Copyright Laws

Much of the information in this section was drawn from content posted on the Web site of the U.S. Copyright Office and is based on the U.S. Copyright Act of 1976. The information appears here in an edited form. For the complete, unedited text visit: www.copyright.gov.

In the United States , copyright is a form of protection provided by the government 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 This protection is available to both published and unpublished works, regardless of the nationality or domicile of the author. It is unlawful for anyone to violate any of the rights provided by copyright law to the owner of the copyright.

When Copyright Occurs
Copyright protection exists from the time the work is created in a fixed, tangible form of expression. 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, not the writer, is considered to be the author.

It is important to note that mere ownership or possession of a book, manuscript, painting, website design, etc., does not give you the copyright to the work. The law provides that transfer of ownership of any material object that embodies a protected work does not, of itself, convey any rights in the copyright. It is also important to note that including attribution on a copied work (for example, putting the author's name on it) will not relieve you from a copyright infringement claim. If the work is protected by copyright, you must obtain permission from the copyright holder to reuse it.

Registration & Other Requirements
The way in which copyright protection is secured is frequently misunderstood. Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a tangible form, such as the first time it is written or recorded. Neither publication, registration or other action in the Copyright Office is required to secure copyright, although registration is recommended.

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989 . Should the copyright holder elect to utilize a copyright notice, he/she may do so freely without permission from or registration with, the U.S. Copyright Office. In fact, the use of a copyright notice is recommended as it reminds the public that the work is protected by copyright.

The notice for visually perceptible copies should contain all the following three elements:

1. The symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."
2. The year of first publication of the work.
3. The name of the owner of copyright in the work.

Example: © 2010 John Doe

Duration of Copyright
The term of copyright protection varies with the date of creation. A work created on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death.

For works made for hire, anonymous works and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

For works originally created and published or registered before January 1, 1978, or for more detailed information, you may wish to refer to the public domain (link) section or request Circular 15, "Renewal of Copyright;" Circular 15a, "Duration of Copyright;" and Circular 15t, "Extension of Copyright Terms," from the U.S. Copyright office, www.copyright.gov.

Public Domain
The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were.

Essentially, all works first published in the United States prior to 1923 are considered to be in the public domain in the United States, as are works published between 1923 and 1963 on which copyright registrations were not renewed. Materials created since 1989, other than those created by the U.S. federal government, are presumptively protected by copyright. Therefore, the likelihood that materials of greatest interest are in the public domain is low. In addition, you must also consider other forms of legal protection, such as trademark or patent protection, before reusing third-party content.

Public domain materials generally fall into one of four categories:

1. Generic information, such as facts, numbers and ideas.
2. Works whose copyrights have lapsed due to the passage of time or the failure of the copyright holder to renew a registration (a requirement that applies to works created before 1978).
3. Works created prior to March 1989 that failed to include a proper notice of copyright.
4. Works created by the U.S. federal government.

Also, in rare instances, works may be "dedicated" (donated) to the public domain.

Fair Use
The concept of fair use can be confusing and difficult to apply to particular uses of copyright protected material. Understanding the concept of fair use and when it applies may help ensure your compliance with copyright law.

Fair use is a uniquely U.S. concept, created by judges and enshrined in the law. Fair use recognizes that certain types of use of other people's copyright protected works do not require the copyright holder's authorization. In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder's exclusive rights to reproduce and otherwise reuse the work.

Fair use is primarily designed to allow the use of the copyright protected work for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a "legal defense." That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.

Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered "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.

If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
2. The nature of the copyrighted work.

Use of a purely factual work is more likely to be considered fair use than use of someone's creative work.
3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole.

There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of, or so important to, the original overall work as to be beyond the scope of fair use.
4. The effect of the use on the potential market for or value of the copyright protected work.

This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use.

At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.

While the factors above are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a straightforward concept, therefore the fair use analysis must be conducted on a case-by-case basis.

Understanding the scope of fair use and becoming familiar with those situations where it applies and those where it does not can help protect you and your organization from unauthorized use of copyright materials, however, many individuals do not want this responsibility. Corporate Copyright Policies (link to section) often provide guidelines for determining whether a use may be considered fair use. Frequently, a complete risk analysis is required. Most organizations prefer to follow the motto "when in doubt, obtain permission."

Thousands of cases, and many, many books and articles have attempted to analyze fair use in order to define specific examples.

Examples of Fair Use include:

* Quotation of excerpts in a review or criticism for purposes of illustration or comment.
* Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations.
* Reproduction of material for classroom use where the reproduction was unexpected and spontaneous–for example, where an article in the morning's paper is directly relevant to that day's class topic.
* Use in a parody of short portions of the work itself.
* A summary of an address or article, which may include quotations of short passages of the copyrighted work.


The First Sale Doctrine
The physical ownership of an item, such as a book or a CD, is not the same as owning the copyright to the work embodied in that item.

Under the first sale doctrine (section 109 of the Copyright Act), ownership of a physical copy of a copyright-protected work permits lending, reselling, disposing, etc. of the item, but it does not permit reproducing the material, publicly displaying or performing it, or otherwise engaging in any of the acts reserved for the copyright holder, because the transfer of the physical copy does not include transfer of the copyright rights to the work.

Infringing Copyright

In utilizing any of the exclusive rights provided to the copyright holder without his permission, you may be violating or infringing on his rights under the Copyright Act. If the copyright holder has registered the infringed work with the U.S. Copyright Office prior to the infringement, the copyright holder may be entitled to compensation for his loss. Compensation may include damages, such as lost profits from the infringing activity, or statutory damages ranging from $250 to $150,000 for each infringing copy or higher if the court feels that the infringement was committed "willfully."

You may also be criminally liable if you willfully copy a work for profit or financial gain, or if the work has a value of more than $1,000. Penalties can include a one year jail sentence plus fines. If the value is more than $2,500, you may be sentenced to five years in jail plus fines. Criminal penalties generally apply to large-scale commercial piracy.

"International" Copyright

There is no such thing as an "international copyright" that automatically protects a work throughout the world although more than 150 countries have ratified a treaty intended to accomplish as many of the benefits of "international copyright" as possible. Generally, if a work is protected in the U.S. it is protected in most countries because the U.S. adheres to the leading copyright convention, the Berne Convention, which is administered by the World Intellectual Property Organisation (WIPO).

Copyright and Academia

The Copyright Act generally applies to the creation, protection and use of literary, cinematic, pictorial and many other forms of creative materials. In addition, there are some specific provisions in the Copyright Act for the use of copyright-protected materials by academic institutions, including:

* Section 107 on fair use, which applies to activities such as using excerpts for illustration or comment, unexpected and spontaneous reproduction of classroom materials, and creation of parodies.
* Section 108 on reproduction by libraries and archives, which applies to such activities as archiving; replacing lost, damaged or obsolete copies; patron requests for entire works; and interlibrary loans.
* Section 109 on first sale, which permits the resale or lending of copies of works, providing the basis for library lending and the sale of used books.
* Section 110 on performance and display in the classroom, which permits certain types of content use in the classroom and in distance education.


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