COPYRIGHT BASICS

WHAT IS COPYRIGHT?

Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

* To reproduce the work in copies or phonorecords;
* To prepare derivative works based upon the work;
* To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
* To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
* To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
* In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
* In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.


WHAT IS THE PURPOSE OF COPYRIGHT?

The copyright statute has its origins in Article 1 Section 8 of the United States Constitution which provides that Congress shall have the power..."To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings
and discoveries."


WHO CAN CLAIM COPYRIGHT?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship 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 made 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: 1) a work prepared by an employee within the scope of his or her employment; or 2) a work specially ordered or commissioned for use if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.


WHEN IS A WORK PROTECTED BY COPYRIGHT?

A work is under copyright protection the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device. Although copyright automatically applies when a work is fixed in a tangible medium, registration with the Copyright Office gives your work full protection of the law in the following ways:

* Registration and deposit of copies of your work provide evidence of what you have created
* Registration is required before you can sue someone in federal court for infringement IS COPYRIGHT TRANSFERRABLE?


Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.


HOW LONG DOES COPYRIGHT LAST?

For works created January 1, 1978 or after, the copyright protection extends for the life of the author plus 70 years. For works for hire, anonymous, or pseudonymous works, copyright protection extends 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. Works published in the United States before 1923 are in the public domain in this country. Coverage dates vary for works created before 1978 and after 1923. See chart attached and online at http://www.unc.edu/~unclng/public-d.htm for details.


WHAT WORKS ARE PROTECTED?

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
literary works

* musical works, including any accompanying words
* dramatic works, including any accompanying music
* pantomimes and choreographic works
* pictorial, graphic, and sculptural works
* motion pictures and other audiovisual works
* sound recordings
* architectural works


These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."


WHAT IS NOT PROTECTED BY COPYRIGHT?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

* Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
* Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
* Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
* Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)


ARE THERE ANY LIMITATIONS TO COPYRIGHT?

In order to promote the progress of science and the useful arts, the Copyright Act places several significant limitations on the exclusive rights of the copyright holder. These limitations include: Section 107: Fair Use and Section 108: The Library Exemptions.


FAIR USE

WHAT IS FAIR USE?

The purpose of the Fair Use Doctrine is to allow limited use of copyrighted material without requiring prior permission from the copyright holder. Title 17, Section 107, of the U.S. Code states "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The statute lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one. Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one. Assessing fair use is not so much difficult as it is uncertain and susceptible to multiple interpretations. Two people can review the same facts about a proposed use and come to different conclusions about its fairness. That's because one must make many judgments in the course of weighing and balancing the facts. The four fair use factors are:

* The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
* The nature of the copyrighted work;
* The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
* The effect of the use upon the potential market for or value of the copyrighted work

LIBRARY EXEMPTIONS

WHAT ARE LIBRARY EXEMPTIONS?

Section 108 of the Copyright Act sets forth specific circumstances under which a qualifying library may reproduce materials or portions of materials. Such reproductions are deemed so necessary and reasonable to the functioning of these libraries and to balance the exclusive rights of the copyright holder that prior permission of the copyright holder is not required. In addition to section 108 rights, a library may also exercise fair use rights under section 107. Only "qualifying" libraries may avail themselves of section 108 provisions. A "qualifying" library is one that is open to the public or open not only to affiliated researchers of the library or archive, but also to other researchers in a specialized field. Reproductions and distributions of materials made under this section may not be made with any purpose of direct or indirect commercial advantage and must include a notice of copyright if one can be found.


WHAT DOES THIS ALLOW LIBRARIES TO DO?

Unpublished Works: A qualifying library may reproduce and distribute an unpublished work currently in its collection only for preservation, security, or if the format for accessing the work has become obsolete. It may also make such a copy for deposit for research use in another qualifying library. The library may reproduce up to three such copies, and they may be in digital format as long as the digital copy is not made available to the public in that format outside the premises of the library.

Published Works: A qualifying library may reproduce a published work only for replacement of a copy that is damaged, deteriorating, lost or stolen and only if an unused replacement cannot be obtained at a fair price. The library may reproduce up to three such copies, and they may be in digital format as long as the digital copy is not made available to the public in that format outside the premises of the library.

Section 108 rights do not extend to a musical work, pictorial work, graphic work, sculptural work, motion picture work, or other audiovisual work. If a customers request copies of these works libraries have to look to the provisions of Section 107 (Fair Use) to determine whether the copy can be made.

InterLibrary Loan: A qualifying library may reproduce and distribute a copy of something from its collection or that of another library of no more than one copy of an article or contribution to a copyrighted collection or periodical issue or a small part of any other copyrighted work under the following conditions.

1. The copy must become the property of the user and the library must have no notice that the copy will be used for any purpose other than private study, scholarship, or research.
2. A copyright warning must be displayed prominently on the order form and where the copy order is accepted.

Unsupervised Photocopying by the Public: A qualifying library is not liable for unsupervised use of reproducing equipment used on its premises if its reproducing equipment displays a notice that the making of a copy is subject to the copyright law.


Sources of Additional Information

UA Library Copyright Web Site:
www.library.arizona.edu/copyright/

Copyright Advisory Network (American Library Association site)
http://www.librarycopyright.net/

U. S. Copyright Office:
www.loc.gov/copyright/circs/circ1.html

Copyright Tutorial, Scholarly Communication Center, North Carolina State University: www.lib.ncsu.edu/scc/Tutorial/main.html

University of Texas at Austin, Copyright Crash Course: www.utsystem.edu/OGC/intellectualproperty/cprtindx.htm

Stanford University, Copyright and Fair Use site:
fairuse.stanford.edu/

Litman, Jessica. Digital copyright : protecting intellectual property on the Internet. Amherst, N.Y. : Prometheus Books, 2001.
Call #; KF3030.1 .L58 2001
Location: Main Library

Vaidhyanathan, Siva. Copyrights and copywrongs : the rise of intellectual property and how it threatens creativity. New York : New York University Press, c2001
Call #: Z642 .V35 2001
Location: Main Library and Law Library


Copyright Policy Manual authored by Albion College is written specifically for the academic environment, including the academic library environment (historic preservation, reserves, interlibrary loans, etc.).
http://www.albion.edu/library/copyright2/main.htm

It deals with the:

* rights of creators
* the rights of users (fair use)
* materials in the public domain
* student use of copyrighted materials for class projects

also with making photocopies of copyrighted materials by material type and by user or environment/situation
printed materials

* classroom use
* archives and library collections
* library reserves use
* interlibrary loans
* coursepacks and customized anthologies

unpublished works
music (for educational purposes)
performances
music
audiovisual materials
microforms
sound recordings (other than music)
artworks
internet use and the web
multimedia
computer software
computer scanning
database downloading

Importantly, the site then provides guidance on "requesting permission to use materials in excess of fair use" and provides Sample Permission Letters, provides numerous guidelines on fair use, etc. including ALA's guidelines and a list of web addresses!

Copyright Term and the Public Domain in the United States prepared by Peter Hirtle at Cornell University that is very useful. The chart covers published and unpublished work and reflects copyright status to January 1, 2004. The chart also includes a new section on the U.S. copyright status of works published outside of the U.S. The Chart is available also in PDF to aid printing. The document also points to several new alternative copyright charts in footnote 1. The Chart is available at: http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

Updated: October 11, 2004