Copyright Basics
Why Copyright Matters
Why Copyright Matters
Information is everything. It points the way to advances in science and medicine, innovations in business and technology and achievements in education and the arts. The cost of research, writing and editing is substantial and the efforts often Herculean. Some books are the result of years of individual effort; others are the product of ground-breaking collaboration. Either way, without the protections guaranteed by our copyright laws, many of the works we enjoy and rely upon today would never exist.
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:
Generic information, such as facts, numbers and ideas.
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).
Works created prior to March 1989 that failed to include a proper notice of copyright.
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.
Please click here for more information on the First Sale Doctrine.
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.
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:
Generic information, such as facts, numbers and ideas.
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).
Works created prior to March 1989 that failed to include a proper notice of copyright.
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.
Please click here for more information on the First Sale Doctrine.
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.
http://www.copyright.com/ccc/viewPage.do?pageCode=cr10-nComments on Youtube
I think that the companies do lose out on revenue due to copyright infringement. Thing is that it doesn't really matter. It doesn't matter if it is legal or illegal. Due to the vast nature of the internet this material will be posted and only the more popular sites will be adequately monitored. This is why product placement will continue to become more common inside of programming. Companies will estimate the views on the web and charge other companies for the estimated advertisement.
Copyright is not stealing. You take nothing from another individual. There is no loss. Only gain and a weak argument of speculative loss.
Kindle Speech: Must Users be Disabled in order to legally use it? Quick Interview with Fred Von Lohman
Minow: Disability rights groups are protesting the Amazon decision to allow publishers to opt-out of the text-to-speech function for their copyrighted books. Yet the feature remains for works that haven't been opted out. Must users be disabled in order to legally use the feature? Von Lohmann: No, copyright leaves us all free to use our digital devices to "read aloud" to us. Despite the misleading statements of the Author's Guild, you don't violate copyright law when you have your Kindle "read aloud" to you. Copyright law gives copyright owners certain limited rights, including the right to make copies, perform a work publicly (like showing a movie in a theater), or make a derivative work (like writing a screenplay from a novel).When you have a Kindle (or your laptop) "read a book aloud," you are not "publicly performing" it -- if anything, it's a *private* performance. And no additional "copy" of the work is being made (except perhaps in the computer's memory, and recent cases suggest that those kinds of transitory digital copies don't count for copyright purposes). Finally, simply reading the work aloud does not create a "derivative work" -- courts generally require that a derivative work contain original, copyrightable expression, something that should require more than simply reading the text aloud.So I don't think there is anything about your right to have a computer "read aloud" to you that depends on whether or not you are disabled. In my view, there is just no copyright infringement going on here in the first place.Minow: What defines a public performance?Von Lohmann: Where we're talking about a performance in a real place (as opposed to a transmission), the statute defines "public performance" this way: "to perform or display [a copyrighted work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."I don't imagine many Kindles will be used to "read aloud" to an auditorium, so this shouldn't apply to most Kindle users.The real problem here is that Amazon needs a license in order to make digital copies of books and to transmit them to your Kindle. So the copyright owners can simply force Amazon to limit the "read aloud" feature as part of their license agreements with Amazon. In light of this, it's not surprising that Amazon has decided to let the copyright owner decide whether "read aloud" will be enabled for any particular title.It's worth noting that device makers that are not also in the business of disseminating digital copies would not be as vulnerable to pressure from the book publishers -- and that's why I imagine that the future of "read aloud" functionality for the disabled and non-disabled like will be on laptops and e-book readers other than Kindle.
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Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. In that role, he has represented programmers, technology innovators, and individuals in a variety of copyright and trademark litigation, including MGM v.Grokster, decided by the Supreme Court in 2005. Fred has an A.B. from Stanford University and a J.D. from Stanford Law School.
New tool for evaluating copyright use by libraries - a quick interview with Michael Brewer
The Stanford Copyright & Fair Use page just added a new tool to its Charts and Tools page, the "Section 108 Spinner."
Minow: Tell us about the new Section 108 spinner. How does it work and what is its purpose?
Brewer: The "Section 108 Spinner" was actually the first tool we created, but because at that time the Section 108 study group had still not released their findings, we held off on releasing this tool and instead developed and released the "Digital Copyright Slider" first. Once it seemed clear that Section 108 was not going to change any time soon, we decided to go ahead and release the Spinner. The Spinner is focused more on educating and serving the needs of librarians, library staff and archivists. Basically it is there to help them determine when a reproduction of a copyrighted work would be covered by Section 108, the Library and Archives exemption in US Copyright Law. We are focused on promoting the online tool, but we do have some copies of the print tool that we're handing out at conferences or other events. If we hear from people that having access to the print tool would be valuable for their institutions (for their staff in ILL, Special Collections, Collection Management, Public Services, etc.), we might consider making the print tool more broadly available as well.
Minow: Do you have anything else up your sleeve?
Brewer: We've got two more tools in development. One is a "Fair Use Evaluator" which will guide users through the process of making fair use evaluations. The tool collects the evidence and reasoning behind the justification provided by the user, and then provides this information back to them in a nicely formatted, time stamped PDF file for their records. Because Section 504(c) of the US Copyright Code affords some legal protection from statutory damages for those who can show that they made a good faith evaluation of their use and had reasonable grounds for believing it was fair, we feel this feature could be especially valuable. The second is an Educational Exemptions tool that will help instructors determine whether or not their use of a copyrighted work falls under Section 110 and 110(2) [the "face to face" teaching exemption and the TEACH Act], which allow for educational uses of copyrighted works without the permission of the copyright holder under certain circumstances. We've found that there is a lot of confusion out there concerning this portion of the law, so we thought an easy to use online tool might help. This tool can also collect and publish, in PDF format, the circumstances of the use provided by the user. We hope to have these two tools out by ALA Annual in July.
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Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee
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