WHAT IS COPYRIGHT?
Although literally meaning the right to copy, copyright is the legal protection given to authors and artists to control the production, presentation, and portrayal of their original works. Specifically, a copyright holder has the exclusive right to reproduce copies of the work, prepare derivative works, distribute copies of the work, perform the work, display the work, and make and perform digital copies of the work (17 U.S.C. § 106).
WHAT IS PROTECTED BY COPYRIGHT?
In the United States, copyright protection extends to any “original works of authorship,” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations (17 U.S.C. § 102(a)). Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery (17 U.S.C. § 102(b)). Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.
HOW IS COPYRIGHT PROTECTION ACQUIRED?
Copyright protection applies automatically to any original work of authorship once it is “fixed in a tangible medium of expression.” Neither a copyright notice on the work, e.g. “©,” nor registration with the United States Copyright Office is necessary for copyright protection. Note, however, that under prior versions of United States law, notice and/or registration were required for copyright protection to accrue. Additionally, the law does confer certain advantages to the copyright owner if notice and registration occur—such as statutory damages for infringement—but neither is required for the ownership of copyright to be perfected.
WHAT IS NOT PROTECTED BY COPYRIGHT?
In a nutshell, copyright protects the expression of an idea or fact, but does not protect the underlying idea or fact. Thus, copyright does not protect ideas, procedures, processes, systems, titles, principles or discoveries, nor does it protect names, short phrases, slogans, familiar symbols, lettering and coloring. While some of these may be protected under other areas of intellectual property—patents, trademarks, trade secrets—they are not protected under copyright.
Copyright protection also does not extend to any works of the federal government (17 U.S.C. § 105). The federal government, however, can hold the copyright to the works of others which have been transferred to it. Likewise, the federal government may be able to restrict the publication of its works on other bases, such as privilege or national security. Works of state or local governments may be subject to copyright, depending on their specific laws, regulations, and policies.
Finally, works whose copyright protection has expired, or never existed, are in the “public domain” and may be freely used.
WHAT WORKS ARE IN THE PUBLIC DOMAIN?
Works of the federal government along with “governmental edicts” of state and local governments—judicial opinions, administrative regulations, legislative codes, local ordinances, and the like—are not copyrightable as a matter of law and public policy (17 U.S.C. § 105; Register of Copyrights, Compendium of Copyright Practices II § 206.01).
Works created before 1923 are in the public domain. For those works created between 1923 and 1988, inclusive, whether the work is in the public domain will depend on whether the copyright holder adhered to the necessary formalities in order to initially trigger copyright protection and to subsequently extend that protection. If the work was published in or after 1989, then it is likely still protected by copyright. The American Library Association has prepared a helpful slider to assess whether an item is in the public domain.
IF A WORK IS NOT IN THE PUBLIC DOMAIN, DO I NEED THE COPYRIGHT HOLDER’S PERMISSION TO USE THE WORK?
Not necessarily. There are a number of specific statutory exceptions to the exclusive rights of the copyright holder. Also, it is possible that your use of the work may have been granted through licenses. Finally, the fair use provisions of the Copyright Act may allow you to use the material without seeking the copyright holder’s permission.
WHAT SPECIFIC STATUTORY EXCEPTIONS EXIST TO THE COPYRIGHT HOLDER’S RIGHT OF EXCLUSIVE USE?
The Copyright Act provides a number of specific exceptions to the copyright holder’s right of exclusive use. Of these, four are most commonly encountered in academic settings: fair use (17 U.S.C. § 107), use by libraries and archives (17 U.S.C. § 108), first sale (17 U.S.C. § 109), and the classroom exception (17 U.S.C. § 110(1),(2)).
Fair Use: Fair use is the most flexible and least defined of the exceptions to the copyright holder’s exclusive use. Broadly, fair use allows the use of a work for such things as criticism, comments, news reporting, scholarship, research, and teaching, so long as certain factors are considered and weigh in favor of fair use.
Libraries and Archives: Libraries and archives, under certain conditions, are permitted to make copies of works for preservation and distribution, and to allow patrons to use equipment to produce their own copies provided certain warnings and notices are given to the patrons.
First Sale: In its most basic sense, the doctrine of first sale allows the lawful owner of a copy of a work to resell the copy or lend the copy to other. This allows such things as the resale of textbooks or the lending of books by a library.
Classroom Exception: The classroom exception allows works to be performed or displayed in face-to-face classroom settings at nonprofit educational institutions and, with more stringent requirements, to be performed or displayed in online courses.
WHAT IS THE DIFFERENCE BETWEEN PLAGIARISM AND COPYRIGHT INFRINGEMENT?
The most evident difference between plagiarism and copyright infringement is that the former is an ethical breach while the latter is a legal breach. Plagiarism occurs when one represents another’s words, ideas, or work as one’s own, without providing proper credit or citation. Copyright infringement occurs when one improperly uses the copyrighted works of another. Because of the different scope of each, it is possible to simultaneously plagiarize and infringe on a copyright (reproducing another author’s journal article as a chapter in a textbook for sale without identifying the source), plagiarize without infringing on a copyright (copying verbatim passage from Darwin’s Origin of the Species without attribution), and infringe on a copyright without plagiarizing (making bootleg copies of the Harry Potter novels).
HOW CAN I TELL IF MY USE OF WORK WILL INFRINGE ON A COPYRIGHT?
First, determine whether the work you propose to use is, in fact, covered by copyright.
Second, if the work is under copyright protection, determine whether a specific exception in the Copyright Act, other than fair use, permits you to use the work. In an academic setting, the most likely exception would be the classroom exception.
Third, if no specific exception exists, determine whether you have permission under a license to use the work. Some works are now published with a Creative Commons license which allows you to use them in any matter consistent with the specific terms of the license. Furthermore, if you are a member of the Fort Lewis College community, material in the Reed Library or Delaney Library may be licensed for your use. If you are unsure whether such a license exists, one the librarians will be able to assist you.
Fourth, consider whether your use of the work falls under fair use. The four factors to consider are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Finally, if you have concluded that you need the permission of the copyright holder, then you will need to locate and contact the copyright holder and fully explain your intended use of the work. If you do not or cannot obtain permission, reconsider your use of the work and whether your use can be modified to bring it within the fair use provisions.