UPDATE 10-2010 – In July of this year, the DMCA came out with a new set of rules. Some of the information below is no longer accurate. Please see our post DMCA Rules, or Kevin Smith’s post Reading the Fine Print for more details about those rules.
Issues of Intellectual Property and Copyright occur regularly at the MPS, so recently we asked Kevin Smith, Duke’s Scholarly Communication Officer and IP lawyer, to come and talk a little bit about the topic and answer some student questions. This is by no means an exhaustive post on the legal ins and outs of copyright – in fact, Kevin made it clear to us that this part of the law, and specifically Fair Use, is intentionally nebulous and vague in order to leave leeway for interpretation.
Five Questions for any Copyright Issue
- Is the work protected by a copyright? – Copyright grants exclusive rights to the owner of the content and in most cases is automatically granted as soon as anything is created in fixed and tangible form. This includes things like films, music, fonts, and web content (even this post). Some things that are not covered by copyright, and are therefore part of the public domain include ideas, facts, or short phrases, works published before 1923, or works created by the federal government.
- Is the work covered by a license – Rights holders may grant licenses for certain uses like software licenses (ie. Adobe, Final Cut Pro), database licenses, or font licenses. Creative Commons is a license used by rights holders to encourage use of the material, however subject to its own set of conditions based on the type of license issued.
- Is there a specific provision of the law that supports your proposed use? – Certain laws provide exceptions to copyright protection, like Performance exceptions. In the academic arena, this applies to face-to-face teaching and “transmissions” as allowed under the TEACH Act, which permit certain uses on protected systems like Blackboard (however these also come with their own set of constraints including amounts, copy protection/conversion, and other requirements). This provision allows a professor to show a movie in class or put an excerpt from a clip into Blackboard for home viewing.
- Do I need permission? From whom? – If you have permission from the rights holder, you are prevented from copyright infringement. In many cases however, it is not exactly easy or straight-forward to get permission or even figure out who needs to be asked. In local cases however, like recording an event, it is best to get permission from the performer.
- Does Fair Use justify my proposed use? – Fair Use is the part of the law that is particularly vague and in fact there is no barometer for determining whether an application of Fair Use is legal other than in a court room. There are four main Fair Use factors that must be “balanced” in order to demonstrate that the use is indeed fair. Those four factors:
- Purpose of use – For most university-related purposes, the academic answer usually gets the benefit of the doubt.
- Nature and character of the original - If the content itself is something factual, news-related, or already published, it favors fair use, while works that are creative interpretations or unpublished do not favor fair use.
- Amount Used – Usually less is better for making a fair use argument.
- Effect of use on markets for the original – In the case of ripping a DVD, are you doing this so students don’t have to buy it? That use would probably be a point against fair use. On the other hand, if you are producing a new album based on a previous album where you have made a transformative change and buying your new album is not a replacement for the original, you probably have a good argument for fair use.
We have a problem
In the MPS, we have a recurring use case where patrons come into the lab wishing to rip content from a DVD. In many, if not most, of these cases, a good argument for fair use could be made for circumventing the copyright. However there is still one big problem, CSS, or Content Scramble Systems. CSS is a Digital Rights Management (DRM) scheme used in nearly all commercially-produced DVDs and it protects the content from byte-for-byte copies and forces device makers to build CSS compliant DVD players since CSS-protected DVD’s won’t play on non-compliant devices. The problem with CSS is that it is still illegal to circumvent this copyright protection even in the case of Fair Use!
Always an exception…
Every three years, under a provision of the Digital Millenium Copyright Act (the act that prevents circumvention in all cases of DRM), the Library of Congress can pass exceptions to the law based on use cases or testimony as needs and technology change. “Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works1.” In 2006 the Library of Congress issued an exception for higher education for compilations of content for face-to-face transmission of content by “film and media studies professors.” Under this exception, students completing assignments, or professors requiring content for a class in which the study of film or media is part of the course description may circumvent copyright protections.
Analog is always better.
Most analog content (ie. VHS, other non-digital formats) is not protected by DRM and therefore in cases of fair use may be used. In the MPS lab, we have analog importing devices that may be used for importing video footage from this type of material.
Student Employees are NOT cops/judges/the FCC
Student employees of the MPS or any other position facing issues of copyright infringement have no responsibility to be an enforcement mechanism of the law. We do however want to protect ourselves from liability, so the official policy from the standpoint of Duke, OIT, and the Multimedia Project Studio is as follows:
- Student Employees may inquire as to the source, purpose, and audience for material that a patron wishes to digitize.
- Student Employees are encouraged to advise patrons about applicable copyright laws as outlined above (and indeed should point patrons to this post!) and, in the case that it is possible that the use may not be legal, it is appropriate for the student employee to advise that the particular use case may violate copyright laws. In cases where analog importing is available, it is always preferred.
- However at that point it is up to the patron if they wish to continue to perform their intended task. If further clarification is necessary, they may contact Kevin Smith.
- Student Employees may then continue to explain to the patron how to use our equipment and software.