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Copyright: Copyright Basics

Copyright Basics

What is Copyright?

What are My Rights as an Author?

What Is and Is Not Protected by Copyright?

What is Public Domain?

Copyright Notices and Length of Copyright Protection

What is Fair Use?

What is Fair Use?

To create a balance between the interests of those who develop intellectual and creative works and those who benefit from accessing and using those works, copyright law includes the exception known as Fair Use.

Under the Fair Use provision, a copyrighted work may be copied or reproduced without permission of the author for the purpose of criticism, commentary, news reporting, teaching, research and scholarship, depending upon whether the use meets the four factors of fair use.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

U.S. Copyright Act, 17 U.S.C., Section 107
Limitations on Exclusive Rights: Fair Use

 

Understanding the Four Factors of Fair Use

The fair use provision may be applied to the use of all copyrighted works, even those in digital form. To determine whether any particular use is a fair use, you should conduct a case-by-case analysis based on all four of the factors below.

  

First Factor: Purpose and Character of the Use

If the purpose of the use is educational, such as classroom instruction and restricted access course websites, for research and scholarship, or for criticism, commentary or news reporting, it is likely “fair use.” If the purpose of the use is for commercial gain or public distribution, then it is likely not “fair use.” However, educational use in and of itself will not assure that your use is a fair use, and not every commercial use will fail as a fair use. Transformative uses, uses that result in the creation of a new work, with a new purpose and different character are favored as fair uses over uses that merely reproduce an original work.        

Second Factor: The Nature of the Copyrighted Work

Factual works, published works and scientific articles that are factual in nature are more likely to be considered available for fair use than are creative, imaginative, artistic, or unpublished works.

Third Factor: Amount and Substantiality of the Portion Used

There are no hard and fast rules concerning how much of a work may be used under fair use but as a general rule of thumb, use only the portion of the work needed to accomplish your purpose and definitely less than the whole work. Amount and substantiality is also a qualitative measure and at times use of even a small portion of a work may be considered too much to qualify as a fair use if that portion used is considered to be the "heart of the work."

 Fourth Factor: Effect on the Potential Market for or Value of the Work

Generally, the consideration for this factor is whether or not there is some economic harm to the owner of the copyright as a result of your use. Repeated use of the same work, or distribution of multiple copies of a work may affect the market value of the work, and such uses are likely not “fair use.” Likewise, if a license to the work or asking the copyright holder permission to use the work are available options, then use of such works is likely not “fair use.” This factor alone, however, cannot determine whether or not a use is fair. If the first three factors weigh in favor of fair use then market harm should carry less weight even when considering the permissions market, since the market is for permissions that are required. Conversely, if the first three factors are tipping the balance in favor of permission then market harm will carry more weight in the balancing of the factors.

 

What is Copyright?

Copyright is a form of legal protection for 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.

What are My Rights as an Author?

"...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."  -- U.S. Constitution, Article 1, Section 8

Copyright law gives authors the exclusive right to:

  • Reproduce a work
  • Prepare derivative works based on the original
  • Distribute copies
  • Perform the work
  • Display the work
  • To perform the work publicly by means of a digital audio transmission, in the case of sound recordings

Authors may choose to sell or assign some or all of their exclusive rights to other individuals or corporations.  In general, it is illegal for someone other than the copyright owner to exercise these exclusive rights. However, Sections 106 through 110 of the Title 17 of Copyright law permits some exceptions and limitations to these exclusive rights:

 

1) Fair Use (Title 17, Section 107) A copyrighted work may be copied or reproduced without permission of the author for the purpose of criticism, commentary, news reporting, teaching, research and scholarship, depending upon whether the use meets the four factors of fair use.

2) The Technology Education and Copyright Harmonization Act, or TEACH Act, (Title17, Section 110) allows use of copyrighted works within a classroom environment and assures that new technology-based education, e.g. distance education using the Internet, may apply the principles and provisions of fair use in their curricula.

3) Libraries and archives may reproduce copyrighted works provided that the use is non-commercial and for the purpose of preservation, research and scholarship. (Title 17, Section 108) 

4) Right of First Sale (Title 17, Section 109)  This exception makes it possible for anyone to redistribute their purchased copy of a copyrighted work by resale, lending or donation… 

 

What Is and Is Not Protected by Copyright?

Protected Works

  • 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

Unprotected 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

  • Works in the public domain

What is Public Domain?

A work in the public domain is a creative work that is not protected by copyright and may be freely used and distributed by everyone. A work is in the public domain if:

1) Its term under copyright has expired, or 

2) The author did not fulfill requirements to renew copyright term, or

3) The work was published by the U.S. federal government.  

Copyright Notices and Length of Copyright Protection

Copyright Notices

Copyright protection subsists in an original work of authorship from the time it is created and fixed in tangible form. While registering a work with the U.S. Copyright Office is not a requirement for copyright protection, registration is required if a copyright holder wants to sue for infringement of his exclusive rights.

Works published on or after March 1, 1989 do not require a copyright notice to appear on the work. Works published before March 1, 1989 should bear a copyright notice.

The most common form of copyright right is the familiar "C" inside a circle followed by the year in which the work was first fixed in tangible form.

© 2009

Using a copyright notice is the responsibility of the copyright owner and does not require registration with the U.S. Copyright Office.

As an alternative or supplementary method of asserting copyright protection, an author may want to assign a Creative Commons license

Length of copyright term

Copyright duration is complex under U.S. Copyright law. In general, published works created on or after January 1, 1978 are protected for life of the author plus 70 years. In the case of joint authorship, copyright protection subsists for 70 years after the death of the last surviving author.

Unpublished works and works created before January 1, 1978 present a variety of conditions and circumstances that must be met to qualify for copyright protection.

This chart will help you determine whether a work is still under copyright or in the public domain.

 

 

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