Category Archives: Copyright Information Notes

What are the exceptions to copyright? (weekly widget)

There are a large number of exceptions to the exclusive rights given to copyright owners. In fact, over 1/3 of the text of the Copyright Act — sections 107 through 122 — are limitations and exceptions to those exclusive rights. All of these sections explain situations in which it is not necessary to obtain authorization from the copyright owner for a given use, even though that use would otherwise infringe one of the exclusive rights. Many of these exceptions deal with very narrow and technical matters, like the rebroadcast of television programs over cable or the reproduction of certain materials for use by the visually impaired. Most of the sections provide for exceptions to specific rights in the copyright “bundle.” Section 110, for example, lists several exceptions to the right to authorize public performances or displays, but it does not refer in any way to the other rights like reproduction or distribution. Only fair use, found in section 107, is an exception to all of the rights held by a copyright owner; when fair use applies, reproduction, distribution, performance, display and the making of derivative works may all be done without authorization.

For purposes of teaching and research, fair use and the first two provisions of section 110 are by far the most important copyright exceptions, and we shall discuss these three provisions in upcoming widgets.

Who owns a paper written by three professors? (weekly widget)

When there are joint authors of a work, each is a co-owner of the copyright in that work. This means that each author has the right to authorize publication of the work, use of it by a third party or the making of derivative works. It is very important, therefore, that joint authors agree in advance on how and when they wish to publish a work; conflicts develop when a single joint author authorizes a use of which the others do not approve, although such authorization is legal. Each joint author is responsible to account to the others for any profits received for the work.

Authors become joint authors when two or more each contribute protectable expression to a work with the intention that their contributions be combined into a unitary whole. Since intention is required, it is not possible to become a joint author accidentally. Contribution to a volume of essays or other collected work does not create joint authorship. Joint authorship is independent of academic rank or any other subordinate relationship (except that of employer/employee) ; a tenured professor, an adjunct instructor and a graduate student would all have equal rights in any work of which they were all joint authors.

If I cite the source I am using, can it still be copyright infringement? (weekly widget)

Citation is a cure for plagiarism, which is a different, but related, problem from copyright infringement. Plagiarism is the unacknowledged use of the work of another — falsely claiming or creating the impression that you are the creator of someone else’s work. It is possible to plagiarize a work even if it is not protected by copyright; one can plagiarize from Adam Smith, who died in 1790, as easily as from Milton Friedman, who died last year. And citing the source always cures plagiarism.

Citation, however, does not cure copyright infringement, which is the unauthorized use of another’s work. If you copy an entire journal article by someone else, without permission, into a book you publish, you probably have infringed copyright, even if you add a footnote citing the original author and source. Citation may help show a good faith fair use argument, but it neither prevents plagiarism nor guarantees fair use. Copyright infringement is avoided either by having the copyright owner’s permission when using someone else’s material or by relying on one of the many exceptions to copyright.

Copyright, of course, does not protect everything. You cannot infringe a copyright when you use public domain material, especially when you take only ideas from another source but do not copy protected expression, since copyright does not protect ideas. But if you fail to acknowledge the source of those ideas, you may still be guilty of plagiarism.

Should I register my copyright? (weekly widget)

It is no longer necessary to register in order to have copyright protection, just as it is not required anymore to have the symbol (c) attached to a work in order to protect it. Copyright protection is automatic, starting as soon as a work is fixed in tangible form. But registration is still important in some situations. You must register a work before you can sue someone else for infringement, and registration creates a presumption that you own a valid copyright. Also, registration within certain time limits makes it possible to receive a larger damage award and attorney’s fees if a copyright owner can prove infringement. So registration is a good idea to protect the economic value of a work, but it is not required; each creator can make a decision about whether or not registration will best serve that individual’s interests.

Registration is accomplished by filing a form, found on the Copyright Office’s web site, along with a copy of the work being registered and a fee, which is currently $45.

So what is in the public domain? (weekly widget)

The public domain, according to Duke’s Center for the Study of the Public Domain, “is the realm of material—ideas, images, sounds, discoveries, facts, texts—that is unprotected by intellectual property rights and free for all to use or build upon.” In the United States, anything that was published before 1923 is in the public domain. Works published between 1923 and 1963 may be in the pubic domain, if they were published without notice (the symbol (c) with a date and name), or if the original copyright was not renewed after the first term of 28 years. It is often difficult to be certain about this, although the database of renewal records made available by Stanford University is a big help. Government works — works created by government employees (but not necessarily independent contractors working for the government) — are also in the public domain because the copyright law does not allow an initial claim of protection in such works. Works published with a Creative Commons license may also be in the public domain, although usually they are partially protected by copyright but available for non-profit reuse. Unpublished works are in the public domain if the author died over 70 years ago. It is important to note that all of these rules have some additional complexities; this chart by Peter Hirtle is very useful for sorting out the intricacies of copyright terms.

Most importantly, facts and ideas are in the public domain, since copyright only protects expression. Patents, however, do protect ideas, so the idea of a patented invention is not free for others to use without a license, while ideas contained in copyrighted expression are.

How long does copyright last? (weekly widget, a little late)

The original term of copyright protection in England was 14 years. In the US it began, in 1790, at, potentially, 28 years (a 14 year term that could be renewed once), then went to a system of two terms of 28 years, so that a renewed copyright lasted for 56 years. In 1976 we changed our law dramatically. Copyright became automatic as soon as a work was “fixed in tangible form,” and the copyright term was based on the life of the author. After another term extension in 1998, copyright in the US now lasts for the life of the author plus 70 years. For works created anonymously, as works for hire, or by a corporate author the term is 95 years from first publication or 120 years from creation, whichever is shorter. These changes mean that the public domain is barely growing at all in the US, since everything is protected automatically and it is now protected for a very long time.

What are the rights protected by copyright? (weekly widget)

Copyright is a set of exclusive rights. By exclusive we mean that the owner of the rights has the sole authority to permit or forbid covered activities. There are five basic things that a copyright holder can authorize or prevent — reproduction, meaning making copies of her work; distribution of the work; public performance of the work; public display of the work and the preparation of derivative works. A derivative work is a work based on the original, like a translation or a film adaptation. All of these rights can be sold or transferred to others, and they can be divided up and sold to different parties.

It is important to note what rights are not given to the copyright holder. They do not have the ability to prevent private displays or performances, for example. Most importantly, there is no right to authorize or prevent uses of the work, as there is in patent law. A user is permitted to make use of a work they acquire without further permission as long as they do not copy it, make a derivative work, or offer a public performance or display. A user is also permitted to distribute the legally acquired copy of the work as they see fit.

When is something a work for hire? (weekly widget)

A work is “made for hire,” so that the employer owns the copyright from the beginning, if the work was created “by an employee within the scope of his or her employment” or if a work by an independent contractor is subject to an express agreement that it will be work for hire and it falls into one of nine broad categories listed in the Copyright Act. Many works created by college and university faculty would seem to be works for hire under the first prong of this definition, but there is a long judicial tradition of excluding these works from the category. Many universities have adopted policies to address when a faculty work is or is not a work made for hire.

Who gets copyright in a work? (weekly widget)

Copyright is automatic whenever a work of original authorship is fixed. No notice (like the symbol ©) or registration is required anymore. The copyright is owned immediately by the person who created the work, who retains ownership unless and until they transfer some or all of the copyright to another. The exception is a work made for hire, where the employer rather than the creator is the immediate owner of the copyright.

What does Copyright protect? Our first widget.

Copyright protects original expression in fixed form. “Original” means there must be some element of “authorship,” but the standard here is very low. A phone book is not sufficiently original, but my grocery list probably is. “Fixed” means that the expression must be available in a medium that can be perceived; unrecorded oral expression is not protected. Most importantly, “expression” means that copyright does not protect ideas, only the form in which those ideas are expressed. I am free to use ideas gained from another’s work in my own original expression without authorization.