Copyright: “It Depends”

The Kraemer Copyright Conference at UCCS was June 6th and 7th, with attendees not just from around the state, but quite a few from other states, and even other countries. The modern iteration (1976) of American Copyright law was written to create a balance between the rights of the public (the dissemination of knowledge) and the rights of the creator of intellectual property. The important thing, stressed repeatedly throughout the conference, is not to see all use of copyrighted materials as “stealing”. Reproductions are allowed by law under a number of circumstances in order to promote the progress of the useful arts — that is, knowledge and creative works. Section 108 of US Copyright Law pertains to exemptions pertinent to libraries, so long as the reproduction is for the purpose of preservation, private study, or Interlibrary Loan (ILL), and so long as the institution is open to researchers and/or the public. Section 107 (Fair Use) is probably the most common “workaround”. It is important to note that while there are “best practices” out there, they are NOT hard-and-fast rules.Using them may or may not make your use of materials legally acceptable. Define your own terms and make sure you have your own justifications in case you ever have to explain your choices/actions.

The biggest takeaway regarding Educational/Academic Exemptions to copyright law was “it depends”. Frustrating, I know. But the grey areas where words like “premises of the library” or “percentage of the work” are undefined that give us wiggle-room. There are 4 key elements to consider regarding Fair Use. However, a balance of all four must be taken into account; it isn’t enough to say, “My new work is not-for-profit, therefore I’m exempt from copyright infringement.”

  1. Purpose and character of the new work: is it Transformative? Is it for non-profit or educational purposes? If the new work adds value or re-purposes it for a new audience (or if it serves an entirely new purpose), it is not necessarily considered a violation of copyright law. The same is true of dissemination of work for educational purposes. If you’re making a profit, it’s more likely to be infringement.
  2. The nature of the work: is it factual/news-based, or fictional? Is it published or unpublished? If the copyrighted material contains facts which can be corroborated elsewhere, reproduction is not as likely to be considered a violation as the reproduction of a fictional/entirely creative work. Unpublished works are harder to get exemptions, because the law favors the creator as having the right to first publication.
  3. The “quantity & quality” of the original work being reproduced: Is the reproduction only a small percentage (exact number unspecified for wiggle-room) of the overall work, like a single chapter from a massive textbook? Is the portion being reproduced the “heart” of the original piece, or more peripheral?
  4. The market effect or impact on the original work: is your new work likely to be mistaken for the original, or could it replace the purchase of the original in a way that could be detrimental to the rights-holder? This is where things can get hairy for academics. Scanning of book chapters online is perfectly permissible under Fair Use… so long as it’s not the entire book (or the heart of the work) being reproduced.

Another fun tidbit of information is that animals cannot hold copyright, if you were wondering. The man who facilitated “monkey selfies” has no rights to the photographs! The law has decided that the person who takes the picture (regardless of who owns the camera) has the copyrights. This is because they have the ability to change the lighting and posing, thus making the result unique from someone else’s shot of the same subject.

We all hold more copyrights to more materials than we could ever imagine.  Every picture we’ve snapped — with old-fashioned film cameras, with our phones, or even with someone else’s gadget — we hold copyright to those pictures. Every email we’ve ever written, or blog post, or Facebook message… we hold the copyright. However, re-Tweeting someone’s Tweet does not make it your property! Confused yet? Just remember the golden rule… “It depends” on context!

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