Copyright Toolkit

Copyright 2024 The Blerdy Librarian.

Originally published 2020.

This is my final project for INFO 281-16 course Digital Copyright taught by Professor Margret Driscoll. It’s a Copyright Toolkit that features excellent resources to help you have a better understanding of copyright for both print and digital content.

History & Fundamentals of Copyright

What is Copyright?

The basis for copyright in the United States is found in Article I, Section 8 of the U.S. Constitution, which authorizes Congress to enact laws “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 phrase “Science and useful Arts” should be read broadly; to the authors of the Constitution, “science” meant all learning and “useful arts” included all the inventions and practical devices now protected by patents.) The underlying purpose of copyright in the United States is therefore to encourage progress and the development of knowledge.

-Hirtle (pg. 2, 2009)

The U.S. Copyright Office defines copyright as:

  • A set of exclusive rights awarded to a copyright holder or owner for an original and creative work of authorship fixed in a tangible medium of expression.
  • A limited statutory monopoly that gives a copyright holder the sole right to market a work for a limited period of time.
  • Copyright also includes exemptions that permit a user of the copyright-protected work the right to exercise an exclusive right without authorization or royalty payment under certain conditions.

-U.S. Copyright Office, “Copyright Basics” – http://copyright.gov/circs/circ01.pdf

History of copyright:

“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.”

Copyright began a long time ago before the existence of the United States. The first copyright law The Statute of Anne, was published 1710. Read the entire document here.  For a long time, copyright law was very stable and then the internet came along, and things got complicated very quickly.

From a certain point of view…

There’s more than one viewpoint of the history of copyright and its implications.

Listen to this three-part lecture by “Free Culture” by Lawrence Lessig, founder of Creative Commons 1/3: https://youtu.be/xVk77VQuPAY

Read:

The Surprising History of Copyright and the Promise of a Post-Copyright World

  • This article is from the website QuestionCopyright.org where the webpages are dedicated to “questioning the idea that copyright is necessary for the promotion of creative expression”.

Notable Dates in United States Copyright

  • Created by the U.S. Copyright Office, this PDF is a brief introduction and history of Copyright in the United States (8 pages).

Some Dates in the History of Cultural Technologies

Timelines:

To read an extensive history that includes more narrative on the many court decisions read the Copyright Timeline: A History of Copyright in the United States. It gives a detailed summary as to the reasons why copyright law has changed since its inception.

Fundamentals of Copyright: What can be copyrighted and for how long?

“Since the U. S. Copyright Act of 1790, United States copyright statutes have been revised numerous times. The scope of copyright protection has been broadened to include the products of new technologies; the term of copyright has been gradually, but substantially, lengthened; and case law has evolved to account for many ways in which works can be used, licensed and infringed.”

-Copyright Clearance Center (2008). Copyright Education Series: Fundamentals

One important aspect of copyright law is that there have been numerous major changes in the length of protection since 1790.

Copyright’s Purpose According to the Constitution:

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.

-United States Constitution, Article I, Section 8

To understand the meaning of copyright law is to understand what copyright protects and for how long. Become familiar with the different sections/topics of copyright law and how to access them: https://www.copyright.gov/title17/

Look at the following sections:

The following chapters of the Hirtle book breaks down the legalese into plain English and shows how Copyright law applies to libraries:

  • Chapter 1: Subject Matter and Scope of Copyright
  • Chapter 2: Copyright Ownership and Transfer
  • Chapter 3: Duration of Copyright
  • Chapter 10: Digital Audio Recording Devices and Media
  • Chapter 11: Sound Recordings and Music Videos
  • Chapter 12: Copyright Protection and Management Systems
  • Appendix A: The Copyright Act of 1976
  • Appendix B: The Digital Millennium Copyright Act of 1998
  • Statements on the TEACH Act by MaryBeth Peters, The Registrar of Copyright:
  • before the House Subcommittee on Courts, the Internet and Intellectual Property (6/27/2001) http://www.copyright.gov/docs/regstat062701.html
  • before the Senate Committee on the Judiciary (3/13/2001) http://www.copyright.gov/docs/regstat031301.html

More additional resources for copyright fundamentals:

Stanford University Libraries Copyright & Fair Use Charts and Tools is an excellent resource for answering the difficult copyright questions.

Also view Silvia Rosenthal Tolisano’s Copyright Flowchart .

Exceptions and Fair Use

While there’s a lot that the laws cover, there are exceptions to the rules. Enter Sections 107 & 108 of Copyright Law. Section 108 is the basis of what libraries can do with copyrighted works and Section 107 covers what everyone can do with copyrighted works, aka Fair Use.

Section 107

Fair use applies both to individuals and organizations. Individuals can obtain and use parts of copyright protected materials in their work (i.e. downloading a scholarly article, copying part of a book, using an image in a presentation, etc.), and organizations such as libraries and archives can provide access to copyrighted materials (i.e., digital course reserves, digitized collections, etc.) without having to ask permission or pay fees.

According to Section 107 of the U.S. Copyright Law, there are four factors to consider when determining fair use:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work (e.g., whether it is factual or creative in nature)
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work

Listen to American academic, attorney, political activist, and academic professor Lester Lawrence Lessig III’s lecture titled Free Culture from 2002. Also read his book of the same name here.

Free Culture Lecture Part 1: https://www.youtube.com/watch?v=xVk77VQuPAY&feature=emb_logo

Free Culture Lecture Part 2: https://www.youtube.com/watch?v=-5w4msc5h5E

Free Culture Lecture Part 3: https://www.youtube.com/watch?v=ATv_xgg4_Go

Read more on exemptions and Fair Use:

More Helpful Resources:

Infographic from ARL/Association of Research Libraries: Fair Use/Fair Dealing Week 2019

Fair Use Checklists/Tools from the ALA and the University of Minnesota:

Take this Copyright Crash Course: Copyright in the library from the University of Texas: https://guides.lib.utexas.edu/copyright

Initially created fro UT’s faculty, the course is for anyone “interested in understanding and managing their copyrights”.  The course is arranged in several sections to allow users to explore certain areas of copyright law individually or as a group. They’ve also creative the following copyright related guides:

Text of the CONFU Fair Use Guidelines for Educational Multimedia

ALA Copytalk Archive of Webinars:

“CopyTalk is a series of webinars on specific copyright topics that include orphan works, mass digitization, international copyright developments, pending and recent copyright court cases, the copyright implications of new technologies, and more.”

Fair Use Court Cases:

Let’s end this section with this cute video titled: A Fair(y) Use Tale.

Section 108

IMPORTANT FOR INFORMATION PROFESSIONALS

  • States the rules on when and how libraries can make legal copies for digital preservation replacement, interlibrary loan.
  • Absolves libraries from liability when patrons use library equipment to make questionable downloads and copies.
  • Aside from the First Sale Doctrine-allows libraries to loan materials they have legally obtained-Section 108 gives libraries and archive institutes specific exceptions from the exclusive rights given to the copyright holder so libraries can provide access to information for their communities of users.

Resource I learned about from attending the FACRL 2020 Virtual Conference. One of the sessions presented was titled: Navigating Fair Use in the era of COVID: Case Studies in Course Reserves and Streaming Media

“This session will provide an overview of two service workflows at FSU Libraries related to print-based course reserves and streaming media, respectively. Pertinent legal issues and step-by-step workflows informed by these issues will be presented so that the material can be applied or adapted at other institutions.”

Here’s the resource: LawArXiv Papers: A White Paper on Controlled Digital Lending of Library Books by David Hansen & Kyle Courtney. https://osf.io/preprints/lawarxiv/7fdyr/

This paper is about how libraries can legally lend digital copies of books. It explains the legal and policy rationales for the process— “controlled digital lending”— as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending. We write this paper in support of the Position Statement on Controlled Digital Lending, a document endorsed by many libraries, librarians, and legal experts. Our goal is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest.

Public Domain and Permissions/Licensing

Copyright works are protected for a certain length of time and when that time ends the works fall out of copyright protection and enter the Public Domain. But due to the current laws-which have extended the length of protection-this is happening less frequently.

There are four common ways that works arrive in the public domain:

  • the copyright has expired
  • the copyright owner failed to follow copyright renewal rules
  • the copyright owner deliberately places it in the public domain, known as “dedication,” or
  • copyright law does not protect this type of work.

Aside from this, there’s also the misconception that everything online is in the public domain or not covered by copyright law which isn’t true.  Determining what is public domain can be complex but with these resources, it can make the process a bit easier.

Overview of the Public Domain:

The Public Domain by Stanford University Libraries gives more information about what qualifies to be in the public domain.

Cornell’s University Library created this excellent resource: Copyright Term and the Public Domain in the United States. It breaks down what’s in the public domain and what’s not and the reason why. It’s also available in PDF format.

Read Lawrence Lessig’s Free Culture: The nature and future of creativity

Copyright/Public Domain/Fair Use Determination Tools:

ALA Office of Technology Policy: Copyright Advisor Network

Various tools featured on this page include the following

Public Domain Sherpa Copyright Calculator (requires Flash)

This site gives copyright basics information, has a tool to help determine copyright status, and discusses the ten misconceptions about the public domain. There’s also a helpful copyright diagram for both US and Non-US works. The site also features detailed pages on specific types of works: Books, Maps, Photos, Sheet Music, and Sound Recordings. There’s also a page about copyfraud which occurs more often then we think!

More Resources:

Wondering what could of have been? Check out Duke Law’s What could have entered the Public Domain. Want to know if a favorite book is in the public domain? Then visit UPenn’s The Online Books Page. Check out Dear Rich®: Nolo’s Intellectual Property Blog.Also read the Privacy and Intellectual Property section from the Council on Library and Information Resources (CLIR) Report: Born digital: Guidance for donors, dealers, and archival repositories

Locate Public Domain works with the following resources:

Permissions, Licensing, & Locating Owners:

Now let’s focus on how to obtain permission to use copyrighted work. If the use of copyrighted work doesn’t meet Fair Use requirements (use Fair Use Checklist tools), permissions and/or licenses are required.

Permission(s): allows someone who is not the copyright owner to do what would otherwise be an infringement of copyright. Permission is normally given by granting the third party a license to use the work.

License(s): “a permission, usu[ally] revocable, to commit some act that would otherwise be unlawful.”2 The person who grants the license is often called the “licensor,” and the person who is granted the license the “licensee.” The license may be a formal document (what we normally think of as a license), but it can also be very informal. Licenses can apply to the entire bundle of exclusive rights included in copyright, or just to some.

-Hirtle (p.129, 2019)

There are different types of licenses(which may be combined into one license):

  • Exclusive versus nonexclusive
  • Limited versus absolute
  • Voluntary versus statutory/compulsory
  • Negotiated individually versus collectively
  • Paid versus free
  • Written versus verbal
  • Express versus implied
  • Detailed versus cursory

Locating Owners

Identify the original copyright owners: determine who initially owned copyright and what has happened to ownership since that time. If a work is published it’ll most likely have a copyright notice. The copyright notice is an important starting point, as it’s evidence of who owned the copyright at the time of publication.

Resources:

Read the following:

  • 7. Copyright Permissions and Licenses
  • 8. Locating Copyright Owners

Keep an eye on California Digital Library Challenges to Licensing from Some Publishers

Read commentary on the topic:

Use the following tools to find licensed materials:

  • Creative Commons Search: Search different providers for items that are specifically licensed under a CC license.
  • Google Advanced Image Search: At the bottom of this form is an option for “usage rights” – here you can select among the options for freely reusable material with different restrictions (analogous to the Creative Commons licenses).
  • Unsplash: Contains professional stock photographs licensed for reuse both commercially and non-commercially.
  • org: Gives more information about the license and has a helpful license generator for your work.
  • CC License Compatibility Wizard: Can assist with understanding how multiple CC licenses can work together when re-used in a single work. Directed towards those creating Open Educational Resources but anyone can use it.
  • How to give attribution with Creative Commons Licenses: Shows best practices for attributing Creative Commons licensed content.
  • Guide to Creative Commons Licenses: This chart below shows the various Creative Commons licenses and what can be done with items bearing this license.

Locating Copyright Holders: 

Orphan Works:

Multimedia Formats and Risk Management for Digitizing

Multimedia formats are materials in formats other than print. These formats include LPs, 8-track tapes, cassettes, CDs, videotapes, DVDs, BlueRay, MP3s, eBooks and more. Just like print format, there are issues surrounding multimedia formats. The two major issues are:

  1. a) legally accessing the information embedded in the format
  2. b) preserving materials (and/or the devices that will play them) in outdated formats.

When working with multimedia formats, libraries need to consider: risk management.

Read Sections 6.5 & 6.7 of Ch 6 in Hirtle’s

The portion of copyright law focusing on multimedia formats: DMCA (Digital Millennium Copyright Act). Enacted in 1998 this act puts two 1996 international treaties into U.S. law and criminalizes technology, devices or services intended to circumvent security measures to protect copyright on digital works.

This act also sets apart exceptions for digital access and manipulation. These exceptions allow for the legal access of digital information or DRM. Every three years an exception hearing takes place wherein information users can state their case for why they should be legally allowed to circumvent technology protections to access digital information.

Important Exemptions:

Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works

2018 Exemptions

2015 Exemptions 

2012 Exemptions (for a historical perspective)

Copyright/Fair Use Guidelines and Resources for Specific Digital Formats

Social Media & Technology:

Center for Media & Social Impact 

  • The Center for Media & Social Impact provides best practices for different types of digital content. Topics include visual arts, video, and media studies.

Understanding Why the Copyright Office is Looking into 3D Printing 

Visual Resources Association 

  • This site provides resources that provide guidance on academic use of images.

Music:

Read Crews (2020). 19. Music and Copyright (PDF) and visit the following sites:

Also take a closer look at one of the most famous cases about music and copyright: Metallica v. Napster in 2000. The case focused on copyright infringement, racketeering and unlawful use of digital audio interface devices.

Wikipedia: Metallica v. Napster, Inc.
Rolling Stone article with Metallica’s Kirk Hammet: ‘We’re Still Right’ About Suing Napster

Licensing films for public display:

These are for yearly subscriptions.  For individual showings, visit the production’s company page to view the contact information.

Swank Motion Pictures

Motion Picture Licensing Corporatioin Umbrella License

Twilight Zone Cinema Services

  • This site offers info about showing movies outdoors

Risk Management

When looking at the process or risk management for digitization projects mostlLibraries and businesses conduct a SWOT analysis – Strengths / Weaknesses / Opportunities / Threats –to strategize for future growth and services.

Not everything needs to be in public domain to safely digitize a collection.  Take the following steps: Try to reduce the number of risky items in the collection and then reduce the number of people who would want to sue over the collection.

Resources for Risk Management:

Read:

*Hirtle. 10. Risk Management: How to Digitize Safely and *Hirtle. 12.10 Risk Assessment (Dissertations, Thesis, and Student Papers).

Topics from Research Library Issues:

Museums Orphan Works and Risk Management (2015)

-The York Museums Trust funded a document which is an overview of orphan works and risk management.

Jisc Guides:

While they’ve been archived they’re still excellent resources regarding digitization. Refine your search first with “Legal” and then “Libraries”.

A Framework for Analyzing any Copyright Problem

  • This PDF’s reuse is authorized instructors of “Copyright for Educators and Librarians” MOOC

In the News:

Authors Guild Drops HathiTrust Case  (2015)

Georgia Tech Research Finds Copyright Confusion has ‘Chilling Effects’ in Online Creative Publishing  (2014)

Watch the following videos:

“Assessing an expert-led three-hour fair use training session”

Hangout with Kenny Crews and “Copyright for Educators & Librarians” MOOC instructors

  • From August 18th, 2014 this Google Hangout featured Kenneth Crews, the prominent copyright attorney, law professor, and trusted advisor to many in higher education, as well as the author of Copyright Law for Librarians and Educators.

Copyright Issues for Growing Digital Collections

  • From September 3rd, 2014 this ALCTS webinar discusses “experiences working with a legal services department at an academic campus. After eighteen months of getting no signed copyrights transferred to the university from authors and copyright holders, she was able to convince the legal heads that what was really needed was a form in which authors and copyright holders would give them permission to digitize their works to share freely with the world, but retain their copyright. Once they instituted their own nonexclusive, royalty-free form, they were able to get permissions to grow their digital collections by more than eight hundred articles and books. Presenter will also cover how she located copyright holders and will share the types of permissions she was successful in obtaining, including heirs, government research authors, small publishing companies, and individual authors.”
  • The webinar features a 39 min. presentation followed by a discussion.

Useful Tools:

Due Diligence Worksheet samples:

Digital Preservation resources  from NDCC (Northeast Document Conservation Center), including:

Scholarly Publishing & Creative Options

It’s time to look at copyright law from the creator’s viewpoint.

Scholarship/Authorship Rights

It’s important for authors to know what their rights are regarding their creations. Whether they’re writing a book or submitting an article to a scholarly journal, it’s important for authors to understand copyright law and how it applies to them and what they can do with their works.

Read:

How to Publish an E-Book: Resources for Authors

Let’s Get Digital: Practicalities of Self-Publishing

Know Your Copy Rights

  • Created by ACRL in 2007 this brochure-while not recently updated-it gives a basic understanding on how to assist instructors on their copy rights for courses.

Scholarly Communication Toolkit: Copyright:  

  • A LibGuide created by the ACRL that’s updated regularly

Author Rights: Using the SPARC Author Addendum … 

  • A PDF created by SPARC, The Scholarly Publishing and Academic Resources Coalition

Scholars Copyright Addendum Engine

  • Created and continually updated by Creative Commons, this engine helps authors generate a PDF form that they can attach to a journal publisher’s copyright agreement to ensure that they retain certain rights.

Sherpa Romeo

  • This online resource aggregates and analyses publisher open access policies from around the world and provides summaries of publisher copyright and open access archiving policies on a journal-by-journal basis.

Open Access & Creative Commons

Here are some creative approaches/alternatives to publishing: Open Access & Creative Commons.

Open Access Timeline

  • Open Access began with the stare of the Educational Resources Information Center-in 1964 and Medline via PubMed in 1969. Learn about the history of Open Access with this timeline as Open Access has gone through a variety of stages.

Open Access Overview :

  • Peter Suber’s extensive coverage of the OA movement.
  • Also read Peter Suber’s book about OA titled Open Access and guess what? The book’s open access!

Open Access Explained 

  • This video created by Piled Higher and Deeper (PHD Comics) explains what Open Access is through a visual medium.

Open Access in Action

  • From the Library Journal Series, Gary Price, Editor, infoDOCKET and Natalia Manola, Managing Director for OpenAIRE, continue our expert dialogue series in the Open Access movement.

Open Access Directory

  • A compendium of simple factual lists about open access (OA) to science and scholarship, maintained by the OA community at large

Read Professor Driscoll’s piece: Open Their Eyes: How the Open Access Movement has Changed the Scholarly Publishing World for Academics

Center for the Study of the Public Domain

  • An excellent resource, the Center “promotes research and scholarship on the contributions of the public domain to speech, culture, science and innovation, to promote debate about the balance needed in our intellectual property system and to translate academic research into public policy solutions.”

e-Lis Repository 

  • Established in 2003, e-LIS is an international digital repository for Library and Information Science (LIS). It has grown to include a team of volunteer editors and support for 22 languages. The development of an international LIS network has been stimulated by the extension of the Open Access concept to LIS works and facilitated by the dissemination of material within the LIS community. These are some of the reasons for the success of e-LIS.

Creative Commons

  • Much of Open Access has been focused on this licensing initiative which was founded in 2001.
  • This organization provides copyright licenses and tools that create a balance inside the traditional “all rights reserved” setting that copyright law creates.
  • Have questions? Then read the Creative Commons FAQ 
  • To view the various licenses options available, go to the About CC Licenses This page provides creators with six different license options and goes into detail about what each license does. The site also provides an “no rights reserved” tool for creators to place no restrictions on the use of their works and a Public Domain Markfor items known to be in the public domain.
  • Mentioned earlier, the site also provides a Scholars Copyright Addendum Engine will helps authors generate a PDF form that they can attach to a journal publisher’s copyright agreement to ensure that they retain certain rights. Creative Commons continues to update it.
  • They’ve also made a CC License Creation Tool, and they have an abundance of resources for Locating CC Licensed Materials. You can also search for CC images using Google Search or Bing.

Unsplash: Photos For Everyone

  • This is a new license platform which grants you an irrevocable, nonexclusive, worldwide copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash.

Copyright 2020 Jocasta Nu’s Padawan.