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What Is Copyright?
What Is Copyright?
Copyright provides the creators of original works of authorship with a set of exclusive rights to copy, distribute, and perform their works for a limited period of time. Protected works include (but are not limited to) books, plays, music, movies, photographs, paintings, sculptures, digital files, and web pages. The U.S. copyright law attempts to balance the private interests of copyright owners with the public interest in the spread of information and is intended, in the words of the Constitution:
“…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Though having undergone major revisions, notably in 1909 and 1976, the U.S. copyright law endures today and continues to apply to works fixed in any tangible medium of expression. Many of the law’s provisions are limited in certain circumstances and the educational milieu is one of the most confusing areas where copyright can be applied.
Types of Works Protected
Length of Copyright Term
Exceptions & Limitations
Plagiarism vs. Copyright
Patents & Trademarks
Liability & Penalties
Copyright Owners’ Rights
Initial ownership of copyright generally belongs to the author(s) or creator(s). The term “copyright” really refers to a bundle of six exclusive rights conferred on the owner. The copyright owner has the exclusive right to:
- Reproduce a work
- Prepare derivative works based on the original
- Distribute reproductions
- Perform the work
- Display the work
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission (e.g., webcasting).
The copyright owner(s) may transfer or license one or more of these rights to others for a specific period of time or in perpetuity.
In the case of works created by employees during the course of and within the scope of their employment, the employer is considered to be the author.Section 101 of the U.S. copyright law defines such work as “work made for hire.”
There are nine other highly-specific examples of works made for hire contained in Section 101 of the U.S. copyright law, all of which must be specially ordered or commissioned under a written agreement: contributions to collective works, parts of a motion picture or other audiovisual work, translations, supplementary works, compilations, instructional texts, tests, answer materials for tests, and atlases.
Essentially, it is illegal for someone other than the copyright owner or licensee to exercise these rights. However, several exceptions and limitations to these rights are granted in Sections 107 through 122, in Chapter 1 of the U.S. copyright law.
Types of Works Protected
- literary works
- musical works, including accompanying words
- dramatic works, including accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
To be protected by copyright, works must be fixed in a tangible medium, that is, recorded, for example, in writing, in a book, on a recording, in a photo, in Braille, in a Web page or other digital format, etc. The work must be original, and it must have some creative spark, “no matter how crude, humble, or obvious” it might be (Feist Publications, Inc. vs. Rural Telephone Service Co., 499 U.S. 340 (1991)). Copyright comes into existence from the moment fixation of the work occurs; no registration or other formalities are required to create and own copyright.
What Is Not Protected
- works not fixed in a tangible form of expression (e.g., improvisational unrecorded speeches, performances, and choreographic works)
- titles, names, short phrases and slogans; familiar symbols or designs, mere variations of typographic ornamentation, lettering, mere listings of ingredients or contents
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
- certain works produced by government employees
- works consisting entirely of information that is common property and containing no original authorship
In other words, the law protects the expression of facts and ideas, but not the facts and ideas themselves. Also, the law does not provide guidance as to where an “idea” stops and creativity starts. Case law and statutes ultimately make that determination.
Until 1978, you were required to register your work with the Library of Congress and to provide a copyright notice before your work was protected by copyright. Today, it is not necessary to publish a work or to register a work with the U.S. Copyright Office. Copyright protection subsists in an original work of authorship from the time it is created and fixed in tangible form.
Registration is not a requirement and can be made anytime within the life of the copyright. However, there are significant advantages to timely registration, including the following:
- Registration creates a public record of your copyright claim and may make it easier for others to find you when they seek permission to use your work.
- If made within the first five years of publication, registration becomes prima facie (legally sufficient to establish a fact or a case unless disproved) evidence of copyright ownership, validity, and the facts stated in the registration certificate.
- Registration is required to file an infringement suit in a court.
- Registration within 3 months of first publication or prior to any infringement will make statutory damages and attorney’s fees available to the copyright owner in an infringement action.
Length of Copyright Term
The length of copyright coverage (the “copyright term”) can be a complex calculation under U.S. copyright law. Knowing the applicable copyright term is critical when deciding whether a particular work is in the public domain and therefore freely available to anyone to use, or is still protected by copyright. For example, under the current U.S. copyright law, works published in the U.S. before 1923 are no longer protected by copyright and are now in the public domain.
In general, published works created on or after January 1, 1978, are protected for the lifetime of the author plus 70 years. In the case of joint authorship, copyright protection continues for 70 years after the death of the last surviving author.
Works published in the U.S. before 1923 are no longer protected by copyright. Unpublished works, works published in the U.S. between January 1, 1923, and January 1, 1978, present a variety of conditions and circumstances that must be considered in calculating the copyright term. Peter B. Hirtle at Cornell University has created a useful and comprehensive table detailing copyright duration and the public domain.
ALA’s Digital Copyright Slider: Is it protected by Copyright? (for works first published in the USA)
Editions with Several Dates in the Copyright Notice
- The later material may be protected.
- The earlier material may be in the public domain.
- Unless the original material and later revisions are clearly distinguishable, all should be treated according to the latest date of copyright.
Section 104 of the U.S. copyright law, specifies that works authored in foreign countries are subject to U.S. copyright protection under specific conditions.
Published works are subject to protection if
- on the date of first publication, one or more of the authors is a national or domiciliary, or under sovereign authority of a foreign nation that is a party to a copyright treaty to which the U.S. is a party;
- the work is first published in the U.S. or in a foreign nation that, on the date of first publication, is a party to the Universal Copyright Convention; or
- the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
- the work is a Berne Convention work; or
- the work comes within scope of a Presidential proclamation.
Unpublished works are subject to protection without regard to the nationality or domicile of the author.
Special note: Foreign copyright regulations are very complex and the duration of copyright can vary significantly. Some authorities advise that it is not safe to assume that a foreign work copyrighted in the last 200 years is in the public domain.
The U.S. Copyright Office has this to say:
There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. For further information and a list of countries that maintain copyright relations with the United States, request Circular 38a (PDF), International Copyright Relations of the United States.
See also a section on foreign copyrights under Length of Copyright Term.
Kenneth Crews, in “Copyright Laws Around the World” , provides a summary of international copyright laws, including laws pertaining to the Berne Convention, as well as notable copyright exceptions in various countries.
Exceptions & Limitations
Section 106 in Chapter 1 of the U.S. copyright law (17 U.S.C.� 106) lists the six exclusive rights copyright owners have regarding their work. However, the next sixteen sections of Chapter 1 in the law set forth many exceptions and limitations on those rights. Four of these exceptions are commonly at play in education:
- Section 107 Fair Use – This is probably the most well known exception, yet most confusing and controversial. Fair use relies on a four-factor use analysis. Fair use was codified in the Copyright Act of 1976 (the current U.S. copyright law) and recognizes the public’s interest in using copyrighted works in the educational process and to create new works.
- Section 108 Library Exception – Working in harmony with exceptions like fair use, the library exceptions ensure that libraries serving the public and scholarly research communities will have access to copyrighted works for their non-commercial activities.
- Section 109 Right of First Sale – This exception makes it possible for anyone to redistribute their purchased copy of a copyrighted work by resale, lending, or donation. It is one of the foundations on which libraries stand ready to lend materials in their collections to their user communities.
- Section 110 (2) Exemptions of Certain Performances and Displays – This section exempts from infringement liability certain performances and displays of copyrighted works, typically in the context of educational or religious presentations or ceremonies. Of greatest importance to libraries is Section 110(2), which codifies the Technology Education and Copyright Harmonization Act of 2002 (“TEACH Act”). The TEACH Act is an important revision to the copyright law that ensures that new technology-based education (e.g., distance education using the Internet) may apply the principles and provisions of fair use in their curricula. Academic institutions must satisfy TEACH Act requirements in order to make its provisions available to their constituents. (Learn more about the TEACH Act.)
If the contemplated use of a copyrighted work does not qualify under the library (Section 108), classroom teaching, or distance education exemptions (Section 110), then the more general fair use test of Section 107 is generally applied because that test is much broader and more flexible.
The individual who is using the work must decide which (if any) exemption is applicable. This should be a conscious decision, rather than a decision by default or assumption. It is the responsibility of all members of the University of Connecticut community to understand the exemptions and to make a good faith determination that the use of a copyrighted work is authorized under one or more of the exemptions. A good faith determination means that the individual must understand the exemption that s/he is selecting, be able to articulate the exemption, and be able to articulate why the exemption reasonably applies to the specific situation. If none of the exemptions is applicable, then permission should be requested for the use of the work.
Plagiarism vs. Copyright
Copyright infringement is a violation of the exclusive rights of the copyright holder and may carry legal consequences. Copyright infringement can take many forms. Examples of copyright infringement may include borrowing significant portions of another’s work in the creation of a new work, making and distributing unauthorized copies of a sound recording or video, or publicly performing another’s work without permission from the copyright holder, even if the original work is cited.
The law identifies several exceptions and limitations to copyright that do not constitute infringement.
Plagiarism involves using another’s work without attribution, as if it were one’s own original work. It is considered an ethical offense and can be detrimental to one’s academic reputation and integrity.
It is possible to plagiarize without violating copyright, and it is possible to infringe on another’s copyright without plagiarizing. It is also possible to both plagiarize and violate copyright at the same time.
Patents & Trademarks
For all information on patents and trademarks, please refer to the U.S. Patent and Trademark Office.
Liability & Penalties for Copyright Infringement
If anyone exercises without permission a copyright holder’s exclusive rights, such as copying or performing the work, the copyright holder may file a civil lawsuit in a U.S. federal district court charging that person with copyright infringement. If the copyright holder wins the lawsuit, the court will enter a judgment against the party accused of infringing the copyright. The judgment may contain a number of financial and other penalties, including payment of statutory or actual damages, payment of profits attributable to the infringement, payment of attorneys fees and court costs, and injunctive relief that may include the seizure and destruction of the infringing materials.
In order to have access to all potential remedies for copyright infringement, the copyright holder must have registered the work with the U.S. Copyright Office prior to the date of the infringement.
Types of Civil Liability
There are three types of civil liability in copyright infringement cases. The type(s) of liability depend on the activities and knowledge of the parties who are being accused of infringement.
- Direct Infringement – The copyright holder must prove that s/he owns the infringed copyright and that the accused infringer violated one or more of the copyright’s exclusive rights. The copyright holder must first prove direct infringement in order to make further claims of contributory or vicarious infringement.
- Contributory Infringement – The infringer is liable to the copyright holder if it is proved s/he engaged in personal conduct that encouraged or assisted the infringement. In this type of liability, the infringer must have actual knowledge or “reason to know of the direct infringement.” The infringer must also contribute to the infringement in a material way.
- Vicarious Infringement – The copyright holder has to prove that the infringer had the right and ability to supervise the activities that infringed the copyright and had a financial interest in those activities.
Once the court decides that the accused infringer is liable, the next phase is to determine what damages the copyright holder should receive. Section 504 of the U.S. copyright law gives the copyright holder the choice of recovering the following:
- actual damages and the infringer’s profits, or
- statutory damages, ranging from $750 to $30,000 for each infringing copy. If the copyright holder can prove that the infringement was committed “willfully,” the court has the discretion to increase statutory damages up to $150,000 per infringing copy.
In order to qualify for choosing statutory damages, the copyright holder must have registered the infringed work with the U.S. Copyright Office prior to the date of the infringement. If the work was not registered, then the copyright holder can only recover actual damages and the infringer’s profits.
Attorney’s Fees and Court Costs
If the work was registered with the U.S. Copyright Office and the infringement occurred after the registration date, Section 505 gives the court the discretion to award reasonable attorney’s fees and court costs to the copyright holder.
Section 502 and 503 detail other remedies, including a court order barring the infringer from making further copies and an order to seize and destroy unauthorized copies.
Section 506 of the U.S. copyright law and Section 2319 of Title 18 of the United States Code (Crimes and Criminal Procedure) specify criminal liability for willfully infringing copyright.
- If the infringer willfully copies a work for profit or financial gain, or the work has a value of more than $1,000, the court can sentence the infringer to one year in jail plus fines.
- If the copied work’s value is more than $2,500, the infringer can be sentenced to five years plus fines.
- Repeat offenses can lead to longer periods of imprisonment.
Criminal penalties specifically apply to making copies of materials by computer on the Internet such as music, movie, and software files.
Information technology (IT) resources must be utilized respectfully and as authorized and designed.
While utilizing University-owned IT resources, no user or administrator is authorized to engage in any activity that violates University policy or any illegal activity under local, state, federal or international law.
See the full policy at Acceptable Use, Information Technology.