A Brief Overview of Your Rights

There have been enumerable forum posts on copyright and DMCA of late, and it seems that there is a whole lot of confusion about what constitutes a copyrighted material..

The guide below addresses the use of copyrighted material and what is Fair Use as set out in the laws of the United States…in Canada it is much more strict and I will give a brief over view of those laws at the end..

What is a copyright?

  • A copyright is the set of exclusive legal rights authors have over their works for a limited period of time. These rights include copying the works (including parts of the works), making derivative works, distributing the works, and performing the works (this means showing a movie or playing an audio recording, as well as performing a dramatic work). Currently, the author’s rights begin when a work is created. A work does not have to bear a copyright notice or be registered to be copyrighted.

Why do we have copyright?

  • The Constitution of the United States says that its purpose is to promote science and the useful arts. The government believed that those who create an original expression in any medium need protection for their work so they can receive appropriate compensation for their intellectual effort.

What is a work in the public domain?

  • A work in the public domain can be copied freely by anyone. Such works include those of the U.S. Government and works for which the copyright has expired.
    Generally, for works created after 1978, the copyright lasts for 70 years beyond the life of the author. Works created before but not published before 1978 have special rules. For works created and first published between 1950 and 1978 the copyright lasts for 95 years. For works created and first published before 1950, the copyright lasts for 28 years but could have been renewed for another 67 years
    .

What is fair use?

  • Fair use provisions of the copyright law allow for limited copying or distribution of published works without the author’s permission in some cases. Examples of fair use of copyrighted materials include quotation of excerpts in a review or critique, or copying of a small part of a work by a teacher or student to illustrate a lesson.

How can I tell if my copying is allowed by fair use provisions of the Law?

  • There are no explicit, predefined, legal specifications of how much and when one can copy, but there are guidelines for fair use. Each case of copying must be evaluated according to four factors.

The purpose and nature of the use.

  • If the copy is used for teaching at a non-profit institution, distributed without charge, and made by a teacher or students acting individually, then the copy is more likely to be considered as fair use. In addition, an interpretation of fair use is more likely if the copy was made spontaneously, for temporary use, not as part of an “anthology” and not as an institutional requirement or suggestion.

The nature of the copyrighted work.

  • For example, an article from a newspaper would be considered differently from a workbook made for instruction. With multimedia material there are different standards and permissions for different media: a digitized photo from a National Geographic, a video clip from Jaws, and an audio selection from Peter Gabriel’s CD would be treated differently…the selections are not treated as a equivalent chunks of digital data.

The nature and substantiality of the material used.

  • In general, when other criteria are met, the copying of extracts that are “not substantial in length” when compared to the whole of which they are part may be considered fair use.

The effect of use on the potential market for or value of the work.

  • In general, a work that supplants the normal market is considered an infringement, but a work does not have to have an effect on the market to be an infringement.

How can a work reference the copyright owner of digital photographs, video, or sounds?

Include the copyright symbol and the name of the copyright owner directly on/under/around the digital material. It is virtually impossible to ensure that digital information located at any distance from the image/video would be seen by a user if the copyright notice is not directly attached to the material.

If the material is only used once for a class or a project, does the copyright owner need to be acknowledged?

  • Images, graphics and video should be credited to their owners/sources just as written material. Also, if you should change your mind and want to use material for commercial purposes, then it is important that you would know where and when you found the material and who is the copyright owner.

Can I download information to my computer?

  • Digital resources are licensed for the non-profit educational use. Use of these resources is governed by copyright law and individual license agreements. Systematic downloading, distributing, or retaining substantial portions of information is prohibited.

The above information applies to U.S law…in Canada it is much more strict

  • The Canadian concept of fair use (it is called fair dealing here), is similar to that in the UK and Australia.
    The fair dealing clauses of the Canadian Copyright Act allow users to engage in certain activities relating only to research, private study, criticism, review, or news reporting. With respect to criticism, review, and news reporting, the user must mention the source of the material, along with the name of the author, performer, maker, or broadcaster for the dealing to be fair..
    In Canada, fair dealing as defined by the Copyright Act is more restrictive than the fair use provisions in the United States, particularly in regards to education and teaching, which is not considered an example of fair dealing here
    .

For example, in the United States, showing films or videos in a classroom without special permission or performance rights is permitted. In Canada, public performance rights must be acquired to show a video or film in a classroom.

The United States also allows making copies of works for distribution in class. In Canada, it is forbidden to do so without special agreement or payment to the copyright owners, such as via the Copibec licence.
Sources…Stanford University..Canadian Govt, and Wikipedia…

  • For other countries please check wikipedia which has a list of various countries and their interpretations of Fair Use…

Examples….

  • The creator of the photograph, (include painters here too) i.e. the photographer, usually holds the copyright to the photo and, unless they’ve expressly given permission for its use, making a painting based on a photo would infringe the photographer’s copyright. In terms of US copyright law: “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.” You may be able to obtain permission to use a photo for a derivative work from the photographer, or if you’re using a photo library buy the right to use it..
    Even if you’re not going to make commercial use of a photo, just by creating a painting to hang in your home, you’re still technically infringing copyright, and you need to be aware of the fact. (Ignorance is not bliss.) so take your own photos..
    Photos being labeled “royalty-free” in photo libraries does not mean “copyright free”. Royalty free means that you can buy the right from the copyright holder to use the photo wherever you want, whenever you want, how many times you want, rather than purchasing the right to use it once for a specific project and then paying an additional fee if you used it for something else
  • It’s a long-standing tradition to paint from the Old Masters, but you should not try to pass these off as your own paintings. Similarly, ‘how-to’ books are there to help you develop your own skills, not to enable you to pass off the finished picture as your own original creation (after all, you’ve copied someone else’s composition and techniques). Make a note on the back of these paintings to remind yourself of the origins / influences. (Write on the actual canvas, not the stretching frame, so it never gets separated.)
  • You cannot make prints from an original painting you bought, unless you’ve bought the copyright of the painting along with the physical painting…the copyright remains the artist’s and they retain the exclusive right to make prints from it. In the same way buying a CD or book doesn’t entitle you to make copies of it.
  • Make the ownership of copyright clear to anyone who buys a painting from you up front by including it in the sales documentation.
    Take a leaf out of the book of artist Karen McConnell who says: "I sell most all of my original paintings with a ‘Statement of Value’ which includes (1) date of sale (2) price paid (3) whether it was purchased framed or unframed and (4) notice that copyright for the work remains with the artist. At the bottom of the form is a place for dated signatures from both myself and the purchaser. I keep a copy, they keep a copy
    ".
  • Unless you expressly sign over copyright to the person who’s commissioned a painting or it was done as work for hire, copyright remains yours. Owning the actual painting is not the same as owning copyright and reproduction rights in the painting.
  • Copying someone else’s work without permission puts you in violation of their copyright, whether they have a copyright notice up or not. It is much better to ask permission. It’s also safer for you..Source:Copyright Faq…About.com

Lastly it’s a myth that if the item is not up for sale it’s o.k…it’s not o.k….it’s an infringement…
You don’t have permission, but you add the person’s name, that’s still an infringement…you must get permission…
Even if you take the image down when the person objected, it’s still an infringement…taking it down does not override the copyright law…it is not retroactive, and you can still be sued..
“I can’t find the owner” does not hold up in court…silence does not equal consent

Hope you’ve found this information helpful and that it has clarified some of these hitherto clouded issues.. Janis

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