"Copyright is the form of IP law most often encountered by the general public. The public welfare would be well served by education explaining why respect for copyright is beneficial for society as a whole and the privileges and limitations of copyright protection." ~ National Academy Committee on Intellectual Property Rights and the Emerging Information Infrastructure
"There are substantial gaps in the knowledge base available to policy makers who must grapple with the issues of digital IP. The methodology ... in studies of illegal commercial copying [has often been] flawed and sometimes biased to produce high estimates of revenue losses." ~ National Academy Committee ...
"With 20 years of hindsight we can look back and see that none of these dire predictions have come true: the cable television industry is financially healthy, television advertising revenues haven't tumbled, and movie theaters still attract a healthy business. Ironically, the studios that tried to prevent the use of home video recorders now make almost half their income from rental and sales to the home video market that they had previously sought to eliminate as a threat to their profits." ~ Howard Besser
"Unfortunately, this vision is corrupted as economic motivations dominate the use of copyright to protect investment in works without regard for the public interest. Copyright permits a few entities to control a vast amount of works, considered beneficial to the public good, yet out of its reach. This domination over creative works is sanctioned by legislatures and courts through copyright infringement actions and other significant legal consequences." ~ Joshua S. Bauchner
"In unprecedented ways, a range of industries is using new technologies, expansive intellectual property rights and market consolidation to convert a great landscape of free, publicly accessible information into privately controlled markets. ... Most citizens, consumers, computer users, creative artists, educators, scientists, journalists, among many others, do not truly recognize how they are losing their traditional fair use and public domain rights in information, and that the weakening of these rights--and the loss of diverse information commons--is changing some basic premises of our culture." ~ David Bollier
The U.S. Copyright Office. The Office's Copyright Search page. Includes works registered since 1978.
Copyright Resources Online by the Yale University Library.
Copyright: An Overview by Cornell's Legal Information Institute.
The Copyright Website. An award winning and authoritative site.
The National Academies Intellectual Property WWW Pages.
The University of Texas hosts a pioneer comprehensive site for faculty concerned with intellectual property issues. Here is a crash course in copyright.
The Copyright Clearance Center
The Copyright Handbook by Stephen Fishman
The Public Domain: How To Find Copyright-Free Writings, Music, Art & and More by Stephen Fishman.
Developed from a privilege granted to printers by the authorities, giving them the right to copy a particular work.
First U.S. copyright law in 1790 for 14 years and renewable for 14 years. Later expanded to 28 and 28. Copyright protection was limited to U.S. citizens and residents so U.S. publishers could take work of foreign authors and publishers, usually British, without penalty. This lasted until 1891 when the U.S. ceased to be a haven from copyright protect for foreign authors. Many pirated editions sold in large numbers.
In 1841, in Folsom v. Marsh, the Supreme Court approved Fair Use: "In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree to which the use may prejudice the sale or diminish the profits, or supersede the objects, of the original work."
Berne Convention, 1886 was designed to develop international norms for copyright protection, especially for Europe. Authors of other countries had the same rights as those of the home country. Notable revisions in 1908 and 1928. These expanded duration as life of author plus 50 years and later recognized the Moral Right of authors and artists to object to modifications in a work harmful to their reputation. Copyright became automatic and did not require registration. The U.S. became a signatory in 1988. Berne became statutory law in the U.S.
1909 copyright revision broadened scope and extended life of copyright for a total of 56 years.
The U.S. joined the Universal Copyright Convention in 1955 primarily in response to pirating of intellectual property and fuller exploitation of new global markets. This did not change U.S. copyright law.
1976 copyright revision codified Fair Use and First Sale provisions. Copyright was extended to unpublished works. Section 108 allowed library photo duplication without permission for purposes of scholarship, preservation, and interlibrary loan. Section 107 provided Fair Use protection for purposes such as criticism, comment, news, reporting, teaching, scholarship, and research.
The manufacturing clause, died in 1986, had been a major problem for U.S. publishers because English language material authored by U.S. citizens had to be printed in the US to be copyright protected. Berne would not allow this.
In 1990, the Copyright Act was amended to prohibit the commercial lending of computer software. Libraries were allowed to lend software subject to some conditions. Another amendment stated that state and private universities were subject to copyright regulations.
In Basic Books, Inc. v. Kinko's Graphic Corp. (1991), a federal court found that "course packs" infringed copyrights and were not Fair Use. In the same year, the Supreme Court (Feist Publications v. Rural Telephone Service Co., Inc.) ruled that telephone white pages {data} could not be copyrighted because it was public information. The information industry is attempting to overturn this via Congressional legislation. Such legislation would give ownership of lists of facts to the individual or firm who collects them. For example, the National Football League would own all facts related to NFL games and those facts could be used only with permission and/or payment of fees.
In the Texaco Case (1992-1995), federal courts held that copying articles for employee use was a violation of copyright. The decision seemed to emphasize the for profit nature of Texaco, the relative ease of paying royalties via the CCC, and the fact that the article was considered the "whole work" rather than the periodical issue. Copying the "whole work" is not allowed under Fair Use.
In 1992, copyright renewal was made automatic, dramatically reducing the number of items entering the public domain.
In 1996, the World Intellectual Property Organization (WIPO) provides additional copyright protections. Computer programs are protected as literary works and material in databases is protected. Prohibits circumvention of technology used to protect copyrighted works. This treaty is implemented in the U.S. by the Digital Millennium Copyright Act. However, the database provision has yet to be implemented and is the subject of current legislation.
The Digital Millennium Copyright Act of 1998 was controversial, strongly supported by the information, software, and entertainment industries, and opposed by scientists, librarians, and academics. A few highlights:
The Sonny Bono Copyright Term Extension Act of 1998 retroactively extended the duration of copyright from the life of the author plus fifty years to the life of the author plus seventy years. Work for hire copyright was extended from 75 to 95 years. The Berne Convention in 1996 extended copyright to life of author plus seventy years so we are now in compliance. As a consequence, no copyrighted works will enter in the public domain until 2019 when all works created in 1923 will enter. Some see this as the beginning of a movement toward "perpetual" copyright which seems unconstitutional but seems to be favored by those in intellectual property commerce.
The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 substantially increased damages for infringement. Willfully reproducing digital copyrighted works for purposes of commercial advantage or private financial gain became a federal crime. Sound recordings were explicitly added to Work For Hire provisions. Copyright registration was increased to $30.00.
When items are not actually "sold," as is the case with much computer software, contract law (licensing) applies rather than copyright law. This means that Fair Use does not apply and user rights are extremely limited.
Although attempts have been made to move it to the PTO, the Copyright Office is presently located in the Library of Congress, perhaps because of copyright deposit. The Office receives about 600,000 copyright applications in a typical year and 40% of those come from about 2,000 high volume publishers. About five percent of the applications are now handled electronically. An electronic registration process is being developed.
Based upon an article by Brad Templeton, but with some modifications.
Copyright is automatic upon creation in a tangible form. Registration adds additional legal rights. The copyright holder controls virtually all use of the intellectual property. Like other property, copyright may be sold (transferred to another) for financial gain. The copyright holder has the exclusive right to sell or distribute the work, to display it, to perform it, and to prepare adapt ions of the work (derivative works).
Showing a page from a book to another is display. Reading the same book aloud is a performance. Singing a song aloud is also a performance. Showing a video to a group is a performance. Infringement occurs only when the display or performance is public--those who are not immediate family or a small group of friends. Some displays and performances are allowed in face-to-face teaching.
Photo duplication of a page, making a transparency of a cartoon to show in class, downloading something from a web site are all examples of reproduction.
Placing documents on a site or sharing them with a news group, distributing intellectual property via hand outs in the class room are examples of distribution.
Translations, abridgements, games based on a story, a musical comedy based upon a story, and the book created from a film script are all examples of adaptations or derivative works.
The founders of U.S. opposed the patron system as undemocratic and copyright was intended to free authors from patrons. It was also assumed that the possibility of financial rewards would stimulate creative activity. A limited monopoly would allow the creator to benefit from his work. Society would benefit from a vigorous, growing intellectual life via limited access to the work in the short term and free access to the work in the longer term. Congress has dramatically changed the original proposition so that the limited access is now for a very long term.
The essential purpose was to benefit society as a whole, not just the authors and inventors. There is a delicate balance between creating opportunities for authors and enhancing user access. In recent years, copyright seems to have little to do with authors and much to do with publishers and the information industry.
An author may decide to place her work in the public domain, but that requires an explicit statement. Items in the public domain are placed there purposefully or are not eligible for copyright (Most U.S. Federal government information).
Article I, section 8, clause 8. Congress has the power to promote the progress of science and the useful arts.
Copyright is found in Title 37, Chapter 2 in CFR and Title 17 in the U.S. Code.
The Copyright Extension Law added 20 years of protection for all existing copyrights. Copyright now is for the life of the author plus 70 years. Pre-1978 publications are now protected for 95 years.
The Digital Millennium Copyright Law allows copyright owners to impose technological protection measures to regulate access to and use of copyright works. It is now a Federal offense to attempt to circumvent these measures. Copyright management information may be placed on publications to specify conditions of use. It is now a Federal offense to remove or alter that information. Libraries may make copies of deteriorating works in digital formats. New protection for databases and other collections of factual data were not included in this legislation, but continue to be requested by the information and entertainment industries.
The Copyright Office has been located in the Library of Congress since 1870. Copyright Deposit is important to the Library even though it does not keep all of the items received. Congress continues to attempt to move the Office to the PTO and have all Federal intellectual property regulation under one roof.
The Copyright Office has a discussion list for those interested in being informed of new developments. Much of this information is also found on their WWW site.
Copyright is limited to the particular way an author expresses herself--tangible expression; IDEAS, SYSTEMS, OR FACTUAL INFORMATION CANNOT BE COPYRIGHTED.
Copyright may protect:
Normally, the owner is the person who created the work. Work done by two authors who create one tangible work belongs equally to both (joint copyright owners). If two or more authors contribute to a collective work, they own the copyright for their contribution only. Work prepared by employees normally belongs to the employer (called work for hire). Work done by an independent contractor for an organization normally belongs to the contractor.
Copyright is property. It may be sold, bought, willed to someone, or simply given away. A transfer of the copyright or an exclusive grant or license to use the work is a assignment. Assignments must be written and signed by the owner. A limited transfer, for example just for the foreign publication rights, is known as a license.
Transferring the object is different from transferring the copyright. For example, you could sell a painting but retain the copyright.
Moral Rights were introduced into copyright law in 1990 for certain visual art works produced in editions of 200 or fewer copies. They have been popular in Europe for some time where the moral rights for artists are also more expansive. Moral rights include
The copyright holder faces some limits. Fair Use is one. Limited Library copying is another. The First-Sale Doctrine says that once a copyrighted item is sold the new owner my transfer that object to others by sale, rental, loan, or gift. Increasingly, U.S. publishers are attempting to reduce "First Sale" rights. Some displays and public performances are allowed within the context of face-to-face teaching. Owners of computer software my create a backup copy.
Non-fiction work is more limited than fiction since non-fiction deals mostly with facts that cannot be protected.
All works published before 1978 that did not contain a valid copyright notice are in the public domain
Federal government information is in the public domain by statute. If a private contractor does the work, it may copyright the work. Legally, government-funded work is not the same as government work.
Value added to Federal government information may be copyrighted and frequently is.
State and local government may place their information in the public domain or copyright as they wish.
Those who create intellectual property have different attitudes when they create and when they sell their product. As a consumer, authors want cheap, quick access to information. If copyright law makes it difficult for authors to build on the work of others, their ability to create new work and knowledge in general will suffer. As a seller of intellectual property, authors want market rates for their labor. Publishers typically ignore the problems of the author as consumer. Many authors, typically academics, supply publishers with intellectual property at no or little cost.
Reproduction of copyrighted work is easy, and inexpensive. Professor's convenience packs are a good example of ease of duplication (AAP successfully sued Kinkos on this). Publishers see the Internet is one gigantic copying machine. All copyrighted works can be digitized, and once one the Net, copying is effortless, cost less, widespread, and immediate. With digital products, copy quality can be as good as the original and one can deliver works to a large number of people with ease.
There is a long and continuing history of piracy of intellectual property. The U.S. at one time "pirated" British books. Today, most pirates are in Eastern Europe and Asia. Music CDs and computer software are especially popular. China probably has the most pirates today.
Copyright management information systems are not yet effective nor are they widely available. Control of copyright is decentralized throughout the world, but the market is a global one. National copyright is not enough.
Infringement is a private activity that is difficult to detect. Enforcement is difficult and unlikely. Most impact is on computer software, and audio-video products. For books, nonfiction, especially STM works, and reference may be targets. Periodical publishers have claimed for years that photo-duplication has substantially reduced sales. Evidence is murky.
The consumer is now capable of serving as the publisher and creating copies of books, periodicals, audio and video products, and computer software when desired. Technical solutions may prevent copying, but then technical solutions may also make it easier. The entertainment and information industries are attempting to combine technical prevention and stringent anti-duplication laws.
The public strongly believes that private non-commercial copying of protected works should not be illegal regardless of law or regulation. Inexpensive duplicating technology has created an enormous public appetite for immediate access to copyrighted works with little patience of niceties of property.
The Sony Betamax case is a good example of industry attitude. When the home VCR became inexpensive and widely available, copyright holders predicted that unless Congress acted, the VCR would mean the end of the U.S. film and TV business. Sony was sued for violation of copyright law. The Supreme Court ruled that private non-commercial copying was Fair Use. Today, the video cassette version of a theatrical film earns more than the theatrical releases. Yet, the entertainment industry is attempting to ban new technology which may have a similar positive result for them.
Since March, 1998, registration is no longer required. BUT you must register with the U.S. Copyright Office before you may sue for copyright infringement.
Registration requires completing a simple form and paying a fee of $20.00. There are different forms for different types of work, visual art or literary works for example. Forms are available from the Copyright Office WWW site.
Before March, 1998, protection required a valid copyright notice. Even today, legal rights are limited if you have not filed and placed a copyright notice in a visible place. A valid copyright notice contains
Two copies of the work to be copyrighted must accompany registration and the fee for the copyright to be registered.
If intellectual property is created for an employer, work is "made for hire," and the employer becomes the author and copyright holder. The employer owns the intellectual content.
The Copyright owner has exclusive rights to make copies, prepare derivative works, distribute copies, perform, and display the work. This protects the integrity of the work and the reputation of the creator.
Copyright can be be sold by transferring it in writing. Such a transfer may have conditions applied such as length of ownership.
The life of copyright was changed in late 1998 by adding 20 years (to match European practice):
Prominent lawyers have filed a lawsuit challenging the recent retroactive extension of the term of copyright for another 20 years. The suit focuses on the Constitutional provision that copyright is "for limited times."
Once in the public domain, copyright protection is lost forever.
Copyright law is complex and much disputed. Often, the law is understood only in terms of particular, and sometimes limited, court decisions. The Sony case is a good example of the importance of interpretation.
The Supreme Court unanimously ruled that the alphabetical listing of names and addresses in the white pages of a phone directory was not protected by copyright law. Their decision declared that "copyright rewards originality, not effort". The information industry, especially database publishers, is attempting to change copyright law to reverse this decision. Another attempt to counter this decision by having the entire the World Intellectual Property Organization copyright treaty ratified by the Senate.
The Clinton and Bush Administrations, plus many in Congress, support a very restrictive attitude toward copyright, partially based on the industry notion that without it there would be no worthwhile content on the Net. The information and entertainment industries are attempting to alter copyright so that users must pay a for use fee rather than purchasing an item and then having free use of it.
With products that are leased rather than sold, copyright law is replaced by licensing and contract law. There is no Fair Use under the latter.
Getting Permission by the University of Texas and Obtaining Copyright Permissions by Kansas State University are useful sources.
Permission from the copyright holder is required before most copyrighted material may be used. Ideally, copyright holders would be easy to identify and contact and would provide permission quickly and for a reasonable fee. But that is not the case.
Clearing and paying for rights is cumbersome and expensive. Increasingly, publishers require permission for minimal uses. It is often difficult to locate the copyright holder, it may take years. Often, the outcome is negative:
Horror stories
Permissions are most easily obtained for periodical articles and through the non-profit which is a licensing agent for about 10,000 publishers. The CCC is developing a permissions system that will be quick and easy while insuring that the copyright holder receives a royalty.
This doctrine limits the copyright holder's control over an item to the first time that item is sold. According to First Sale, anyone who purchases a work can then do what they wish with it. For example, First Sale allows the purchaser to resell a work, lend it, share it, or destroy it without consulting the copyright holder. First Sale permits libraries and used book stores, for example, to operate it. Some publishers wish to eliminate this doctrine. Thus, the copyright holder could limit use, perhaps requiring payment for every use. First Sale does not apply to items that are leased or are sold under contract law.
A helpful resource on this topic is Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education by Kenneth Crews.
Copyright and Fair Use by the Stanford University Library.
Many countries, especially in Europe, have no Fair Use doctrine. Many U.S. publishers believe that Fair Use is inappropriate and perhaps illegal. The assumption is that without Fair Use, more items would be sold. Evidence on this assumption is murky.
An author may make limited use of another's work without asking permission. This is the most significant limitation on copyright.
There is no agreed upon definition for Fair Use and guides issued by publishers and librarians differ notably. Some publishers argue that any Fair Use is really free use and oppose it. They believe that photo duplication and ILL substantially reduce purchase of copyrighted works, thus reducing the incentive to publish. Some in government agree with this view.
Whether use is "fair" depends on the circumstance in each case, but is basically a rule of reason. There are no specific number of words, lines, or notes that may safely be taken without permission. However,
Generally safe use:
Fair Use in the traditional class room is relatively broad and includes performance rights before students or involving students. Distance education is another matter. Displays are allowed, but performance may be limited to non-dramatic literary works and non-dramatic musical works. It appears that use of films and videos as well as dramatic works are not Fair Use performances in distance education.
Fair Use of material on the Internet may be strengthened by placing password or other limitations on access to limit use to a registered students. A notice might be placed on the site or in materials distributed that these materials are available only for the educational use of students in IS 999 at the University of Blumpf. They are not for further reproduction or transmission.
Normally, educational non-profit and non-competitive use makes a difference as does use that is transformative, where the copyrighted material is used to create something new as in a commentary.
While courts may use several criteria, four are typically cited.
Rules are not always safe, but they may serve as guidelines:
In fact, an agent of a nonprofit educational institution, acting within scope of employment, believing that the copies made were Fair Use, is exempt from statutory damages for infringement.
This is not part of Fair Use, but is a separate section of the copyright legislation. Libraries may reproduce:
Copying for inter-library loan cannot substitute for a subscription or purchase of a work. Libraries may make only one copy per user and the copy becomes the property of the user and not the library. The library may not profit from making the copy, and copies made must include a copyright statement. Guidelines (not force of law but compelling) suggest that libraries are allowed to copy 5 copies of articles from the most recent 5 years of a periodical in one calendar year. After that, the library needs permission or must pay royalty. Musical works, pictorial, graphic or sculptural works, motion pictures, or other audio-visual works may not be duplicated for a patron's use or for ILL.
Library reproduction rights ordinarily do not apply to reserve book services/collections, but Fair Use may apply.
Libraries are not liable for copying made at unsupervised machines where appropriate notices are posted.
Infringement is unauthorized use of copyrighted material which cannot be defended as Fair Use or another allowable exemption. The person who commits the infringement is liable, but employers and administrators in the organization are also likely to be liable. Current copyright law may provide some protection for agencies that meet particular conditions so that they will be held blameless for the infringement by a faculty member, for example.
Penalties for infringement may include loss of all copies and equipment used for duplication, reimbursement to the owner for losses incurred, payment of any profit made to the owner, statutory damages of up to $20,000 per work infringed, and reimbursement of legal fees. The latter two penalties only apply to items registered with the Copyright Office.
Copying some digital products with commercial intent may also include criminal penalties.
Dialog file 120 covers copyrights since 1978.
Lexis has an excellent Copyright Law Library with an emphasis on case law and legislation.
