of Copyright

This is the most restrictive publishing agreement: You give up your copyright entirely.  The American Medical Association (AMA) requests this type of transfer in a publishing agreement for their journals and newsletters.  The agreement transfers the copyright in a work, in its entirety, to the AMA using the following language:

I hereby transfer, assign, or otherwise convey all copyright ownership, including any and all rights incidental thereto, exclusively to the AMA….

After signing such an agreement, you would be very limited in what you could do with your work.  You would not be able to make copies of your work for teaching or give a reading from your work without permission from the publisher or a statutory copyright exemption.

 

3B – Transfer of Copyright, with License to Author

Some publication agreements transfer copyright in its entirety to the publisher and immediately grant the author limited license(s) to use the work in specific ways.  The American Library Association (ALA) uses this model in a Copyright Assignment Agreement.  After using language similar to that in 3A to obtain full copyright from the author, the ALA goes on to provide the author a limited license:

Publisher hereby grants Author a royalty-free, limited license for the following purposes, provided the Work is always identified as having first been published by Publisher:

  • The right to make and distribute copies of all or part of the Work for use in teaching; …
  • The right to make oral presentations of material from the Work; …

If the uses allowed by the publication agreement cover all the ways you foresee using your work, then this agreement may work for you.

 

3C – Publisher Receives a License, Author Retains Copyright

If the language in your publishing agreement isn’t asking for a complete copyright transfer, it is likely asking you to give the publisher a license.  The Journal of Machine Learning Research (JMLR) requests a license in order to publish accepted articles in the journal.  The pertinent language in their “Nonexclusive Publication Agreement” is below:

…we need from every author whose work is to appear in JMLR certain nonexclusive licenses…. You hereby give to MIT Press the right to be the first publisher of the article in print form…. You hereby give to the Sponsor the right to be the first publisher of the article in electronic form.

MIT Press is asking for a nonexclusive[1] license, which means that you can exercise your rights as copyright owner without asking for permission from JMLR.   Be prepared to inform any subsequent publishers about prior publications.

 

#4 – Negotiations

Based on the type of publication agreement you received, you may have to adjust your expectations of what can be negotiated.  A publisher requesting a copyright transfer is less likely to allow an author to keep copyright and grant the publisher a limited license.  When setting your expectations, it may be helpful to ask others who have worked with your publisher about their experiences.  This is particularly true if they tried, successfully or not, to negotiate their agreement. Some Universities have created resources to help authors negotiate their rights.  In particular, the Universities of the Big 10 Academic Alliance have created an Addendum that authors can use when negotiating with their publisher.  This addendum works to preserve rights that academic authors commonly wish to keep, all of which look towards removing restrictions from the flow of information and allowing a freer exchange of ideas.

 

#5 – Make all edits/changes in writing

Whenever copyright is transferred, it must be in writing and signed.  One small exception is that a nonexclusive license does not require a signature.  In addition, it is recommended that you keep records of your negotiations with the publisher.  Note the date you send your request for modification, how you send it (email, postal service, inter-office mail), when you get a response, and of course what the response is.  An email will fulfill the requirement for a writing, so be sure to always review your emails before you hit “send”.  If you orally negotiate a change in your publication agreement, get those changes in writing.  Take extensive notes, summarize your notes in an email, and send it to the publisher with a request that they confirm the information is correct.

 

Conclusion

The opportunity to negotiate is always available.  The publisher may not agree to all of your requests, but asking can ensure that you retain important rights in your work and save you from hassle down the road.  Knowing your rights, and which of those rights a publisher is requesting, can help assess a publication agreement and determine what changes, if any, you would like to make.  Taking copious notes, and always getting any changes to a publication agreement in writing, will make your negotiations enforceable and truly protect your ability to use your work.

If there is any confusion over what a publication agreement is requesting, check out Phrases to Look for in Publisher Copyright Agreement Forms.  For questions on your rights or your publication agreement, feel free to reach out to the Copyright Resources Center by posting a comment here on the blog, tweeting at us (@OSUCopyright), or sending us an email.

Have you negotiated a publication agreement?  Were you successful in getting the changes you requested?  Let us know what your experience was like by leaving us a comment!

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By Marley C. Nelson, Rights Management Specialist, and Sandra A. Enimil, Head of the Copyright Resources Center, The Ohio State University Libraries.

 

[1] A nonexclusive license is a contract that allows a copyright owner to grant another party the ability to exercise one of the bundle of rights contained in copyright, while retaining the ability to simultaneously exercise that right.  These licenses are at times given for a limited length of time.  An exclusive license grants another party the ability to exercise one or all of the rights contained in copyright, but does not allow the copyright owner to simultaneously exercise those rights.  An unlimited exclusive license has little, aside from its name, to distinguish it from a full transfer of copyright.

Open Access Week 2016

To kick off this year’s Open Access Week, we are sharing information on open access workshops offered by The Ohio State University Libraries throughout the week. This blog post first appeared on the Research Commons blog.

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Open Access Week Logo

Open Access Week 2016 by SPARC is licensed under CC-BY 4.0 (cropped).

 

Next week, October 24-30, 2016, we celebrate the 9th International Open Access Week. This year’s theme is “Open in Action” and will highlight ideas for taking action to open research and scholarship.

Open Access Week is a yearly global event to spread awareness of Open Access, a movement that supports free and immediate access to research. The Open Access movement seeks to maximize the impact and accessibility of published research through the removal of financial and use restrictions placed on research. Interested in learning more about Open Access? Peter Suber’s “Open Access Overview” provides a great summary of the Open Access movement and the different forms and vehicles through which Open Access research may be shared.

Join us at the Research Commons and Thompson Library to celebrate Open Access by attending an OA workshop offered by The Ohio State University Libraries next week:

 

Open Access: Know Your Rights, Share Your Research

This workshop will cover the basics of copyright and open access, including understanding your rights as an author, sharing your research to a broader audience, and publishing in open access journals. Presented in conjunction with International Open Access Week, this workshop will feature speakers from the University Libraries’ Copyright Resources Center and Publishing and Repository Services department. Light refreshments will be provided, and our presenters will be available afterward for consultations.

Light refreshments will be provided, and our presenters will be available afterward for consultations.
When: Tuesday, October 25, 11:00am – 12:30pm
Where: Research Commons, 3rd floor of the 18th Avenue Library

Register: go.osu.edu/oa-workshop

 

Open Access Week: Creative Commons

Please join the University Libraries’ Copyright Resources Center for a workshop on Creative Commons (CC). The session will introduce CC and explore how CC licenses benefit creators and users of licensed material. These licenses contribute to affordability and the development and use of Open Educational Resources, a particularly relevant topic for us in light of the university-wide focus on affordable learning. Bring your questions!

When: Wednesday, October 26, 10:00 am-11:30 am

Where: Thompson Library, Room 165

RSVP: http://go.osu.edu/oa-creativecommons

 

Open Data: A Panel Discussion

Curious about Open Data? Want to know more about where to find Open Data to use in your own research, or how to make your data open to comply with funding agency mandates? Have your top concerns and questions addressed by a group of campus experts – all who are interested in Open Data are welcome!

This event is part of Data Analytics Month @ Ohio State. Learn more at: go.osu.edu/dataanalyticsmonth.

 

When: Wednesday, October 26, 2:00 – 3:30pm
Where: Research Commons, 3rd floor of 18th Avenue Library

Register: go.osu.edu/opendata-panel

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Debunking Top Copyright Myths: The Myth of the Innocent Infringer

A persistent myth in the world of copyright law is that of the innocent infringer.  This particular myth takes two forms, both of which will be addressed in this post.  The first is the myth of a complete defense, in that if you didn’t know you were infringing someone’s copyright, you can’t be found liable.  The second is a partial defense, in that if you didn’t know you were infringing someone’s copyright, although you may be found liable, you won’t have to pay any damages.

Neither of these is correct.  Where did this myth come from and why does it persist? This is best answered by looking at the history of United States copyright law.  Let’s take a trip in the copyright time machine (CTM)!

The first stop is in 1790.  Back then, being an innocent infringer meant you were not liable for infringement.  The Copyright Act of 1790 required that an infringer be “knowing”[1] with regards to the copyright status of the work.  There was actually a mens rea[2] component to copyright infringement.  Not only would you not have had to pay any damages, but you had not actually committed copyright infringement in the first place.  Which is good, because the statute required that “offenders shall… forfeit and pay the sum of fifty cents for every sheet which shall be found in his or their possession”[3]Translated into 2015 dollars, that $0.50 could be as much as $47,500[4] per page! This protection afforded innocent infringers was incredibly valuable.

Unfortunately for innocent infringers, those protections have been stripped away over the ensuing versions of United States copyright law.  Jumping back in the CTM, we can skip ahead to 1909, a year of major revision in U.S. copyright law.  The Copyright Act of 1909 removed the “knowing” requirement, making copyright infringement a strict liability offense.  This meant that if someone made an illegal use of a protected work, they had infringed copyright.  Their mental state was irrelevant and innocent infringement was no longer a defense to copyright infringement.  This was the end of innocent infringement as a total defense to liability for copyright infringement.  The 1909 Act did, however, prevent defendants from having to pay any damages if they could show that they were an innocent infringer who was “misled by the omission of the [copyright] notice”[5].  So in that very specific instance of innocent copyright infringement, a defendant could avoid having to pay damages.

Hopping back into the CTM, let’s fast forward to 1989 and the current version of United States copyright law.  Here, we have the Copyright Act of 1976[6], as influenced by the Berne Convention[7].  Copyright infringement is still a strict liability offense under this version of U.S. copyright law, so innocent infringement is no defense to liability.  It’s also harder to avoid paying some kind of monetary award if an individual is found liable.  Yet, innocent infringement does provide a small sliver of relief for some defendants under the 1976 Act.

The first is for an infringer who “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright”[8].  In this instance, a “court in its discretion may reduce the award of statutory damages to a sum of not less than $200”[9].  That might sound great, but let’s look a little more closely.  First, a defendant bears the burden to prove that they were not aware that their work was infringing copyright.  Second, even if they meet that burden, the court still has discretion in reducing damages.  This means the court may not reduce damages, even if the defendant proves the infringement was innocent.  Third, damages are only reduced, not eliminated completely.  Fourth, and finally, this is only an option if the plaintiff in the case chooses to be awarded pre-defined statutory damages, as opposed to actual damages and profits[10]. To add insult to this injury, a defendant may still be on the hook for the plaintiff’s court costs and attorney’s fees[11].  These fees can amount to hundreds of thousands of dollars, if not more.  For example, the attorneys who successfully argued that the happy birthday song is not protected by copyright were awarded over four million dollars in fees[12].

The second is for an infringer who “believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment … or (ii) a public broadcasting entity”[13] or an employee of a public broadcasting entity.  If an infringer falls into one of those specific employment categories and reasonably believed that their use was a fair use, then no damages will be assessed.  Of course, just like in the first example, the infringer could still be liable for paying the plaintiff’s court costs and attorney’s fees.

Today, innocent infringement is no longer a defense in a copyright infringement case, and even an unwitting infringer could be liable for what might be extremely high court costs and attorney fees.  Innocent infringement, as a defense to liability or a method of obtaining complete relief from liability for damages, no longer exists and we have come a long way since 1790.  Do you think these changes are an improvement?  Leave a comment and let us know how you feel about the treatment of “innocent” infringers in United States copyright law!

Please visit the other post in our series – If there’s no (c), is it copyrighted?

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By Marley C. Nelson, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] Copyright Act of 1790, 17 U.S.C. §2 (1790).

[2] “Mens rea” means guilty mind.  In order to be found guilty of many crimes, you must commit an illegal act (e.g. copying someone else’s copyright protected work) while having a certain level of intent to do so (e.g. knowing the work is protected by copyright).

[3] Copyright Act of 1790, 17 U.S.C. §2 (1790).

[4] Samuel H. Williamson, “Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1774 to present,” MeasuringWorth, 2016.  Accessed via https://www.measuringworth.com/uscompare/relativevalue.php on 08/31/2016.

[5] Copyright Act of 1909, 17 U.S.C. §20 (1909).

[6] Copyright Act of 1976, 17 U.S.C. §1 (1976).

[7] The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853.  Accessible at http://uscode.house.gov/statutes/pl/100/568.pdf

[8] Copyright Act of 1976, 17 U.S.C. §504(c)(2) (1976).

[9] Copyright Act of 1976, 17 U.S.C. §504(c)(2) (1976).

[10] See, generally, Copyright Act of 1976, 17 U.S.C. §504 (1976).

[11] Copyright Act of 1976, 17 U.S.C. §505 (1976).

[12] See, e.g., Andrew Blake, Attorneys awarded $4.6 million over ‘Happy Birthday’ copyright claim, Washington Times August 19, 2016.  Accessed via http://www.washingtontimes.com/news/2016/aug/19/attorneys-awarded-46-million-over-happy-birthday-c/.

[13] Copyright Act of 1976, 17 U.S.C. §504(c)(2) (1976).

Debunking Top Copyright Myths – Part One

The first myth we’re debunking is one of the most common:  If it doesn’t have a copyright symbol (©), then there’s no copyright protection, right?

How did this particular misconception start?  To answer that, we’re going to have to take a trip in the copyright time machine, back to 1909 [1].  That was the year Congress made its second major update to the copyright law of the United States (the first was in 1831 [2], when Congress granted copyright protection to musical compositions and extended the original copyright term for a protected work from 14 years to 28 years).  Under the 1909 Act, cleverly entitled “Copyright Act of 1909”, there were a couple of hoops that creators had to jump through before their works were protected by copyright.

The first hoop that creators had to jump through was publication.  In 1909, publication was usually required before a work was protected by copyright [3].  So before a work could be protected by copyright, there had to be “copies… reproduced for sale or distribution”. [4]  The second hoop was that, in addition to a work being published, it also had to include an appropriate notice of copyright:

[T]he notice of copyright required by [the 1909 Copyright Act] shall consist either of the word “Copyright” or the abbreviation “Copr.”, accompanied by the name of the copyright [proprietor], and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication.  In the case, however, of copies of works specified in subsections (f) to (k), inclusive of section five of this Act, the notice may consist of the letter C [enclosed] within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear.” [5]

Basically, you had to have a conforming notice of copyright in or on your published work before it would receive copyright protection.  In 1909, the United States  expected certain formalities of rights holders in order to receive copyright protection.  This notion, that copyright protection wasn’t something you could just hand out to anyone, held on for decades and reappeared in the next major revision of U.S. copyright law.

Let’s jump back in the copyright time machine and fast forward to 1976, when the also creatively named “Copyright Act of 1976” was signed into law.  The 1976 Act superseded and replaced the 1909 Act, becoming the new statutory sheriff in the town of copyright.  When it was first enacted, the Copyright Act of 1976 also required that published works include a copyright notice before they could be granted copyright protection [6].  The language of the requirement had changed a bit, but it still required the word copyright, or an abbreviation like “Copr.” or “©”, the year of first publication, and the name of the copyright owner [7].  With some exceptions, works that did not contain a proper copyright notice were not protected works, and fell into the public domain.  Those requirements might have lasted into the distant future, if not for this pesky little thing called the rest of the world. The United States had to come into the fold of the rest of the world at some point.

Let’s jump back in the copyright time machine and head to March 1, 1989.  That was the date The Berne Convention Implementation Act of 1988 took effect [8] in the United States.  The Berne Convention for the Protection of Literary and Artistic works[9] (better known as the Berne Convention) is an international copyright agreement with 171 member parties (including the United States[10].  The Berne Convention first came into effect in Berne, Switzerland, in 1886.  Originally a treaty between eight nations (Spain, Great Britain, France, Haiti, Liberia, Switzerland, Tunisia, and Germany), 22 years later the number of signatories had almost doubled.  Today, nearly every country in the world is a member party of the Berne Convention (171 countries out of 206(ish) total [11]).  Despite the trending popularity of the Berne Convention, the United States refused for over 200 years to sign on to the agreement.  This was in large part because becoming a member party would require rather substantial changes to the copyright law of the United States.  In particular, it would require that copyright law in the United States “not be subject to any formality” [12].  In effect, the Berne Convention forbids the United States from requiring any formalities – such as registration with the Copyright Office or publication with notice – before granting a creator copyright protection for their work.

Once The Berne Convention Implementation Act of 1988 took effect, copyright protection in the United States became automatic.  Gone was the requirement that a copyright notice be affixed to a work.  Gone was any requirement that a work be registered with the Copyright Office.  Current copyright law in the United States provides that copyright protection attaches instantly and automatically to “original works of authorship fixed in any tangible medium of expression” [13].

What does this mean?  For one thing, if you’re still reading this it means you have incredible staying power when it comes to muddling through somewhat dry information about the history of copyright in the United States!

It also means that all types of materials, even if they have no copyright notices on them, are protected by United States copyright law.  That, in turn, means that your use of content without either permission from the creator or an appropriate exception to copyright protection would be copyright infringement.

At this point, I know what you’re thinking.  “Well if we don’t need to follow any formalities to be protected by copyright, then why do we have a Copyright Office at all?”

That may not be exactly what you were thinking, but just play along.

While copyright protection requires neither registration nor notice, there are some benefits to both.  If a copyright owner does want to sue someone for copyright infringement, they may not do so in federal court unless their copyright is registered.  And if a work does include a copyright notice, it prevents mischievous copyright infringers from claiming that their infringement was innocent, meaning that they didn’t know the work was copyrighted.

Speaking of which, we invite you to read the other post in our series – The Myth of the Innocent Infringer.

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Please leave a comment telling us about your experiences with this copyright myth!

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By Marley C. Nelson, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

 

[1] Copyright Act of 1909, 17 U.S.C. §1 (1909).  Accessible at http://www.copyright.gov/history/1909act.pdf.

[2] Copyright Act of 1831, 17 U.S.C. §1 (1831).  Accessible at http://www.copyrighthistory.org/cam/tools/request/showRepresentation?id=representation_us_1831.

[3] Copyright Act of 1909, 17 U.S.C. §1 (1909).

[4] Copyright Act of 1909, 17 U.S.C. §62 (1909).

[5] Copyright Act of 1909, 17 U.S.C. §18 (1909).

[6] Copyright Act of 1976, 17 U.S.C. §401 (1976).

[7] Copyright Act of 1976, 17 U.S.C. §§401-406 (1976).

[8] The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853.  Accessible at http://uscode.house.gov/statutes/pl/100/568.pdf.

[9] The Berne Convention for the Protection of Literary and Artistic Works, opened for signature 9 September 1886, 1161 UNTS 30 (entered into force 5 December 1887).  Accessible at http://www.wipo.int/treaties/en/text.jsp?file_id=283698.

[10] See Copyright Office Circular 38a. (38A.0416), page 8.  Accessible at http://www.copyright.gov/circs/circ38a.pdf.

[11] See https://en.wikipedia.org/wiki/List_of_sovereign_states, or https://www.cia.gov/library/publications/the-world-factbook/index.html.

[12] Article 5(1) of the Berne Convention. Accessible at http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P109_16834.

[13] 17 U.S.C. §102(a).

The Ohio State University Libraries and the Health Sciences Library Announce a Pilot Program to Combine Copyright Services

The one-year pilot program, beginning September 1, 2016, will consolidate services across the two offices, making the University Libraries’ Copyright Resources Center the single access point for copyright questions and copyright consultation requests from faculty, staff, and students of the university. The Health Sciences Library will provide financial support to the Copyright Resources Center to offset the costs of adding services for Health Sciences Library patrons. The pilot program will be evaluated at the six and twelve month mark.

The partnership is an extension of the existing collaborations between the Health Sciences Library and University Libraries’ copyright units. The pilot program aims to minimize patron confusion on where to go with copyright questions, supporting the university’s value of collaborating as “One university.”

For further information about the pilot program, please contact libcopyright@osu.edu.

Articles of Interest: January-June 2016

This post highlights articles published in the first half of 2016 with a focus on copyright, especially as it pertains to libraries, higher education, and 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!

Copyright

Albanese, A. (2016). Google case ends, but copyright fight goes on. Publishers Weekly263(17), 4-6. [OSU full text] / [OA full text]

Aufderheide, P., & Sinnreich, A. (2016). Documentarians, fair use, and free expression: Changes in copyright attitudes and actions with access to best practices. Information, Communication & Society19(2), 178-187. doi:10.1080/1369118X.2015.1050050 [OSU full text]

Hellyer, P. (2016). Who owns this article? Applying copyright’s work-made-for-hire doctrine to librarians’ scholarship. Law Library Journal, 108(1), 33-54. [OSU full text] / [OA full text]

Hess, J., Nann, A., & Riddle, K. (2016) Navigating OER: The library’s role in bringing OER to campus. The Serials Librarian, 70:1-4, 128-134. doi:10.1080/0361526X.2016.1153326 [OSU full text]

Pike, G. H. (2016). Trans-Pacific Partnership: The devil in the details. Information Today33(1), 1-25. [OSU full text]

Libraries

Banks, M. (2016). What Sci-Hub is and why it matters. American Libraries47(6), 46-48. [OSU full text]

Dygert, C., & Barrett, H. (2016) Building your licensing and negotiation skills toolkit. The Serials Librarian, 70:1-4, 333-342. doi: 10.1080/0361526X.2016.1157008 [OSU full text]

Enis, M. (2016). Please rewind. Library Journal141(10), 45-47. [OSU full text]

Finley, T. K. (2016). The impact of 3D printing services on library stakeholders: A case study. Public Services Quarterly, 12(2), 152-163. doi:10.1080/15228959.2016.1160808 [OSU full text]

Graham, R. G. (2016). An Evidence-Informed Picture of Course-Related Copying. College & Research Libraries77(3), 335-358. [OSU full text] / [OA full text]

Lipinski, T. A., & Chamberlain Kritikos, K. (2016). Copyright reform and the library and patron use of non-text or mixed-text grey literature: A comparative analysis of approaches and opportunities for change. Grey Journal (TGJ), 12(2), 67-81. [OSU full text]

Luo, L., & Trott, B. (2016). Ethical issues in reference: An in-depth view from the librarians’ perspective. Reference & User Services Quarterly55(3), 189-198. [OSU full text] / [OA full text]

Nilsson, I. (2016). Developing new copyright services in academic libraries. Insights: The UKSG Journal29(1), 78-83. doi:10.1629/uksg.276 [OSU full text] / [OA full text]

Publishing & Scholarly Communication

Beard, R. M. (2016). An investigation of graduate student knowledge and usage of open-access journals. Journal of Electronic Resources Librarianship28(1), 25-32. doi:10.1080/1941126X.2016.1130453 [OSU full text]

Bennett, L., & Flanagan, D. (2016). Measuring the impact of digitized theses: A case study from the London School of Economics. Insights: The UKSG Journal29(2), 111-119. doi:10.1629/uksg.300 [OSU full text] / [OA full text]

Schlosser, M., (2016). Write up! A study of copyright information on library-published journals. Journal of Librarianship and Scholarly Communication. 4, p.eP2110. doi:10.7710/2162-3309.2110 [OA full text]

Sims, N. N. (2016). My unpublished research was scooped? College & Research Libraries News77(6), 296-301. [OSU full text] / [OA full text]

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Copyright Roundup, Part III

Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.

More Fair Use Victories:

Cambridge University Press v. Becker

Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis.  The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.

On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”

Oracle v. Google

Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system.[1] After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.

But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library.  In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).

Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development.  In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work.  Take for example, the simple task of printing this blog post.  Think about what’s really happening.  The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer.  Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies.  However, the applications and services can communicate together due to the utilization of a common set of APIs.”

The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development.  Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration.  This integration is possible due to the availability of common APIs.”

Oracle has stated their intention to appeal the decision.[2]

Continue reading

Copyright in Comedy

Comedian Conan O’Brien made news last summer when he found himself the subject of a lawsuit alleging copyright infringement for the use of four jokes in his opening monologues.[1] The jokes were previously published on the personal blog and Twitter account of comedic writer Robert Kasberg. While most accusations of joke theft do not result in the legal action faced by Conan O’Brien, accusations themselves are not atypical in the world of comedy. D.L. Hughley, George Lopez, Robin Williams, Carlos Mencia, Milton Berle, Chris Rock, Dane Cook, Denis Leary, and Amy Schumer are just a handful of comedians who have been the subject of such accusations.

If these accusations are founded in instances of actual unauthorized reuse of material, what legal protections or avenues for recourse do comedians have to protect their comedic works? In this blog post we will look at what rights and challenges comedians face in protecting their works under U.S. copyright law.

 

Copyright Protection for Jokes

Can you copyright a joke? Like many questions in copyright law, the answer is “it depends.” Under U.S. Copyright Law, original works of authorship that are fixed in a tangible medium of expression are eligible for copyright protection. While many jokes and comedic routines may meet these requirements, there are a number of initial barriers to protection that authors may face.

Originality: Originality requires that a work be independently created and have a minimal degree of creativity.[2] Comedic works do not need to be novel to receive copyright protection, but the author must create the work without copying the original expression of another. When similar jokes are both based on a current event, for example, is it more likely that both comedians based their comedic material on a common news source, rather than the other’s original material. Works must also possess at least a spark of creativity. While the requisite level of creativity is low, copyright will not protect ideas (including narrative structure or general plotlines), concepts, or common themes.

In addition, there may be situations in which there are only a limited number of ways to express an idea. If this situation exists, the idea merges with the expression, and the expression becomes uncopyrightable (this is referred to as the merger doctrine in copyright law). Similarly, copyright will not protect standard expressions or stock characters or events that are ordinary to a particular subject matter (this is referred to as the scènes à faire doctrine in copyright law). The structure of a knock-knock joke, for example, cannot be copyrighted.

Fixation: Fixation requires a work to be permanent enough to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. The work must be embodied in a material object by or under the authority of the author. This may include written text (e.g., a book, script, or Tweet), a recorded podcast, DVD, or even a live broadcast.[3] Despite the many ways in which a work may be fixed, comedians may not satisfy the fixation requirement in cases of unrecorded improvisation or live routines. Comedians may also face issues as they adapt and modify their routines over time or if their routine changes based on an unpredictable element, such as audience interaction.

 

Increasing Reliance on Social Norms

Given these initial barriers, some jokes may not qualify for copyright protection or the copyright protection received may be fairly thin. This reality aligns with the findings of a major study conducted by Dotan Oliar and Christopher Jon Sprigman that analyzed how stand-up comedians protect their jokes.[4] Following a series of interviews with comedians, Oliar & Sprigman found that most comedians are not relying on the formal legal protections of copyright law to protect their works, and instead rely on a system of somewhat recently developed social norms. These social norms developed contemporaneously with a change in the nature of stand-up comedy—comedians are now investing more effort in the development of original textual material and investing less effort to the performance element of their routines.

Of the norms identified, the most prominent norm governing the behavior of stand-up comedians is the norm against appropriation, the violation of which is often detected by fellow comedians viewing peer performances.[5] While the initial step to enforcing this norm is negotiation (the author of the work will request for the appropriator to cease using the material), the norm may also be enforced through informal sanctions, including attacks on reputation and refusals to deal, both of which may result in limited work opportunities for the appropriator.[6]

A reputation as a joke thief can have a disastrous impact on a comedian’s career. Because the comedic community is relatively small, reputation and respect among peers is of great importance. Comedians retaliating against alleged joke theft may refuse to share the same bill as the accused and booking agents and club owners may refuse to engage with the alleged thief.  These refusals to deal directly hamper an individual’s ability to find work and build a fan base.

Additional findings from the study reveal private enforcement to be a more legitimate response to the violation of the norm than public enforcement, with comedians revealing themselves to be unreceptive to the appropriation of comedic ideas, even when such ideas would fall outside the scope of copyright protection.[7] Unlike copyright, the norm against appropriation has no term limit (at no point do jokes become free to use as works in the public domain may be freely used) and the norm is less likely to be successfully enforced when the alleged joke thief has a reputation as a more popular comedian that the accuser.[8]

Additional norms include a norm against joint authorship (the comedian who comes up with the premise of the joke is the owner of the joke), a norm regarding priority (the comedian who can present evidence of first performance is given priority), a norm regarding works made for hire (parties who pay for a joke own it, even if conditions for a work made for hire are not met), and a norm regarding transfers (oral agreements are enough to divest copyright ownership).[9] For comedians, these social norms function to fill the gaps left by a cost-prohibitive legal system, while arguably providing more incentive to generate new comedic material.

 

Shifting Norms & the Future Role of Legal Enforcement

New technologies may allow comedians to more clearly establish public timelines, evidence of independent creation of jokes, and fixation of comedic material. These new technologies and services may also provide easier avenues for copyright enforcement through automated or streamlined takedown processes designed to protect the interests of copyright owners.  Freelance writer Olga Lexell, for example, was able to rely on such a process last July when she found her jokes reposted across Twitter. After a simple takedown request, Twitter removed the allegedly infringing content.[10]

The social norms detailed in Oliar & Sprigman’s study were published in December 2008; four years after the launch of Facebook, three years after the launch of YouTube, two years after the launch of Twitter, and two years prior to the launch of Instagram. As public recordation and enforcement becomes easier through the adoption of these social media platforms, it remains to be seen how, if it all, the cultural norms already relied on within the industry will shift.

It is possible that these new technologies and services will make formal legal enforcement more attractive to comedians. Or perhaps the same or new social norms, or the adoption and enforcement of these norms by a comedian’s social media followers or the general public, will continue to provide an effective alternative or supplementary form of enforcement for both allegations of copyright infringement and broader claims of plagiarism.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] Kaseberg v. Conaco, LLC et al., Case No. 15-CV-01637-JLS-DHB, U.S. District Court for the Southern District of California (2015).

[2] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991).

[3] The term fixed is defined to include “[a] work consisting of sounds, images, or both, that are being transmitted…simultaneously with its transmission.” 17 U.S.C. § 101.

[4] Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008).

[5] Id. at 1812.

[6] Id. at 1815.

[7] Id. at 1821–22.

[8] Id. at 1824.

[9] Id. at 1825–31.

[10] Laura Sydell, Twitter Takes Down Unoriginal Jokes, But All of Yours Are Probably Safe, NPR (July 28, 2015), http://www.npr.org/sections/alltechconsidered/2015/07/28/426900829/twitter-takes-down-unoriginal-jokes-but-all-of-yours-are-probably-safe.

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