Review the following questions to answers to our most frequesntly asked questions regarding copyright information:
What is the difference between Copyright, Trademark, and Patent?
What is protected by copyright?
What cannot be protected by copyright?
What rights are granted by a copyright?
How is a copyright created?
Is registration or placing a notice on the work required?
How long do copyrights last?
Who owns a copyright?
Can a copyright owner transfer the copyright to someone else?
What steps should I follow to determine if I can use materials without infringing a copyright?
What is the difference between Copyright, Trademark, and Patent?
To understand copyright, it is helpful to understand how it fits within the spectrum of intellectual property protection: Copyright—Trademark—Patent. Each protects a different type of intellectual work, so the type of work produced will dictate whether the creator can seek a copyright, trademark, or patent.
Copyright applies to creative expressions of ideas or concepts, such as books, movies, and articles.
Trademark protects commercial slogans, symbols and mottos associated with particular products, services, institutions or companies. (MMC’s motto, “Worship of God through Service to Mankind” is a good example.)
Patent applies to new inventions, designs and discoveries that will provide a functional application.
Each also provides a different level of protection, which is directly related to how easy it is to obtain. In the world of intellectual property law, copyright is the easiest to obtain, but provides the most limited form of protection. The below graph illustrates this point.
Thus, copyright is the “House Made of Straw” of intellectual property: it is easy to build, but it is easy for someone to blow down. Undoubtedly, it is worth obtaining; but authors and creators should not be surprised down the road if there is an exception that allows someone to use the work without infringing the copyright. Of course, this is good news for people – particularly educators – who may want to use a copyrighted work without infringing the copyright.
What is protected by copyright?
Copyright can apply to any “original work of authorship” that is “fixed in any tangible medium of expression.” This may include books, journals, music, poems, photographs, art, movies, websites, sound recordings, architecture, and many other types of artistic or expressive works. If a work (1) is original, (2) is fixed, and (3) possesses a minimum level of creativity, it is likely eligible for copyright protection.
What cannot be protected by copyright?
A basic tenet of copyright law is that it does not protect an idea or concept, but rather a tangible expression of that idea or concept. This makes sense if one imagines how difficult it would be for courts to decide copyright lawsuits if the key inquiry was determining who simply thought of something first. As a policy matter, it also rewards those who make the effort of expressing ideas and concepts; after all, what good to society is a great idea if no one expresses it to the world?
Specific exemptions from copyright are: works in the “public domain”, works created by the federal government, facts, data compilations (e.g., phone books), slogans, short phrases, and titles.
What rights are granted by a copyright?
Copyright includes the right to reproduce, the right to distribute, the right to perform or display publicly, and the right to create derivative works from the original.
Once an “original work” is created and “fixed into a tangible medium of expression”, the copyright is created automatically. The work can be “fixed” by putting it on paper, film, a painting canvas, clay, a computer hard-drive, or anything else tangible.
Is registration or placing a notice on the work required?
No, but is a good idea. Registering a copyright and placing a copyright notice on the work are no longer required by law, although doing so affords some additional legal and practical benefits, which will be discussed later. Likewise, the phrase “All Rights Reserved” was once necessary to protect a copyright in foreign countries, but now is only necessary to protect it in a very small number of countries.
Copyrights for works created today last for the life of the author plus 70 years. Copyrights for works published before 1978 have a maximum duration of 95 years.
Once the copyright expires, the work passes into the “public domain” and the restrictions on its use disappear.
Generally, the individual who creates the work is the original copyright owner. The major exception to this rule is “works made for hire”, which are defined as works that arise from the course and scope of one’s employment or that result from an independent contractor relationship that expressly commissions the work as part of the contract.
Can a copyright owner transfer the copyright to someone else?
Yes, copyrights may be transferred in whole or part. The transfer must be in writing and signed by the transferor.
What steps should I follow to determine if I can use materials without infringing a copyright?
Copyright provides such limited protection that individuals desiring to use the work – particularly educators – can often do so without violating the law. Set forth below are steps that you should follow to determine whether you can reproduce or copy the work.
First, determine if the material falls into a category that cannot be copyrighted.
As noted above, certain types of materials cannot be copyrighted and are therefore safe to use. The two biggest categories are Data Compilations and Public Domain works.
Data Compilations cannot be protected under copyright because they are not “creative” works. The most common example is the phone book.
Works fall within the Public Domain either because they are so old their copyrights have expired – like the complete works of Shakespeare – or because they originated from some public source – like a federal or state government agency.
If the material is published on a public website, direct your audience to the website.
If the desired material is published on a public website, you can provide your audience with a link to the website without, in most cases, infringing the copyright. Say you are a professor and you want to use an article or illustration contained in a public, online magazine.
While copying the article and pasting it into Blackboard may constitute infringement, providing your students with a link to a webpage containing it will not constitute infringement. (The exception to this rule is if the instructor knows that the reproduction found on the website is an illegal reproduction – which is unlikely to occur very often.) The reason is that by clicking on the link and actually visiting the website, each student will be benefiting the website publisher by generating traffic to the website.
If you can identify the owner of the copyright, obtain permission.
In some cases, the easiest solution is to obtain permission from the copyright owner. The owner may grant permission outright, or charge a fee to issue you a license. If you obtain permission, please consult with the OGC so that the scope and parameters of the permission can be properly documented.
Determine if the intended use qualifies under one of the exemptions contained in the Copyright Act.
The Copyright Act exempts certain educational uses of copyrighted materials:
Library Copying (Section 108). Permits libraries to make copies of materials for purposes of “preservation, scholarship, or research.” However, it only applies to certain types of works and only under certain conditions.
First Sale (Section 109(a)). Provides that once the owner sells a copy of a work, that copy may then be sold, loaned, or otherwise transferred to someone else. This enables libraries to lend materials and stores to sell books.
Public Displays (Section 109(c)). Permits the owner of a lawfully made copy of a work to publicly display it wherever the work is located. This enables museums to hang paintings and photos in its galleries and lets bookstores and libraries display their books.
Displays & Performances in Face-To-Face Teaching (Section 110(1)). Permits teachers and students to perform and display all types of works in a “classroom or similar place of instruction.” Thus, it enables teachers and students to display any type of visual work or perform any kind of written work without infringing the copyright. However, it only applies to classroom activities; it does not permit the posting of works on computer servers for viewing outside the classroom.
Displays & Performances in Distance Education (Section 110(2)). This section, adopted in 2002, is known as the "the TEACH Act". Its intent is to address copyright issues related to online educational systems by providing the conditions under which copyrighted material can be posted on servers. Because MMC does not engage in “Distance Education”, this section probably will not apply to uses at MMC.
Determine if the intended use qualifies as “Fair Use.”
The “Fair Use” doctrine is a broad and flexible legal doctrine that allows the public to make certain uses of copyrighted works without permission. It originates in Section 107 of the Copyright Act, which states, “[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords . . . 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 provides a “four factors test” to balance the rights of the copyright owner with the legitimate needs of the public. It is intended as a broad framework to be applied on a case-by-case basis. As an educator, if you understand each factor, you can apply Fair Use with confidence.
- The Purpose and Character of the Use – Non-profit educational use is favored over commercial use. The explicit provision for copying classroom handouts is particularly helpful for teachers. Other uses will be favored if they were for criticism, comment, or other “transformative” purposes (i.e., applies the work in a new context).
- The Nature of the Copyrighted Work – What are the characteristics of the work? Some characteristics are more favored for Fair Use than others. Published works are favored over unpublished; non-fiction or factual works are favored over fiction or other highly creative works; printed works are favored over audiovisual works.
- The Amount or Substantiality of the Work Used – The less of the work you use, the more likely it will qualify as Fair Use. Also, the significance of the part used can play a factor – using a part that is central to the overall work will be less favored.
- The Effect of the Use on the Market for the Work – Will your use of the work decrease the revenue that the owner or author will receive from the compensated use of the work? For instance, if you provide copies of a musical recording to your students, those students are much less likely to pay for a copy for their own personal use. And if the copy provided is capable of being duplicated or digitally uploaded for others to use, the sales of the recording could be greatly affected. Note that the previous three factors of “Purpose”, “Nature”, and “Amount Used” play into this consideration: non-profit educational uses are less likely to affect sales than commercial uses; non-digital works are less likely to be freely disseminated than digital works; and uses of small parts of a work are less likely to decrease demand than uses of entire works.
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