“Borrowing” Graphics and Text for Library Web Pages:Fair Game, Fair Play and Fair Use: “Borrowing” Graphics and Text for Library Web Pages: Fair Game, Fair Play and Fair Use Instructor: Mary Minow, J.D., A.M.L.S. LibraryLaw.com consult@librarylaw.com Office for Information Technology Policy American Library Association March 3, 2005 12:00-1:00 p.m. PST


Legal Disclaimer: Legal Disclaimer Legal information Not legal advice!


Agenda: Agenda Overview and Risks What’s in Public Domain? When is it “Fair Use” ? 4. Getting Permission Flowchart to analyze library copyright problems


Housekeeping : Housekeeping Today’s webcast: presentation: 50 minutes Q&A: final 10 minutes Submit your questions via ‘Chat’ during webcast so presenter gets them in time Fill out evaluation during Q&A Don’t wait for Q&A to submit questions Webcast Archives: http://infopeople.org/training/webcasts/archived.php


When to Use Chat: When to Use Chat Chat Area There List of Participants There Get help with technical difficulties send message to “HorizonHelp” Ask presenter questions send message to “ALL” Chat with other participants “select name from dropdown list”


Slide6: 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 U.S. Const., Art. I, § 8, Cl. 8 Owners Users Warning: Works do not need © notice Crediting author ≠ getting permission 1. Overview and Risks


Liability: Liability Cease and Desist Letters chillingeffects.org – has annotated examples Lawsuits – if you lose, you pay: © Damages, lost profits of copyright holder or © $750 - $30,000 per incident 17 U.S.C. § 504


Risk Management: Risk Management Familiarize yourself with “Fair Use” -If library shows reasonable belief it’s Fair Use, …liability can go to $0 17 U.S.C. § 504(c) Insurance – check “advertising injury” clause Take-down policy Disclaimer examples from Library of Congress memory.loc.gov/ammem/copyrit2.html www.loc.gov/homepage/legal.html#copyright


2. What’s in the Public Domain?: 2. What’s in the Public Domain? Public Domain? Ok to use


Slide10: Facts Recipes Ideas Dedicated works Government works (U.S.) Expired works Public Domain: In the FRIDGE


Slide11: Fridge Library address, hours Call numbers URLs Population statistics FACTS


Compilations of Facts: Compilations of Facts Directories Bibliographies Pathfinders List of links Cookbooks


Court CasesDatabase Producers Lose: Court Cases Database Producers Lose Telephone white pages - not original-no copyright Feist v. Rural Telephone Service 499 U.S. 340 (1991) Yellow pages - not original-no copyright BellSouth Advertising v Donnelly 999 F.2d 1436 (11th Cir. 1993) School selection criteria - no copyright Schoolhouse v. Anderson 275 F.3d 726 (8th Cir. 2002) Users


RECIPES: FRidge Mere listings of ingredients as in recipes, formulas, compounds or prescriptions = NO COPYRIGHT but.. Recipe or formulas accompanied by substantial literary expression or when there is a combination of recipes, as in a cookbook = Copyright RECIPES www.copyright.gov/fls/fl122.html


IDEAS: Not copyrightable Not copyrightable Not copyrightable FrIdge IDEAS


Stack of Books - Great Idea!: Stack of Books - Great Idea! NOT COPYRIGHTABLE


DEDICATED: FRIDGE Copyright owners may dedicate works to the public domain Use creative commons or Write dedication notice on work e.g. “This work is dedicated to the public domain” DEDICATED creativecommons.org/licenses/publicdomain/


“Dedicated” Clip Art : “Dedicated” Clip Art Who dedicated it Naive “dedications” by enthusiastic folks who don’t have copyright authority e.g. Yahright! Cool site – fun! Site closed!


Clip Art – Read Terms: Clip Art – Read Terms www.lii.org Some in public domain Some licensed to user with terms e.g. must credit, link


GOVT (U.S.) : GOVT (U.S.) FRIDGE Govt (U.S.) works PUBLIC DOMAIN State govt works only cases, codes or if dedicated copyright is source of income in California 17 U.S.C. § 105


Government Images: Government Images Image search for parking meter in “.gov” If image created by U.S. govt, it’s not copyrightable okay to use


EXPIRED: FRIDGE Law changed several times Some older works expired under earlier law See Hirtle/Gasaway copyright charts EXPIRED www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm www.unc.edu/~unclng/public-d.htm


EXPIRED: FRIDGE Life of author plus 70 years Corporate works 95 years from publication or 120 years from creation EXPIRED


Slide24: Facts Recipes Ideas Dedicated works Government works (U.S.) Expired works Finding images for your web page FRIDGE


Sect. 108 Library Exception: Sect. 108 Library Exception Important for libraries for Preservation Replacement interlibrary loan and user requests Not too useful for web pages except allows libraries to copy works in their last 20 years of copyright if not subject to “normal commercial exploitation” www.librarylaw.com/DigitizationTable.htm


3. When is it FAIR USE?: 3. When is it FAIR USE? Yes Ok to use N/A Probably Use it according to your risk tolerance


Fair Use?: Court will Use PNAM Factors Purpose Nature of work Amount Market harm Fair Use?


Fair Use: Fair Use “…the fair use of a copyrighted work...for purposes such as criticism, comment … 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…[PNAM]” 17 U.S.C. § 107


Is your use a FAIR USE? Use PNAM Factors: PNAM “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” Fair Use - Purpose Is your use a FAIR USE? Use PNAM Factors


Fair Use Purpose: Fair Use Purpose PNAM


Fair UseNature of Work: Fair Use Nature of Work PNAM “the nature of the copyrighted work;”


Fair UseNature of Work: “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” PNAM Fair Use Nature of Work


Fair UseAmount & Substantiality: Fair Use Amount & Substantiality PNAM “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”


Fair UseMarket Effect: PNAM Fair Use Market Effect


Slide35: Fair Use Summary


Fair Use analysis calls for risk tolerance assessment: Fair Use analysis calls for risk tolerance assessment Yes Ok to use N/A Probably Use it according to your risk tolerance


4. Getting Permission: 4. Getting Permission Determine copyright holder Copyright © 2005 Mary Minow Identify rights you need nonexclusive, in perpetuity Put the agreement in writing Email permission is okay Keep on file


Permission Form: I am the owner to the rights to Title of Work and I authorize a nonexclusive right to reproduction, distribution, adaptation, performance and/or display by ______Library Sample Forms listed on handout e.g. www.librarylaw.com/perm.htm Permission Form


Slide39: Copyright Clearing Center (text) www.copyright.com Corbis.com - (photographs) Art Resource (fine art)- artres.com Cartoonbank.com (New Yorker) Copyright Clearinghouses Established to collect payments From users and distribute to copyright owners


Further Resources: Further Resources Carrie Russell, Complete Copyright: An Everyday Guide for Librarians (ALA: 2004) American Library Association Copyright Issues www.ala.org/copyright


Summary: Summary Overview and Risks – can minimize Public Domain – FRIDGE - Facts, Recipes, Ideas, Dedicated works, Government (U.S.), Expired FAIR USE – PNAM -Purpose, Nature, Amount, Market Permissions – a safe bet