Last updated 6/12/12
Isothermal Community College
P.O. Box 804, Spindale NC 28160
(828) 395-1307 fax (828) 286-8208
Charles P. Wiggins, Director of Library Services
"The Congress shall have the power... To Promote the Progress of Science and the 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, sec. 8, cl. 8)
What Is Copyright?
Copyright is a form of intellectual property protection that is provided by Title 17 of the United States Code to the authors of "original works." Section 106 of Title 17 grants authors six exclusive rights:
In addition to these rights, Section 106A grants visual artists two additional rights: 1) the right of attribution, which is the right "to claim authorship of that work, and to prevent the use of his or her name as the author of any work of visual art which he or she did not create;" and, 2) the right of integrity, which is the right "to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation," and to prevent such destruction.
What Is Protected By Copyright?
The law states that "copyright protection subsists... in original works of authorship fixed in any tangible medium of expression... from which they can be perceived, reproduced, or otherwise communicated...." "Works of authorship" include works of literature, drama, music, visual art and architecture, motion pictures, and computer software - at least to the degree that the software is an expression of the author's creativity. Given the broad scope of works defined, it may be helpful if you think of the term creator when you see the legal term author.
A work does not have to be new and unique to be "original," but it must contain show some small measure of creativity and have been created independently. In Feist Publications, Inc. v. Rural Telephone Service Company the U.S. Supreme Court stated that "Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying." It also helps if you understand that copyright law protects the expression of ideas not the ideas themselves. This is one case in which it is definitely not what you say, but how you say it!
In addition to the originality test, a work must be "fixed in any tangible medium of expression," sometimes called recordation. Recordation is important because without a record it would be very difficult to establish exactly what was created. Also, the medium in which the work is fixed must allow a person to perceive (e.g., read a book, view a web page, listen to a CD), reproduce (e.g., photocopy an article, burn a DVD), or communicate (e.g., play a CD, display a PowerPoint®) the work.
When Does Copyright Protection Begin?
Copyright protection is provided for both published and unpublished works. The copyright subsists from the time the work is created in fixed form and immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
In the case of works for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as a work prepared by an employee within the scope of his or her employment; or certain works specially ordered or commissioned, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
When Does Copyright Protection End? Copyright Duration and the Public Domain
In the United States, copyright protection does not last forever, but the legal duration of copyright has varied greatly over our country's brief existence. Further, in previous times copyright was not always automatic as it is now. Plus, copyright protection may not even be extended at all, depending on who created a work or the nature of the work.
The Public Domain
Works in the public domain are available for unlimited use without permission from the author or creator. The legal concept of public domain should not be confused with a work being publicly available. Books, magazines, MP3s, and online videos all enjoy the same copyright protection regardless of how easy they are to access and copy.
Because of the numerous changes to U.S. copyright law, we now have a myriad of conditions related to a work that determine whether or not it is in the public domain. All works first published in the United States before 1923 are in the public domain, as are works published between 1923 and 1963, unless the copyright was renewed. All works created since 1989, other than those created by employees of the U.S. federal government, are automatically protected by copyright regardless of publication.Works in the public domain generally fall into one of four categories:
If this is starting to sound complicated, it is. Fortunately, there are some great tools that make determining the status of a copyright much simpler:
What Is NOT Protected By Copyright?
The law lists several types of works that are expressly NOT protected by copyright. These include ideas, procedures, processes, systems, concepts, principles, and discoveries. Designs that are so simple as to be commonplace, such as geometric shapes cannot be copyrighted. Facts or collections of facts such as calendars, statistics, telephone directories, or chronologies cannot be copyrighted. The manner in which those facts are expressed can be copyrighted, but the underlying data cannot. Although the expressive content of a book, song, or movie is protected by copyright, titles like Gone With the Wind or The Lion King are not. Short phrases cannot be copyrighted; however, they can be trademarked, as Nike® has done with JUST DO IT®. This protection is to avoid confusion and fraud in the marketplace. You can write a play in which a frustrated mother yells to her son, "Just do it!" but you cannot use the phrase to advertise and sell your own brand of athletic wear. And, of course, any work that is in the public domain, as discussed above, is not protected by copyright.
Generally speaking, a copyright holder's permission is required to reproduce, distribute, modify, display, or perform a copyrighted work. Doing any of those things without permission is a violation of the holder's rights. This violation is called copyright infringement. If the copyright holder has registered the work in question with the U.S. Copyright Office before the infringement, the copyright holder may be entitled to compensation. Statutory damages range from $250 to $150,000 for each instance of infringement and may be higher if the court feels that the infringement was committed "willfully." Willful copying for profit may also carry a criminal liability. Criminal penalties generally apply to large-scale commercial piracy. There are some limited exceptions for which permission is not required, discussed below.
The First Sale Doctrine
The physical ownership of a book, painting, CD, MP3, or any other work is not the same as owning the copyright to the work embodied in that item. Under Section 109 of the copyright law, commonly known as the First Sale Doctrine, a copyright holder's rights to control the change of ownership of a particular copy ends once that copy is sold the first time. However, the copyright holder still retains the copyrights to the content. Purchase and ownership of a physical copy of a copyright-protected work permits lending, reselling, and disposing of the item, but it does not permit reproducing the material, publicly displaying or performing it, or otherwise engaging in any of the acts reserved for the copyright holder, because the transfer of the physical copy does not include transfer of the copyright rights to the work. The First Sale Doctrine is the legal basis upon which libraries (lending) and bookstores (reselling) operate.
While copyright law grants authors and other creators of original works certain exclusive rights (17 U.S.C. sec. 106-106A), the Supreme Court has stated, "[t]he primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work" (Feist). Over time the U.S. courts developed the Fair Use Doctrine based on the constitutional mandate to "promote the Progress of Science and useful Arts," and it was finally given a statutory basis in The Copyright Act of 1976.
Fair use allows for copyrighted works to be reproduced and distributed without permission from the copyright holder in certain limited circumstances. However, there is no absolute definition of fair use, which can be quite bothersome. Title 17 section 107 of the United States Code states explicitly that using copyrighted works "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" and lists four factors which must be evaluated on a case-by-case basis to determine if the intended use is fair:
Although use in a non-profit educational setting is highly favored under the Fair Use Doctrine, not all educational use is fair. In fact, there are several examples of educational uses that are almost always forbidden, such as reproducing consumable workbooks, test booklets, or answer sheets without permission. Use the Fair Use Checklist to help you determine if a use is fair or not. Even so, it can be very difficult to decide if a particular use is fair or not. Reviewing Stanford University Libraries' list of Summaries of Fair Use Cases or Case Law & Judicial Opinions may help you understand the consideration the courts consider important.
Educational Exceptions, The TEACH Act, and Safe Harbor
In addition to fair use, discussed above, copyright law provides other exceptions for educators. Section 108 allows for certain types of reproduction by libraries and archives, primarily for preservation purposes. Section 109, described above under the First Sale Doctrine, legalizes the retail sale of copyrighted material and lending by libraries.
Section 110 deals with the performance and display of works during classroom instruction. Paragraph 1 states that "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution" is not an infringement, but excludes the use of illegally made audiovisuals. The definition of the term perform as used the in copyright law is very broad, and includes both direct performance, such as reciting, acting, or singing a work, and indirect performance such as playing CD or DVD in front of a class. You should also note that the exclusion described in Section 110, Paragraph 1 only applies to face-to-face instruction.
The TEACH Act
The Technology, Education, and Copyright Harmonization Act of 2002, or TEACH Act, amended Section 110, Paragraph 2 and Section 112, Subsection f to clarify what is permissible in the distance education environment. Under TEACH instructors may use a wider range of works in distance learning environments, students may participate in distance learning sessions from virtually any location, all participants enjoy greater latitude when it comes to storing, copying and digitizing materials. However, the law also specifies a formidable list of requirements for both the institution and the instructor to meet. These include, but are not limited to, institutional copyright policies and copyright education, and downstream media controls to prevent copying and retention of copyrighted works after a class session has ended. It is important to note that Section 110 does not supercede fair use. For more detailed information on Section 110(2) see North Carolina State University's TEACH Act Toolkit and the associated checklists.
In law, a safe harbor is a set of rules or guidelines that, when followed in good faith, provide assurance of legal compliance. There is a set of three agreements that were drawn up between organizations representing educational institutions, content creators, and publishers and entered into the congressional record that provide safe harbor to educators in regard to copyright. These agreements outline the MINIMUM, not the maximum, of what is allowable under fair use and thus the safe harbor.
The Digital Millennium Copyright Act
The Digital Millennium Copyright Act of 1998 ("DMCA") is actually a collection of five acts, or titles, that amended U.S. copyright law. Title I of the DMCA was undertaken to bring U.S. copyright law in line with treaty agreements with the World Intellectual Property Organization (WIPO). These provisions make circumventing technical lockout features such as password protection or encryption, or tampering with copyright management information on copyrighted works illegal. Other parts of the DMCA were enacted in an effort to balance the interests of internet service providers (ISP) and copyright owners in the digital environment and protect ISPs from liability for copyright infringement by their users. To fall within the protection of the DMCA, an ISP must, among other things, remove infringing material that resides on its network when it receives notice; adopt and implement a policy that provides for termination of access to users who repeatedly infringe copyrights; and accommodate standard technical measures that are used by copyright owners to identify and protect copyrighted works. The DMCA protects only the internet service provider, and not the users of its system who infringe copyright. These limits of liability also extend to college and universities who act as an ISP for their students, faculty or staff, provide they meet certain requirements.
Adapted and excerpted from:
Feist Publications, Inc. v. Rural Telephone Service Company. No. 89-1909. Supreme Ct. of the US. 1991. Cases and Codes. FindLaw. Web. 10 Aug. 2010.
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This document is not legal advice. It is intended to provide general information regarding copyright and is provided on an "as-is, as available, and with all faults" basis. Consult a qualified attorney for proper legal advice when necessary.
Comments, questions, or corrections should be submitted to Charles P. Wiggins, Director of Library Services.