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(Dr. James Tidwell) When a copyright expires
nowadays, it depends on when it was originally copyrighted
and so it can go anywhere from the
life of the author plus 70 years to who knows,
I don't remember all of the different.
(male speaker). So I take it the Mickey Mouse
example, at the end of 95 years,
isn't extendable?
I mean like with the 14 years you can't reapply?
(Dr. Tidwell). No, no, there's no
re-apply, yeah, you're right.
That all changed.
That was the case until 1976, there was always the one term
and then you could get it for another term.
So I am assuming, I can't remember anything, I don't
remember the exact details of the 1999 law, but anything that
was within some sort of copyrighted term in 1999 was
extended X number of years, I don't remember how many
years that was and you probably don't care anyway.
The standard now is the life of the author plus 70, or 95 years.
(female speaker). Now if somebody is
on staff at Disney, and creates Finding
Nemo, that comes under a copyright from Disney
so that's only 95 years.
(Dr. Tidwell). Yes, right, right.
(female speaker). But Walt was a special guy,
do you expect in another 20 years
we'll be going through an extension?
(Dr. Tidwell). Probably, and I think
I noted there, the constitution says
that Congress has the power to secure for limited times.
And this last year, the Supreme Court
upheld Congress's power to extend it.
They said we don't know what limited means, but we haven't
reached it yet, basically.
So what limited means nobody knows, but at least the supreme
court ruled, I think it was a five to four, or maybe six to
three decision that that was still okay, the limited time.
The argument being, things at some point need to be in the
public domain, and so the argument is that the whole idea
was you give the creator the economic benefit to begin with,
but at some point the public should be able to have
access for free to these things.
But with political lobbying and so forth that tends to be the
time before going to public domain gets longer and longer.
And here again the penalty like I said for copyright as I said,
you can read through those for yourselves.
There are the actual damages, statutory damages
if you've filed a copyright within 90 days.
And then there are criminal penalties in fact, the law was
changed in 1998 for willful infringements
even if there is no profit motive.
Prior to that, there had to be a profit motive before criminal
penalties could be imposed but that's not the case anymore, it
depends on how about, it says, if the value, the total retail
value, of the copyright is at least $1000 but less than
$2.500, you can be imprisoned for one
year and fined up to $100,000.
The criminal penalties have been really kicked up several notches
as [unclear audio] would say, that can be of some concern.
You notice that from our standpoint, 6b there says
federal damage may be remitted to not less than $200 if the
infringer had reasonable grounds to believe the use
was fair and he or she is an employee of an agent of
a non-profit educational institution or library.
So they give us a break there in case we get sued and we really
in good faith thought it was fair use or whatever.
Now speaking of fair use, obviously fair use is sort of
the heart of the whole debate, particularly for educators.
You can see section 107 says fair use of copyrighted work for
purposes such as criticism, comment, news reporting,
teaching, including multiple copies for class use,
scholarship, or research, is not an infringement of copyright.
So if you deal with criticism, comment, news reporting,
teaching, scholarship, or research, I mean the two groups
that do that the most are journalists and educators.
So obviously journalists and educators can probably benefit
from fair use more than anybody else because they're the ones
that do those activities, engage in those activities.
Now in determining fair use, there are the statute says,
there are four factors a court, in other words, fair use is an
offense to a copyright infringement lawsuit.
If you get sued for copyright infringement,
you would say, well it was fair use.
Well then you would have to prove then
the defense is fair use.
The factors that a court looks at to determine whether or not
the user is fair: the purpose and character of the use,
including whether the use is of a commercial nature or is a
non-profit educational purposes.
The nature of the copyrighted work, amount or substantiality
of the portion used, the effect of the use on a particular
market for the value of the copyrighted work.
Okay, now let's look at some examples there, or as a matter
of fact, it may be good to, well let me do it this way.
The purpose and character of the use, that's fairly simply.
Is the use, if the use is for non-profit purposes then, you're
probably going to get a plus when it comes to that factor, it
doesn't mean you're going to win, at least factor
one weighs in your favor.
If it's commercial use, you're probably going to be dead in the
water for factor one.
It doesn't mean you're going to win or lose, it's just one
factor, you have to look at all four.
But that's obviously very important.
Also uses that are, let's say transformative, you take some
scholarship that someone did, and you then expand on it and
add new meaning to the original work, the courts would tend to
say that the nature of the use, you're using it to create new
things, and therefore that favors fair use.
Okay, so you take, there was a good example,
there was a case several years ago where
somebody wrote a little grammar book okay?
And had some examples of grammar book, someone else then wrote a
bigger grammar book and used some of the examples from the
original book and the original author sued the second author.
And the court mainly said, well, they used some of these, but
they really expanded, they used just part of these and they
created this whole new book about language and so forth,
and so it just really was to transform
the original into something new.
And therefore the nature of the use was positive, not negative.
(male speaker). So that's not considered
a derivative work then?
(Dr. Tidwell). No, no, that would not be.
(male speaker). A derivative work would
then be more of just changing the fixed media?
(Dr. Tidwell). Yeah, that's a good point,
otherwise, if you took the original book and
made it into a CD, then that would be a
derivative work, that's a good point.
But as long as you just take, and of course all the factors
apply there obviously.
If the second author had taken the entire book and used it,
then that would have weighed very negatively
for number three there obviously.
But so I mean the courts do, if you use something, if you take
four or five minutes of a film into your video and you use it
to criticize, to make comments about it, that once again is
sort of the nature of the use, favors fair use because you're
using it to create new material.
The nature of the work itself, so you have the purpose of the
use and then the nature of the work.
Now there the more creative the work is, the less likely
factor two is going to weigh in your favor.
The more historical, the more factual it is the more likely it
is going to weigh in your favor.
So in other words, there's only, and I would tell with journals,
a newspaper writes a story that says you know, yesterday's 9/11
commission hearings, now that's all factual.
So the only thing the copyright of the Chicago Tribune protects
is an absolute word for word ripoff of that story.
Somebody else could take that story and rewrite it and there
wouldn't be any copyright violation
because these are facts.
There was nothing creative about this, all they did was reporting
actual things, things that actually happened okay?
But the more creative it is, you know fiction is going to be
favored more, in other words it is less likely that you can
argue fair use, when you use fictional piece, when you copy
fictional piece than if you use non-fiction.
So the more creative it is, the less likely factor two is going
to weigh in favor of fair use.
Or like a workbook, a consumable workbook.
You have 25 exercises, gee, I don't want my students to buy
this, so I'll just copy the 25 exercises.
Well, the nature of the work itself is that every student has
to have this book, there's no used book market for it, there
shouldn't be, and therefore that's why in our textbook
rental system we don't allow workbooks, we're not supposed to
allow workbooks in textbook rental because
they're supposed to be consumable.
It's not a system where you can sort of pass them
along from one class to another.