Authorship, Part 1

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Copyright for Educators & Librarians

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Duke University

Copyright for Educators & Librarians

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Fear and uncertainty about copyright law often plagues educators and sometimes prevents creative teaching. This course is a professional development opportunity designed to provide a basic introduction to US copyright law and to empower teachers and librarians at all grade levels. Course participants will discover that the law is designed to help educators and librarians.

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A Framework for Thinking about Copyright

In the U.S., copyright is first and foremost a federal law passed by Congress under authority given it by the Constitution, where it says that Congress is allowed to pass laws to (among other things) promote the progress of science and the useful arts by securing for limited time to authors and inventors the exclusive right to their respective writing and discoveries. This authorization allows Congress to adopt both copyright laws which protect creative expression, and patent laws, which are very different and provide exclusive rights in inventions. In this unit we will examine what is copyright and how it happens.

Authorship, Part 1 7:51

Authorship, Part 24:20

Authorship, Part 3 5:09

Rencontrer les enseignants

Kevin Smith, M.L.S., J.D.
Former Director, Copyright and Scholarly Communication
Duke University Libraries
Lisa A. Macklin, J.D.,M.L.S.
Director, Scholarly Communications Office
Robert W. Woodruff Library, Emory University
Anne Gilliland, JD, MLS
Scholarly Communications Officer
University Libraries, The University of North Carolina at Chapel Hill

Welcome back to the next stage in our journey through copyright law.

Today we're going to be talking about authorship.

Let's begin our discussion of authorship and

copyright by remembering Joanne, the person we discussed in a previous lecture,

who has created a curriculum for training assistance animals,

that includes text, illustrations that she's drawn and a couple of videos.

To begin with, we should affirm that Joanne, as the creator of these materials,

the person who affixed them in tangible form,

is the author for the purposes of copyright law.

As we've already said, the law uses author to refer to creators of all kinds.

So Joanne is an author, even of the things that she drew or

the videos that she filmed.

The copyright law tells us that copyright automatically vests in the authors of

protectable works.

At various points in this course,

we will refer to specific provisions of the copyright law.

The copyright law is Title 17 of the United States Code.

The full text of this part of the Federal law is included in the course materials.

This portion of the law that we're going to be talking about regarding authorship

is in sections 201A and 201B.

>> So we've already talked about that copyright protects original expression,

but we need to be a little bit more specific about that.

So, if we do look at section 102 and we consider works of authorship,

we're actually given a list in copyright law of what is protected by copyright.

So, the list begins with literary works,

which encompasses all kinds of textual material.

Textual materials were the first things that copyright law protected but

over time, it ex, it has expanded.

There's books of all sorts, letters, notes, and, even, computer software.

The list goes on to musical works, dramatic works, choreography, so long as

the choreography is written down in some way, the steps are written or recorded.

>> Or, or videoed, yeah.

>> Or videotaped.

Pictures and sculptures, sound recordings,

these things are all protected under the same copyright law.

And as an author or creator you have the same set of rights in those words.

So for something to be protected by copyright,

it does have to be an original work of authorship.

And, we actually have a Supreme Court case that really was about this very point.

That court case is Feist v.

Rural Telephone.

And it set the standard for originality, which is quite frankly low.

>> Mm-hm. >> But

there is originality that is required.

So a protected work must not be copied from an earlier work, but

it also must have a spark of human creativity.

The copyright law doesn't protect what is sometimes called sweat of the brow,

the effort that may go in to compiling something.

So in the Feist case the, the issue was really a phone book.

And if you think of a phone book, while it takes a lot of effort, sweat of the brow,

to compile that phone book, the phone book isn't original.

It's in a very logical format.

Because if it wasn't in a very logical format, it wouldn't be of use to anyone.

>> It'd be useless.

>> It would very much be useless.

So, that's a good thing to kind of keep in mind when you start really thinking about

what is the level of originality that is required.

>> So unlike the phone book, we know that Joanna's text,

drawing, and videos are certainly original enough to meet that standard,

and they fall into the subject matter categories.

>> Mm-hm. >> For copyright protection.

So we're quite confident that Joanne,

as an author, owns copyright in that material.

But what does she own?

Again, the copyright law gives us a list of the exclusive rights

that an author gets in section 106.

Joanne controls the right to do basically

five things in regard to the materials that she has created.

She owns the right to make copies of that material,

the right to distribute those copies, the right to publicly perform the work.

So her video for example is something that can be publicly performed and

that right is exclusively hers.

She can grant other people permission, but it's her right.

She has the right to publicly display the works.

Her drawings are things that would be displayed, and the right to decide

whether or not to display them in public is exclusively hers.

And she has the right to prepare derivative works

based on her original material.

These are exclusive rights, meaning that only Joanne can do them or

authorize other people to do them Although her control over these activities

is subject, as we've seen, to various exceptions in the law.

One of the reasons that we can be certain that Joanne owns these rights

is because the works were created outside of the scope of her regular job.

They weren't part of what she does for her employer.

If they had been part of the job that she is employed on a full-time basis to do.

Perhaps, suppose she worked for an agency that trained assistance animals.

Then, there might be some doubt as to whether or not Joanne owned the copyright,

because those works that she was creating would be considered work made for hire.

>> That's right, Kevin.

But luckily, copyright law gives us some very specific definition and

guidelines on what actually is a work made for

hire, and those are found in Section 101 of the copyright law.

So, something is a work made for

hire if the employee creates it as part of their regular employment.

So, you mention that Joanne wasn't doing this as part of her employment.

>> That's correct.

>> But, if she worked for an agency that trained assistance animals,

her curriculum would then be directly related to what she was doing

as part of her job and would probably be considered a work made for hire.

If so, then, the law says in Section 201,

that it's actually the employer who is the author of the work.

So, that means that Joanne never had copyright to transfer.

She never had any of those exclusive rights.

Those exclusive rights were all the employer's from the very beginning.

This also changes the term of copyright as well.

So it may seem rather counterintuitive but

it is set up in such a way that the rights of a work made for

hire are always owned by the employer and were never the rights of the employee.

This is common in some industries like software industries.

>> Sure. >> Where programmers are very aware

that the code they're writing belongs to their employer and doesn't belong to them.

It's not as clear, always, in education as to whether or

not something is a work made for hire.

So let's take back go back to he example of Joanne.

In this case, her curriculum was entirely outside of the scope of her employment,

so it isn't a work made for hire and

she clearly is the author and the copyright owner of that work.

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