Southwest Educational Development Laboratory
Volume 8, Number 1, 2003
Making Copyright Law Work for You: A Word from the Director
→ To Promote the Progress of Science and Useful Arts
Useful Terms Related to Copyright
NIDRR Grantee Questions about Copyright
NIDRR Grantee and Staff Recognition
"The Congress shall have power . . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The meaning and importance of copyright differs if you are the author or creator of a piece, or if you want to make use of someone else's work. The protections afforded by copyright law have also changed over time. The initial purpose of copyright in the United States was to encourage creativity by ensuring authors the right to control their intellectual property for a limited period of time. In recent years its focus is more on providing economic protection for copyright owners, as the process of copying a work has become easier in the electronic age. An overview of U.S. Copyright issues is provided in this issue of The Research Exchange, with specific focus on areas of potential interest to NIDRR-funded researchers. Many Web-based resources are also offered to facilitate further and in depth follow up.
NCDDR staff contacted Principal Investigators and other staff of selected NIDRR grants to identify any specific questions about copyright issues related to the results from their NIDDR-funded research. These questions from NIDRR grantees were submitted to Virginia Harper, a renowned intellectual property expert with The University of Texas System. Her responses are presented in this issue.
The U.S. Copyright Act of 1790 provided for a term of fourteen years, and if the author was still living, renewal for an additional fourteen years. It was modeled on Britain's Statute of Anne, passed by Parliament in 1710 and entitled: An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned (Masciola, 2002; Tallmo, in press).
http://www.copyrighthistory.com/anne.html
Over the past two hundred plus years, the copyright term has been expanded. The term now covers the author's lifetime plus 70 years (Sonny Bono Copyright Term Extension Act of 1988, U.S. Copyright Office, 1988b). Many people feel this lengthy term goes against the initial intent of providing limited times to the author's rights in order to encourage further creativity by bringing works into the public domain (Berkman Center for Internet & Society, 1999).
Copyright law in the U.S. has been modified by Congress a number of times in response to international and domestic situations. The Berne Convention Implementation Act of 1988 amended U.S. Copyright Law to reflect the international Berne Convention for the Protection of Literary and Artistic Works (U.S. Copyright Office, 1988a). The Berne Convention was held in 1886 and has also been amended over the years. The United States first became a signatory in 1988. One change that resulted was elimination of the requirement that a work carry the copyright symbol [ © ] in order to be protected (Lutzker, 1999). A work is copyrighted to the author once it has been developed in a tangible format. However, if an author does not make an effort to identify the work as his or hers, a problem can develop if others make use of the work. With the evolution of multimedia, the Internet and World Wide Web, the issue has become more complicated.
Many changes in copyright law in the past five years have responded to new technologies and new media. The Digital Millennium Copyright Act of 1998 (DMCA) brought the U.S. copyright law in line with the World Intellectual Property Organization (WIPO) Copyright Treaty adopted in 1996 (WIPO, 1996). The DMCA addresses electronic technologies and focuses on the prevention of unauthorized use of digital works. The "anti-circumvention clause" prohibits tampering with or making available technologies to circumvent current copy protection and identification. There are some exclusions for law enforcement, research, and others, but nothing in the law allows circumvention for purposes of accessibility.
Online service providers (OSPs) that deliver content (information) via servers in their network may be liable if their users/subscribers post copyrighted materials without permission. The DMCA provides OSPs with "safe harbor" from liability for users who may violate copyright by what they present on their Web sites, as long as they remove infringing material when they are advised by the copyright owner (ARL, 2003). This has led to a "chilling effect" where many OSPs take materials down, even when it has not been proven that the material is infringing. A coalition of law school clinics has developed the "Chilling Effects Clearinghouse" to document these activities (see sidebar.) The Online Copyright Resources section provides links to descriptions of the provisions of the DMCA and interpretations of its impact.
In 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act was passed (Masciola, 2002). The TEACH Act permits the use of digital transmissions for educational purposes, particularly for distance education, when the content is similar to that in an onsite educational class and when precautions are taken to maintain copyright protection outside of the instructional setting. The Online Copyright Resources section provides more information about the TEACH Act.
Two bills proposed in January 2003 may result in
additional changes to the U.S. Copyright Law. Congressman Rick Boucher
(Democrat of Virginia) and three other Representatives introduced H.R. 107,
the Digital Media Consumers' Rights Act of 2003. The bill proposes
"to amend the Federal Trade Commission Act to provide that the advertising
or sale of a mislabeled copy-protected music disc is an unfair method of competition
and an unfair and deceptive act or practice, and for other purposes."
It was referred to the Committee on Energy and Commerce and to the Committee
on the Judiciary.
http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.107:IH
House Representative Thomas E. Petri (Republican
of Wisconsin) and 24 other Congressman introduced H.R. 490, the Instructional
Materials Accessibility Act of 2003. "The purpose of this Act is to improve
access to printed instructional materials used by blind persons, or other
persons with print disabilities, in elementary schools and secondary schools
through the creation of a coordinated and efficient system for acquisition
and distribution of instructional materials in the form of electronic files
suitable for conversion into a variety of specialized formats." The Bill
has been referred to the Committee on Education and the Workforce.
http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.490:IH
The Internet was initially developed by researchers for the purpose of facilitating the sharing of ideas and information (NCDDR, 1997). Over time, this purpose has been commercialized and a number of legal issues, including those related to copyright, have emerged and gained in importance. Many publishers require authors to sign over the copyrights to their work when a paper is accepted for a scholarly journal. Much of the time authors are not allowed to make copies of their articles available to the public online for free. Some researchers are working to open avenues for publishing and discussion that will expand opportunities for the free exchange of ideas, developing what is known as open access. See Online Resources for Open Access to Online Scholarship.
For administrators of NIDRR grants, the Education Department General Administrative Regulations (EDGAR) has little to say about copyrights and patents. See sidebar for details on the EDGAR provisions, with cross references to the United States Code (U.S.C.) and the Code of Federal Regulations (CFR).
Fair use is a provision of the Copyright Law that allows some use of a copyrighted work without the permission of the copyright owner. Such use is permitted for educational and research purposes, although specific instances are not defined. See the sidebar What is Fair Use? for references to the Copyright Law and a number of online resources. A Conference on Fair Use (CONFU) was held from 1994 to 1998 with the goal of developing guidelines specifically for educators and libraries. Participants included representatives of over 100 groups representing both authors and copyright holders, as well as interested users. After four years, no final guidelines were agreed upon as a result of CONFU, which serves to highlight the difficulty of this issue.
Another concern of researchers is what to do if others use their work in ways the author or authors believe infringes on their copyright. Universities and other large institutions often have an intellectual property or legal office that can help. Another article in this issue, NIDRR Grantee Questions about Copyright, provides answers from a copyright law expert to questions that NCDDR staff received from NIDRR grantees.
SIDEBAR:
The Chilling Effects Clearinghouse http://www.chillingeffects.org/ was launched in February 2002 by Harvard Law School's Berkman Center for Internet & Society and partner law clinics in response to mounting threats to online activity. "Chilling Effects" refers to the reduction in lawful online speech as a result of threats of legal action.
In an interview with the NCDDR, Clearinghouse founder Wendy Seltzer remarked that although the Internet is a wonderful avenue for free speech, publishing on the Internet also makes it easier for those who may be motivated to find and attempt to silence certain speech (W. Seltzer, personal communication, January 7, 2003). Individuals may allow their free speech to be squelched if they are not able to defend themselves against a large company.
In the copyright arena, the Digital Millennium Copyright Act's (DMCA) notice-and-takedown provisions are of particular concern. The DMCA's safe harbor encourages online service providers (OSPs) to offer notice-and-takedown procedures by which a copyright owner can inform the service provider of claims of copyright infringement, with sufficient background information and identification of specific infringing pages. If the OSP wants to take advantage of a safe harbor from potential liability for contributory infringement, it will generally remove the material and notify the poster of this claim. Many posters do not challenge these takedowns, whether or not there is an underlying infringement, so even non-infringing material may be removed from the Web (W. Seltzer, personal communication, March 4, 2003). The Samuelson Law, Technology and Public Policy Clinic at Boalt Hall (the University of California at Berkeley School of Law) maintains the Chilling Effects topic discussing this area. See http://www.chillingeffects.org/dmca512/
The Clearinghouse provides background and legal information about topics such as Anonymous Speech, Copyright, Defamation, Domain Names, Fan Fiction, and Trademarks. The Web site also links to many online resources in these topics. At the project's core is a database of Cease and Desist notices sent to Internet users and OSPs, linked to explanations of the legal claims the notices assert. The database (with nearly 300 entries as of February 2003) provides examples of correspondence ranging from the "Vampire Bible" to Barney parodies.
The Chilling Effects Clearinghouse is a collaborative effort among the Electronic Frontier Foundation (EFF) and law school clinics at Harvard, Berkeley, Stanford University, the University of San Francisco, the University of Maine, and George Washington University. For more information, visit http://www.chillingeffects.org/about
Copyright
http://www.chillingeffects.org/copyright/
Frequently Asked Questions about Copyright
http://www.chillingeffects.org/copyright/faq.cgi
SIDEBAR:
Following are the provisions for publications and copyrights, inventions and patents, covered in EDGAR (version 3/5/2001)
Sec. 75.620 General conditions on publication.
(a) Content of materials. Subject to any specific requirements that apply to its grant, a grantee may decide the format and content of project materials that it publishes or arranges to have published.
(b) Required statement. The grantee shall ensure that any publication that contains project materials also contains the following statements:
The contents of this (insert type of publication; e.g., book, report, film) were developed under a grant from the Department of Education. However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government.
(Authority: 20 U.S.C. 1221e-3 and 3474)
[45 FR 22497, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980, as amended at 45 FR 86297, Dec. 30, 1980]
Sec. 75.621 Copyright policy for grantees.
A grantee may copyright project materials in accordance with 34 CFR part 74 or 80, as appropriate.
(Authority: 20 U.S.C. 1221e-3 and 3474)
Cross reference: See 34 CFR 74.22 Payment; 34 CFR 74.24 Program income; and 34 CFR 74.36 Intangible property; 34 CFR 80.25 Program income; and 34 CFR 80.34 Copyrights.
[45 FR 22497, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980, as amended at 53 FR 19118, May 26, 1988; 57 FR 30339, July 8, 1992]
Sec. 75.622 Definition of "project materials."
As used in Secs. 75.620-75.621, "project materials" means a copyrightable work developed with funds from a grant of the Department.
(Authority: 20 U.S.C. 1221e-3 and 3474)
[57 FR 30339, July 8, 1992]
Cross reference: See 34 CFR 74.25, Program income and 34 CFR 80.25, Program income.
Sec. 75.626 Show Federal support; give papers to vest title.
Any patent application filed by a grantee for an invention made under a grant must include the following statement in the first paragraph:
The invention described in this application was made under a grant from the Department of Education.
(Authority: 20 U.S.C. 1221e-3 and 3474)
[45 FR 22497, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980, as amended at 45 FR 86297, Dec. 30, 1980; 57 FR 30339, July 8, 1992]
Source: http://www.ed.gov/offices/OCFO/grants/edgar/part75e.html
SIDEBAR:
Fair use is a provision in the Copyright Law that allows some materials to be copied and used for specific purposes without infringing on the original author's copyright. Educators and researchers have the right to use some copyrighted materials. Instances of fair use are not clearly defined in the Copyright Law (see below). As authors have created and posted works on the World Wide Web, copyright issues, including the fair use concepts, have become more confusing.
Copyright Law of the United States of America and Related Laws
Contained in Title 17 of the United States Code
Circular 92, Chapter 1: Subject Matter and Scope of Copyright
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Source: http://www.copyright.gov/title17/92chap1.html#107
http://fairuse.stanford.edu/
Stanford University Libraries: Copyright and Fair Use
http://www.utsystem.edu/ogc/IntellectualProperty/copypol2.htm
UT System Copyright Crash Course: Fair Use of Copyrighted Material
http://www.utsystem.edu/ogc/intellectualproperty/confu.htm
UT System Copyright Crash Course: The Conference on Fair Use (CONFU)
http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.htm
Final Report to the Commissioner on the Conclusion of the Conference on Fair Use (November, 1998)
http://www.arl.org/info/frn/copy/confu.html
CONFU Conference on Fair Use
Association of Research Libraries, Washington, DC
http://www.arl.org/info/frn/copy/fairuse.html
Fair Use in the Electronic Age
This document is a statement on the fair use of copyrighted works by individuals, libraries, and educational institutions. It was developed by representatives of the American Association of Law Libraries, American Library Association, Association of Academic Health Sciences Library Directors, Association of Research Libraries, Medical Library Association, and Special Libraries Association.
http://www.techlearning.com/db_area/archives/TL/2002/10/copyright.html
The Educator's Guide to Copyright and Fair Use (10/15/02). The article discusses fair use and its purpose in copyright law; introduces online quiz and guidelines chart.
http://www.techlearning.com/db_area/archives/TL/2002/10/copyright_quiz.html
The Copyright Quiz presents 20 questions that reflect real classroom situations.
http://www.techlearning.com/db_area/archives/TL/2002/10/copyright_chart.pdf
Copyright and Fair Use Guidelines for Teachers. This chart describes the media, specifics, what teachers can do, and "fine print" related to fair use.
Return to Promote the Progress Article
OR
Return to NIDRR Grantee Questions Article
Association of Research Libraries (ARL). (2003). Digital Millennium Copyright Act: Status and analysis. http://www.arl.org/info/frn/copy/dmca.html
Berkman Center for Internet & Society. (1999). Constitutional framers' intent. http://eon.law.harvard.edu/eldredvreno/cyber/framers.html
Lutzker, A.P. (1999). Memorandum, August 19, 1999, for the Association of Research Libraries, Washington, DC. http://www.arl.org/info/frn/copy/notice.html
Masciola, A. (2002.) TIMELINE: A history of copyright in the United States, for the Association of Research Libraries, Washington, DC. http://www.arl.org/info/frn/copy/timeline.html
NCDDR. (1997). Accessible Information on the World Wide Web. The Research Exchange 2(1). http://www.ncddr.org/products/researchexchange/v02n01/accesswww.html
Tallmo, K-E. (in press). The history of copyright: A critical overview with source texts in five languages. http://www.copyrighthistory.com/anne.html
U.S. Copyright Office. (1988a.) Appendix II to the Copyright Law of the United States of America. Berne Convention Implementation Act of 1988. http://www.copyright.gov/title17/92appii.html
U.S. Copyright Office.
(1988b). Sonny Bono Copyright Term Extension Act of 1998. http://www.copyright.gov/legislation/s505.pdf
U.S. Copyright Office. (1996). World Intellectual Property Organization Diplomatic Conference: Preparatory and final documents. http://www.copyright.gov/wipo/
U.S. Constitution. (1787). Article 1, Section 8, Clause 8. http://www.law.cornell.edu/constitution/constitution.articlei.html#section8
WIPO. (1996). World Intellectual Property Organization Diplomatic Conference on Certain Copyright and Neighboring Rights Questions. Geneva, December 2 to 20, 1996. http://www.wipo.org/eng/diplconf/distrib/94dc.htm
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