Copyright Fact Series

Just as there are different learning styles, there should be different ways of disseminating basic copyright information.  Some people simply do not have the time or opportunity to read lengthy articles or primers on copyright basics.  Given everyone's busy schedules and/or other priorities, they may also not be able to attend copyright presentations or workshops.  They may, nevertheless, still benefit from basic copyright information.

The Copyright Fact Series was developed as small "bites" of copyright information that could be delivered, one at a time, any number of ways: In regular newsletters (print or electronic), as a repeating item in a group's listserv, or an add-on to a "What's New?" section.  They are particularly helpful for those individuals who read their email but do not have the luxury of spending time on the web.  Delivery methods are limited only by your imagination.

 

COPYRIGHT FACT NO. 1

The copyright notice <©, name, date> is not required for works published after 3/1/89. Therefore, the absence of a copyright notice for such works does NOT mean that a work is not copyrighted.

COPYRIGHT FACT NO. 2

Copyright protection begins the moment an original work is first fixed in a tangible medium of expression. This means, among other things, that a work does not need to be published or registered in order to be protected by copyright.

COPYRIGHT FACT NO. 3

Facts and ideas contained in a copyrighted work cannot be protected by copyright. Only the "expression" of the facts or ideas can be protected.

COPYRIGHT FACT NO. 4

The Copyright Holder possesses six exclusive rights with respect to his/her work:

(1) the right to reproduce it,

(2) the right to prepare derivative works based on it,

(3) the right to distribute it (or copies of it),

(4) the right to perform it publicly, 

(5) the right to display it publicly, and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

COPYRIGHT FACT NO. 5

Works in the 'public domain' may be freely used in any manner for any purpose. This category includes:

1. Works with expired or lost copyright;

2. Works not copyrightable by nature i.e. ideas, facts, titles, etc.;

3. Works produced by a federal government employee in the course of his/her job;

4. Works clearly donated to the public domain (Note: Placing a copyrighted work on the internet does NOT inject it into the public domain).

Generally speaking, works published in the United States before 1923 are in the public domain.

The Copyright Act places certain limitations on the copyright holder's exclusive rights which allow particular uses of their works without having to obtain permission. The next several posts will highlight those limitations most applicable to the higher education setting.

COPYRIGHT FACT NO. 6

A very important limitation in the academic setting is known as the "Fair Use Doctrine". The statute sets forth four fair use factors which, when weighed together, allow a reasoned decision as to whether a particular use is a 'fair use'. If a use is a 'fair use', permission is not required. This is a complicated and fact-driven doctrine--difficult to apply. Briefly, the four fair use factors are as follows:

1. The purpose and character of the use;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the work as a whole; and

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

EDUCATIONAL USE ALONE DOES NOT CONSTITUTE FAIR USE.

The next few posts will elaborate on each factor briefly.

COPYRIGHT FACT NO. 7

The first fair use factor is:

The purpose and character of the use.

This factor will generally weigh in favor of fair use if the proposed use is a nonprofit educational one as opposed to a commercial use.  Most uses here at the university can probably be characterized as nonprofit educational uses.  That would result in this factor favoring a finding of fair use, but remember that the other three factors must also be considered.

Additionally, this factor is more likely to weigh in favor of fair use if your use is [tip:transformative=A use of a copyrighted work that adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message] rather than verbatim copying.

COPYRIGHT FACT NO. 8

The second of the four fair use factors is:

The nature of the copyrighted work

This factor will generally weigh in favor of fair use if the work you wish to use is factual in nature (scholarly, technical, scientific etc.) as opposed to works involving more creative expression such as plays, poems, or fictional works.  The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. (idea/expression merger).

As previously mentioned, this Copyright Fact should be considered in conjunction with Nos. 6, 7, 9 and 10.

COPYRIGHT FACT NO. 9

The third of the four fair use factors is:

The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

Obviously this is a sliding scale factor -- the larger the amount you use, the less likely it will be a fair use.  Contrary to popular opinion, the copyright statute itself does not give numbers or percentages.  The numbers or percentages that you may have heard of derive from the Agreement on Guidelines for Classroom Copying contained in the legislative history of the actual statute.  They are sometimes considered "safe harbor" amounts and are often inappropriately applied to mediums and uses beyond the original photocopying for classroom use that they were written to address. 

This third factor also takes into consideration the quality of the portion used as well as the quantity.  Even if you use only a small amount, this factor may not weigh in favor of fair use if you have taken 'the heart of the matter'.

As previously mentioned, this Copyright Fact should be considered in conjunction with Nos. 6, 7, 8 and 1

COPYRIGHT FACT NO. 10

The final fair use factor is:

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

The fourth factor was often cited as the most important of the four although, today courts are stressing the importance of a transformative use (see Factor One).  Remember, the factors all interrelate and must be evaluated in conjunction with each other.  In many instances, this "effect on the market" becomes problematic if one considers the permissions market as opposed to the market for the original work.  Considering the permissions market easily leads to circular reasoning-- that is, the fair use analysis is done in the first place to see if a permission fee is necessary.  So just because you CAN pay for a use by virtue of there being an existing permissions market shouldn't mean that you HAVE to, right? 

As Georgia Harper explains it--"They [courts] have said that the existence of a permissions market or a demonstration of harm to the market... should not convert an otherwise fair use into an infringing one."  So.., if the first three factors are pointing towards fair use, the fact that there is a permissions market or harm to the market shouldn't affect the results.  But if it's leaning away from fair use after the first three, and there is a permissions market, this factor will finish you off.

Additionally, when courts assess harm to the market, they don't look at your use in isolation but rather the effect your type of use would have on the market if it became widespread.

As previously mentioned, this Copyright Fact should be considered in conjunction with Nos. 6, 7, 8 and 9.

COPYRIGHT FACT NO. 11

The Fair Use Doctrine is a controversial and much litigated aspect of copyright law.  Copyright experts and experienced judges can disagree whether any particular use is a fair one so do not be too discouraged if it seems rather muddy to you.  

It should be very comforting to know that a court must refuse to award statutory damages against you for infringement if:

-you are an employee of a nonprofit educational institution; and

-your use was within the scope of your employment; and

-you believed and had reasonable grounds for believing that your use was a fair use.

As previously mentioned, the Copyright Act places certain limitations on the copyright holder's exclusive rights which allow particular uses of their works without having to obtain permission.  Copyright Facts 6 through 11 briefly discussed the Fair Use Doctrine.  The next group of important limitations on the copyright holder's rights is found in Section 110 of the Copyright Act.

COPYRIGHT FACT NO. 12:

Teachers and students in a nonprofit educational institution may perform or display any copyrighted work in the course of face-to-face instruction in a classroom setting.  This does not include a broadcast, even over closed circuit cable or online courses.

COPYRIGHT FACT NO. 13

Copyright law has some different rules for [tip:transmitting =To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent] materials than it does for using those same materials in a traditional face-to-face classroom setting.   The major (but not only) limitation involves audiovisual materials which cannot be shown in their entirety without obtaining permission or unless covered by a license.

COPYRIGHT FACT NO. 14:

Transmitting displays or performances of copyrighted materials is the subject of the TEACH Act, which updated section 110(2) of the Copyright Act. This section now has so many requirements that splitting it apart into separate "facts" would end up misleading.  There are many online TEACH resources, including the Original TEACH Act Toolkit.

COPYRIGHT FACT NO. 15

Posting copyrighted materials on the internet is akin to publishing or distributing them, a right generally reserved to the copyright holder.  Being the owner or possessor of an original work or copy of that work does not make you the copyright holder.  Therefore, for example, before posting music or lyrics from your favorite CD, scanning in a beautiful image or photo or using someone's cartoon character, you should obtain permission from the copyright holder.

COPYRIGHT FACT NO. 16

Unpublished works are protected by copyright no matter how old they are.  Works created but not published before January 1978 began entering the public domain as of December 31, 2002 - but only if they were still unpublished and the creator of the work had been been dead at least 70 years.  If, for example, the creator has only been dead 69 years the work will not fall into the public domain until 12/31/2003 - and so forth.

COPYRIGHT FACT NO. 17

Although it is not necessary to "register" your work with the U.S. Copyright Office in order to establish copyright, it is a very good idea if you intend to enforce your copyright against infringement.  A "timely" registration (i.e. within 3 months of first publication or before the infringement occurs) makes you eligible to receive 'statutory' damages should you subsequently prevail in a lawsuit against an infringer.  Otherwise all you could recover would be the 'actual' damages which are difficult to prove.  Additionally, registration, timely or not, is required before you can institute a lawsuit for infringement. Details on registration can be found at the U.S. Copyright Office website

COPYRIGHT FACT NO. 18:

The line between unprotected "facts and ideas", on the one hand, and protected "expression" on the other is often difficult to draw.  If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea and there is no copyright protection for the expression. This doctrine would obviously apply more to factual works than fictional ones.

COPYRIGHT FACT NO. 19:

Accessing materials on the internet is really not very different (in a copyright sense) from accessing them through more traditional routes such as physical libraries.  It's just alot easier and generally more fun!  But keep in mind that most material found on the internet IS protected by copyright whether or not it has a copyright notice.  Just because it has been posted on the internet (and remember, it may have been posted illegally) does not mean that the copyright holder has donated it to the public domain or that there is any sort of implied license to make any use of it that you wish.  Analyzing your proposed use in conjunction with 'traditional' copyright law should stand you in good stead.

COPYRIGHT FACT NO. 20

Copyright protection for works created on or after January 1, 1978 usually lasts for the life of the author plus seventy years.  Protection for multi-authored works extends for seventy years after the longest lived author.  Pseudononymous, anonymous, and works made for hire receive protection for ninety-five years from the date of first publication or 120 years from creation whichever comes first.

COPYRIGHT FACT No. 21

Republishing a work which has already fallen into the public domain will not 'restart' copyright protection. A publisher that republishes the works of Shakespeare, for example, cannot claim a copyright in the works themselves since they are in the public domain. The publisher could, however, claim the copyright in anything they added such as a foreward or annotations or an editor's note.

COPYRIGHT FACT No. 22

Copyright infringement is a strict liability offense.  That means you don't actually have to KNOW you're infringing in order to be guilty of infringement.  As they say, 
Ignorance of the law is no defense."

COPYRIGHT FACT NO. 23

Remember that the right to prepare a derivative work is one of the rights of the copyright holder.  Derivative works include, among other things, abridgments, annotations, arrangements of music, condensations, performances of musical works, revisions and translations.  A derivative work is loosely defined as any work that includes significant material from a preexisting work.

COPYRIGHT FACT NO. 24

A copyright owner may transfer all or some of his/her exclusive rights but the transfer must be in writing to be valid.  A transfer of the entire bundle of rights is generally termed an assignment while a transfer of less than the entire bundle is referred to as an exclusive license.

COPYRIGHT FACT NO. 25

Liability for copyright infringement isn't necessarily limited to the direct infringer.  One who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a contributory infringer.  One who has the right and ability to supervise the infringing activity and who also has a direct financial interest in the activity, may be held liable as a vicarious infringer,

 COPYRIGHT FACT NO. 26:

 Remember that the right to prepare a derivative work is one of the rights of the copyright holder. Derivative works include, among other things, abridgments, annotations, arrangements of music, condensations, performances of musical works, revisions and translations.  A derivative work is loosely defined as any work that includes significant material from a preexisting work.

 COPYRIGHT FACT NO. 27:

 Copyright Fact No. 16 discussed unpublished works and the statutory scheme designed to have them fall into the public domain beginning December 31, 2002.  If, however, an unpublished work was published between now before then, it did not fall into the public domain on that date.  It was given 25 more years of protection - until 12/31/27.  If on that date (12/31/27) the author of the work has been dead for fifty years, the work will enter the public domain. 

 COPYRIGHT FACT NO. 28:

 A copyright owner may transfer all or some of his/her exclusive rights but the transfer must be in writing to be valid.  A transfer of the entire bundle of rights is generally termed an assignment while a transfer of less than the entire bundle is referred to as an exclusive license.

 COPYRIGHT FACT NO. 29

 Liability for copyright infringement isn't necessarily limited to the direct infringer.  One who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a 'contributory infringer'.  One who has the right and ability to supervise the infringing activity and who also has a direct financial interest in the activity, may be held liable as a 'vicarious infringer'.