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Scholasticus: I maintain a personal website dedicated to my research, is it okay to post copies of articles and book chapters I’ve authored there?

Many faculty members maintain a web presence dedicated to their research and professional activity, whether through their employing University’s web server or through a third party host such as WordPress. Faculty members are also increasingly utilizing sites like Academia.edu to collate and showcase their scholarly works. Oftentimes, faculty post to these sites PDF or other digital copies of the final published version of works they’ve authored. However, doing so may be copyright infringement.

When publishing an article or book chapter with a publisher that does not utilize creative commons licensing or does not otherwise make the content open access copyright is often transferred by the author to the publisher. The terms of these copyright transfer agreement frequently strip away an author’s right to post the published version of their work. As a result, copyright infringement occurs when the work is posted on a web site without the permission of the publisher, who is now the copyright holder.

To preserve the right to post a copy of one’s own work on a personal web site or even in an institutional repository or other open access repository, faculty need to be mindful of the terms of any agreement they sign with a publisher. The author is the copyright holder until he or she transfers the copyright to someone else in a signed agreement.  Normally, the copyright holder possesses the exclusive rights of reproduction, distribution, public performance, public display, and modification of the original work. An author who has transferred copyright without retaining these rights must ask permission unless the use is one of the statutory exemptions in copyright law. Authors who transfer their copyright without retaining any rights may not be able to place the work on course Web sites, copy it for students or colleagues, deposit the work in an open access repository or reuse portions in a subsequent work. That is why it is important to retain the rights you need.

Publishers’ agreements (often titled “Copyright Transfer Agreement”) have traditionally been used to transfer copyright or key use rights from author to publisher. They are written by publishers and usually capture more of an author’s rights than are necessary to publish the work. Publishers do not need a wholesale transfer of copyright to accomplish publication. Publication agreements are negotiable, either through amendment of the agreement’s express terms or use of an author’s addendum, such as the SPARC Author’s Addendum). The only rights publishers need are:

  • A non-exclusive right to publish the work first and distribute a work and receive a financial return;
  • Proper attribution and citation as journal of first publication; and
  • Right to migrate the work to future formats

At a minimum, authors should seek to retain the right to post the manuscript copy post-peer review as accepted for publication, but before a publisher typesets and finalizes it. This is often referred to as the “pre-print” version.

Another option is to publish works in open access journals. Open access publications allow authors to retain their full copyright; only a license is granted to the publisher to make the work available through their online publication.

Scholasticus: Charging for the Public Domain

I would like to include late 19th century photographs of the Westward expansion in an article I’m writing but a historical society is claiming copyright in them and is requesting payment of a fee before granting me permission to include them in my publication. Do I have to pay these fees even if the photos are in the public domain?

Law professor Jason Mazzone describes this common practice as “copyfraud. In a 2006 New York University Law Review article, he wrote:

Copyfraud…refers to claiming falsely a copyright in a public domain work. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the putative “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use, or altering their creative projects to excise the uncopyrighted material….False assertions of copyright are everywhere. In general, copyright belongs to the author of a published work and expires seventy years after the author’s death. Yet copyright notices appear on modern reprints of Shakespeare’s plays, on Beethoven’s piano scores, and on greeting card versions of Monet’s Water Lilies. Archives claim blanket copyright in everything in their collections, including historical works as to which copyright, which likely never belonged to the archive in the first place, has long expired.

Unfortunately, there is nothing in U.S. Copyright law to prevent or penalize organizations, societies, libraries and publishers posting a copyright notice on items in which they do not hold copyright and proceeding to collect royalty from the unsuspecting and the fearful. Under U.S. law, the duration of copyright protection for items created (publication or registration are not required) after Jan. 1, 1978 is the life of the author plus 70 years. For items created before that date, the duration of copyright protection is not so simply summarized. Copyright protection terms varied prior to 1978 and were reliant upon registration and renewal requirements that are not part of the modern law.

Works first published or registered in the U.S. prior to 1923 are in the public domain. No entity can claim copyright or charge for use of these works. For works created between 1923 and 1977, the duration of copyright protection depends upon several factors: whether there was publication with or without notice, whether there was registration, and whether there was renewal. I recommend using the chart prepared by Cornell University for works created between these dates. It is also important to note, that what is discussed above applies to U.S. works only. Works created by foreign authors and published in their respective home countries are subject to their intellectual property laws.

Mazzone, Jason. “Copyfraud.” New York University Law Review. Vol. 81, No. 3 (2006): 1026-1100.

For more on the problem of Copyfraud, visit the Public Domain Sherpa.

(Thank you to my UF library colleagues for the idea for this post.)

Scholasticus: When is showing a film a public performance?

I have asked my university’s library to purchase a film that I intend to show and discuss in my class. The company selling the DVD indicates that the library must purchase the more expensive “college/university” copy so that public performance rights are secured. Is showing a film in my class a public performance?

Any librarian who has worked in acquisitions or who has been a selector for their institution’s library has encountered the ethical dilemma of whether to purchase the institutional copy of a DVD. Most distributors of documentary films will list in their catalogs or on their web sites tiered pricing for individuals, public libraries, primary and secondary schools, and colleges or universities. An explanation typically accompanies the pricing scheme that the higher price charged to the various institutions accounts for the inclusion of a public performance license. Most college or university libraries, without question or challenge, pay the higher price – and often the only group viewing of the film occurs in class.  So, must the library pay the public performance license price if the only intended viewing of the film is by patrons in private viewing session (even if in the library) or in the physical classroom by a class and its instructor during a regular class session? The answer is: No.

Nothing in the Copyright Act prohibits a library from purchasing DVDs (even those labeled for Home Viewing Only, as is often the case with Hollywood-produced films released on DVD) and lending or renting them to their patrons for personal viewing. Further, under § 110(1) of the Act, educators are permitted to perform or display audiovisual works in a physical classroom setting as part of instructional activities. Thus, purchase of a public performance license is not required for DVDs purchased for and used for these purposes. A public performance license is necessary, however, when a DVD in a library’s collection is going to be screened in a public location on campus by a club or other group or if the library itself is going to show the film. Only if the library knows when purchasing the DVD that these latter uses are intended should it feel compelled to pay the higher price charged. Otherwise, a college or university library is not in violation of copyright law, and shouldn’t be threatened into paying the higher purchase price,when acquiring a DVD without a public performance license for its collection.

 

(A special thanks to my former Graduate Assistant (who is also a lawyer and now an academic librarian) for inspiring this edition of Scholasticus.)

Scholasticus: On streaming video

May a faculty member who is teaching online digitize and stream documentary and Hollywood produced films in their entirety in order to illustrate a theme being covered in that class?

Earlier this week, I gave a presentation at Electronic Resources & Libraries on the rise in demand at colleges and universities for streamed video and how libraries can best address this need on the part of teaching faculty. Part of my discussion addressed the challenges copyright compliance presents in meeting this need. The Copyright Act at §110(1) addresses the performance of films in a face to face classroom. The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. And then there is still the application of fair use in the event the requirements of TEACH are not met. Oh, and let’s not forget, there is the DMCA, prohibiting the circumvention of technological prevention measures (TPM) on DVDs and other media for the purpose of copying and distributing their content. Thus, what may a professor do?

Digitizing and streaming an entire DVD is likely not permissible. Recently, an exemption under the DMCA was expanded to permit faculty of any discipline (as opposed to the previous extension to only film studies professors) to circumvent TPM in order to make clips of films for use in teaching and research. Under TEACH, there is the express limitation on quantity, and it is unlikely that an argument can be made that an entire film constitutes a reasonable and limited portion. In the Congressional Research Report prepared in connection with TEACH, it is stated:

Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal; however, the likelihood of an entire film portrayal being “reasonable and limited” may be rare. [emphasis added]

A fair use argument for streaming an entire film also is flawed. Factors two and three weigh against fair use given the creative nature of film making and the quantity used.  Recently, it has been suggested that because the purpose of the use is for other than entertainment, that it is transformative and under factor one fair use is favored. Whether there is a substantial effect on the market under factor four has been raised as an issue in the complaint against UCLA.

But faculty are not without alternatives should streaming an entire film not be permissible under current copyright law. There are many sources for streaming video content available that students can access on their own. For instance, the subscription service Netflix offers thousands of documentaries and mainstream film titles on a streaming basis for an affordable monthly fee that most students likely already pay. Additionally, sites like Amazon and iTunes offer inexpensive streaming video rental. Further, many commercial distributors of films offer licensing of streaming content, although the cost varies across vendors and is dependent upon a variety of factors.

Scholasticus: License and Registration, Please.

Does an author have to register a work with Copyright Office in Washington in order to have a copyright in his work?

Once a work is created in a fixed and tangible form, copyright ownership immediately vests in the creator of the work. Registration or publication of notice with the Copyright Office is not required. Further, use of a copyright symbol or similar notation is no longer required in order to claim copyright in an authored or created work.  However, registration does become important if infringement occurs and the owner wishes to pursue legal remedies.  Registration, particularly if done in a timely manner, creates a legal presumption of validity and allows an owner to recover a certain level of damages and fees. Further, registration can help defend against a claim of innocent infringement, which mitigates against an award of damages. It is important to remember that even if an owner registers his or her copyright in a work, the exemption of fair use still applies.

Aside from formal registration, another means that creators and authors can use to give notice of not only their status as owner of a work but also of their extension of permission to use their work is through a Creative Commons license.  Copyright law, as written, creates an “all rights reserved” form of license. However, persons interested in the sharing of knowledge, the creation of new culture, and the encouragement of further scholarship can designate through a Creative Commons license commercial and/or non-commercial uses of their work that are permitted.  There are a variety of free licenses that can be displayed. Creators and authors can determine, by answering a few simple questions, what license best applies to the permissions they want to grant. Use of Creative Commons is a great way of achieving balance within the current copyright system.

Scholasticus: Who owns course materials?

Does a professor own all materials (course notes, syllabus, handouts, etc) created for the courses she teaches?

Under the Copyright Act, 17 U.S.C. § 201(b), the copyright of works created by an employee in the scope of his or her employment belongs to the employer. This statement in the law is referred to as the “works for hire” doctrine, and its application to higher education has proven contentious for over 20 years.  Through institutional custom and judicial musings, a universal reliance upon a “teacher’s exception” to the works for hire doctrine has persisted. However, with the rise of distance education has come new challenges to the validity of this exception.

The “teacher’s exception” emerged in response to questions of ownership of scholarly works produced by university faculty. Most notably, the Seventh Circuit Court of Appeals in Weinstein v. University of Illinois stated in dicta that faculty ownership of their creative works enjoyed a long tradition and that only faculty had the authority to grant permission to publishers to reproduce their works, not the universities that employed them.  But what about course materials? Neither in the Copyright Act nor in any binding judicial declaration has there been proclamation of such an exception for faculty, particularly as applied to works created for instruction. Further, if the independent contractor vs. employee test specified in C.C.N.V. v. Reid were applied to a copyright action involving course materials, a court would in all likelihood determine that a faculty member was an employee. And preparation of materials used for teaching would likely be deemed as work prepared in the scope of the faculty member’s employment.

A tactic utilized by many colleges and universities in response to the ownership conundrum is adoption of general policies specifying ownership in copyrighted works produced by employees. However, federal district courts in Illinois and Rhode Island have recently ruled that such general policies are not effective for transferring copyright from the university (the presumed owner under the law) to the faculty member. Rather, formally executed and signed transfers of copyright ownership must be executed in order to effectuate a transfer. The courts in these cases have displayed little regard for general policies adopted by academic institutions.

These cases considered the ownership of written, physical materials. But what about course materials prepared for distance or online education? Due to the utilization of institutional resources, such as computer hardware and software, instructional designers, and licensed resources, universities have displayed a greater interest in retaining ownership of courses designed and developed by their faculty. As a result, a few institutions have begun taking the extra step of executing contracts with faculty to settle ownership in these materials. However, most universities have not settled the issue of who owns online course materials. At issue is whether faculty members should be able to profit from the use of institutional resources should they sell their materials to publishers or take them to another institution. And, although a critical principle in higher education, academic freedom legally cannot be asserted as a claim for ownership of online course materials.

For an excellent discussion of the “work for hire” issue, see “Instructional Materials and ‘Works Made for Hire’ at Universities” by Dr. Kenneth Crews.

Scholasticus: Focusing on faculty

In consulting with faculty at the university where I work and through conversations with colleagues at other institutions, I discovered that there are many persistent issues that arise in the intersection of copyright law and teaching. I started to write a post that addressed these several pervading questions, but the post grew too long for conventional blog fodder. So I decided I would start a new weekly post that would address one of these questions. I am calling this weekly feature “Scholasticus” – the Latin word for Scholar (I took Latin in college and rarely since law school have I had the opportunity to use it.) The format for Scholasticus posts will be a question or scenario followed by a detailed response that relies upon the black letter of the law, judicial interpretation of that law, and the common or best practices that have been adapted to follow that law. I invite comments and discussion, as well as suggestions for future topics to be addressed in this weekly feature.  Remember, these posts (as all my material) should not be regarded as legal advice – they are merely my opinion and understanding. As always, please seek the advice of your own attorney or your institution’s general counsel before proceeding.

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