Copley Library

Drop Shadow

Copyright Basics

What Is a Copyright and What Does a Copyright Protect?

A copyright is the set of exclusive legal rights that authors have over their works for a limited period of time. Copyright protection is based upon Article I, Section 8 of the United States Constitution which provides in pertinent part: “The 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 …” The Copyright Act of 1976 and its amendments implement this provision of the Constitution and extend protection to eight categories of “works of authorship”:

(1) literary works (including not only books, articles and similar works, but also software programs and their accompanying documentation)

(2) musical works, including any accompanying words

(3) dramatic works, including any accompanying music

(4) pantomimes and choreographic works

(5) pictorial, graphic and sculptural works

(6) motion pictures and other audiovisual works

(7) sound recordings

(8) architectural works

To be eligible for copyright protection, the work of authorship must be both “original” and “fixed in a tangible medium of expression.”

To be “original,” the work need only reflect a minimal degree of creativity and must not have been copied.

A work is “fixed in a tangible medium of expression” when it actually is reduced to paper, the computer screen, a piece of canvas, etc. – and becomes something more than just an idea in the author’s head. Copyright law does not protect the underlying facts or ideas in a copyrighted work, but rather only protects the expression of those facts or ideas. For example, copyright law does not protect factual data in a research article, even if the information or data was previously unknown and required a great deal of effort to collect. By way of another example, copyright law does protect the Harry Potter book series, but would not prohibit others from writing books about child witches and wizards.

What Rights Does Copyright Protection Provide?

Copyright law gives the owner of a copyright the exclusive right to make copies of the copyrighted work, distribute the work, display or perform the work, and create derivative works. Copyright law also gives the owner the exclusive right to authorize others to do the same. These exclusive rights are subject to limited exceptions.

Is A Mark or Registration Necessary for Copyright Protection?

No. Works published after 1989 do not need to have a copyright notice to enjoy protection. Similarly, registration of the copyright is not required to obtain a copyright, although it may be required to enforce a copyright in federal court.

How Long Does Copyright Protection Last?

Works published in the United States between 1923 and 1978 are protected for 95 years from the publication date, if proper copyright formalities were followed. Since 1978, works generally have copyright protection for the life of the author plus 70 years. Any work published in the United States before 1923 is in the public domain and may be freely used.

When Is Permission Required?

Unless an exception to the copyright owner’s exclusive rights applies, you must obtain permission from the copyright owner to copy, distribute, display, or perform a copyrighted work in any medium for any purpose.

Exceptions

Works in the Public Domain

Works that have passed into the “public domain” are no longer subject to copyright protection and may be used freely by anyone, in any way, and for any purpose, educational or otherwise (at least insofar as copyright is concerned). Unfortunately, there is no central, comprehensive, and authoritative registry of public domain works; the rules governing public domain status are complicated; and there are many misunderstandings. For example, it is not the case that a work is automatically in the public domain simply because it is available on the Internet or does not contain a copyright notice. While many such works are in the public domain, those facts alone do not determine their status.

Two categories of works that clearly are in the public domain are: (1) works that were first published in the United Status before 1923; and (2) “works of the United States Government” (defined as works “prepared by an officer or employee of the United States Government as part of that person’s official duties,” such as federal judicial opinions, presidential speeches, and congressional and federal agency reports), regardless of when they were first published.

Fair Use

The fair use doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the copyright owner.

Whether a particular use is a “fair” use requires a case-by-case balancing of four subjective factors. Those factors include:

(1) The purpose and character of the use. Use for educational, non-profit and personal use is favored over commercial use. However, not all educational uses are fair use.

(2) The nature of the copyrighted work to be used. Use of a work that is factual in nature weighs toward a finding of fair use. Use of imaginative works is more likely to weigh against fair use.

(3) The amount and significance of the portion used in relation to the entire work. When only smaller portions of a work are reproduced, the balance tips in favor of fair use. When large portions are reproduced, the balance tips against fair use.

(4) The impact of the use upon the potential market for or value of the copyrighted work. Uses that have little or no impact on the marketability of the work are more likely to be considered fair use. Where a work is available for purchase or license at a reasonable cost, copying all or a significant portion of the work (in lieu of purchasing or licensing a sufficient number of authorized copies) would likely weigh against fair use.

The fair use law is purposefully broad and flexible. It requires thoughtful analysis of each of the four factors based on the particular facts of the situation. A final determination of fair use depends on weighing and balancing all four factors against the facts of an individual situation. Faculty, administrators, staff, and students are encouraged to evaluate the contemplated fair use of copyrighted works in an informed and reasonable manner in order to meet educational and research objectives.

Performance and Display of Copyrighted Works in the Classroom

Under a specific statutory exception to copyright, faculty and students may perform or display any copyrighted work in the course of face-to-face teaching activities without obtaining the permission of the author. Note that this exception does not permit copying or distributing a work. It only permits “displaying” the work (i.e. showing a copy of it either directly or by means of a projection or similar system) or performing it during class time (i.e. showing a film or video, playing music, reciting a poem, acting out a play, etc.) To qualify for this exception, the audiovisual work must have been lawfully made.

Performance and Display of Copyrighted Works in Distance Education

The Technology, Education and Copyright Harmonization Act of 2002 (the “TEACH Act”) establishes standards for copyright and distance education. The TEACH Act redefines the terms and conditions on which accredited, nonprofit educational institutions in the United States may use copyrighted materials in distance education without permission from the copyright owner. The law expanded the categories of works that can be performed in distance education to include “reasonable and limited portions” of most works, with the exception of works produced primarily for the education market.

While the TEACH Act expands the scope of educators’ rights to perform and display works for distance education, the law is much more narrow that than the exception that permits the performance and display of copyrighted works in face-to-face classroom activities. In a classroom environment an educator may show or perform any work regardless of format with no permission from the copyright owner. Under the TEACH Act, the same educator would have to scale back some of those materials to show them to distant students.

Provided the requirements of the TEACH Act are followed, transmissions of performances of entire non-dramatic works and reasonable and limited portions of any other performance or audiovisual work may be made without obtaining permission from the copyright owner. The TEACH Act imposes a number of restrictions and requirements, including, among others:

(1) A work may be displayed only in “an amount comparable to that which is typically displayed in the course of a live classroom session,” which, depending on the nature of the work, may not include the entire work. As a result, the TEACH Act would not permit the posting of lengthy readings that typically would be studied outside of class and is not a justification for the creation of electronic coursepacks.

(2) Nondramatic literary and musical works may be performed in their entirety, but other works may be performed only in “reasonable and limited portions.”

(3) To the extent technologically feasible, the institution must limit access to the works used to students officially enrolled in the relevant course.

(4) To the extent technologically feasible, the content must not be subject to retention by students.

Please see the links below for more detailed information about the TEACH Act and its many restrictions and requirements.

First Sale Doctrine

The owner of lawfully obtained copyrighted content may dispose of (lend, rent, sell, give-away, or throw away) that copy without permission of the copyright owner. This exception does not apply to recorded music, and software licenses typically prohibit the use of the first-sale doctrine.

Libraries and Archives

Under copyright law, libraries and archives have certain exemptions to reproduce copyrighted works.

Electronic Reserves

Please see the university’s Electronic Reserves Copyright Guidelines.

Learning Management Systems (e.g. Blackboard or TWEN)

Please see the university’s Learning Management Systems Copyright Guidelines.

Penalties

The penalties for copyright infringement can be severe. Under copyright law, a court may award up to $150,000 in civil statutory damages for each separate willful infringement. Copyright infringement also can be a crime under federal law. Under University of San Diego policies, violation of copyright laws can result in disciplinary action up to and including dismissal from the university.

Links to Copyright Resources

University of Texas Libraries: Copyright Crash Course
http://copyright.lib.utexas.edu/

Stanford University Libraries’ Copyright and Fair Use Site:
http://fairuse.stanford.edu

Copyright Information and Education (University of Minnesota):
http://www.lib.umn.edu/copyright/

The United States Copyright Office:
http://www.copyright.gov

Copyright Clearance Center:
http://www.copyright.com