Lesson One: The basics of copyright laws
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Lesson One: The basics of copyright laws

This section includes: definitions, history, copyright protection, copyright ownership, fair use guidelines, copyright symbol, copyright registration, public domain, and duration of a copyright.

Lesson One will provide you with the background information needed to better comprehend what a copyright is and the existing U.S. copyright laws. Every student should know that the United States copyright law begins in Title 17 section 101 of the United States Codes (17 U.S.C. § 101). The entire text of the Copyright Law can be found on the web at: http://www.loc.gov/copyright/title17/

Brief Copyright History

Let's begin by reviewing a brief history on U.S. copyright laws. Prior to the Copyright Act of 1976, copyright was protected under the U.S. Constitution, Patent and Copyright Clause. The first copyright law was passed in 1790, then revised in 1831, 1870, and 1909 (1). It was not until the Copyright Act of 1976, as amended in 1992 and 1998, that authors gained more protection under the law. The 1998 Digital Millenium Act extended protection to new formats, and the Sony Bono Copyright Term Extension Act of 1998 provides copyright owners with 20 more years of protection. Other existing acts you should be aware of are the 1988 Berne Convention Implementation Act and the Uruguay Round Agreement Act of 1994. Both will be discussed later in the lesson.

What is Copyright?

According to the law, a copyright protection extends to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (2)

Three terms need further explaining from the above passage: originality, fixation, and expression.

• Fixation- is defined as "the process or result of recording a work of authorship in tangible form so that it can be copyrighted under the" law. (3) Fixation occurs when the musical notes of a song are written on paper.
• Originality- is defined as "the quality or state of being the product of independent creation and having a minimum degree of creativity." (4) This means that the work is the creative result of the author.
• Expression- is defined as "the act of expressing or setting forth in words." This means that the expression is copyrightable not the idea. Ideas, like facts, are in the public domain.

What Does the Law Protect?

Once the work has been created and exists in some form of tangible medium of expression, the work is copyrighted. The law protects the following categories (5):

• Literary works;
• Musical works, including any accompanying words;
• Dramatic works, including any accompanying words;
• Pantomimes and choreographic works;
• Pictorial, graphic, and sculptural works;
• Motion pictures and other audiovisual works;
• Sound recordings; and
• Architectural works.

What is Copyright Ownership?

Next, let's take a look at copyright ownership. Copyright ownership is the author's rights. According to the law, an author has the exclusive right to (6):

• Sell or distribute the work
• Reproduce the work
• Display the work
• Perform the work, and
• Prepare adaptations of the work (derivative works)

Based on the above, only the copyright owner or a person or entity to which the author has transferred all or part of their rights may sell or distribute the work, display the work, perform the work, and prepare derivative works. The author can sue for damages if someone wrongfully uses their published work.

Copyright ownership is referring to the author or authors who own the work, except in the case of "work for hire." "Work for hire" brings up two issues (7):

1. A work created by an employee within the scope of his or her employment, the copyright belongs to the employer, and
2. Where two or more parties enter a signed agreement that the work shall be considered a work for hire

Does Copyright Protect Everything?

Copyright does not protect everything that is published. Copyright does not protect the author's creative idea. Copyright protects only fixed, original and creative expression, not the ideas or facts upon which the expression is based. For example, copyright may protect a film but it cannot protect the underlying theme of the film. In addition, copyright does not protect facts, whether scientific, historical, biographical or news of the day. Any facts that an author discovers in the course of research are in the public domain. We will discuss public domain towards the end of Lesson One.

What is Fair Use?

What is fair use, and how does it apply to you? Fair is the "use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder." (8) You need to consider the following four factors to determine if a use of a copyrighted work is fair use and not infringement. They are (9):

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

• A nonprofit use depends on the particular circumstances
• If the purpose is to make a profit, then you need permission or a license to use the work

2. the nature of the copyrighted work;

• There is an understanding by authors that their work can be used for educational and non-profit use with some limitations.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• This is how much of the work is used in regards to quantity and quality. Is the small portion used the most important part of the document?

4. the effect of the use upon the potential market for or value of the copyrighted work.

• This refers to the buying power of the market and the actual or estimated market loss.

Who Needs to Include the Copyright Symbol?

Now that you have the basic understanding of copyright, let's talk about the copyright notice symbol, ©. The "C in a circle" symbol is used to represent the copyright notice. The introduction of the 1988 Berne Convention Implementation Act amended the copyright law to make the use of a copyright notice optional on copies of works published on and after March 1, 1989. Therefore, use of a copyright notice is no longer required under U.S. law, although it still provides warning that the work is copyrighted. Works published before January 1, 1978 follow strict rules about including the copyright notice (10). If you omitted the copyright notice, your work lost copyright protection. Be aware of the following:

• Works published before January 1, 1978 were required to use the copyright notice since they follow previous copyright laws. If the author failed to include the notice, all copyright protection was lost in the U.S.
• As for works published between January 1, 1978 and March 1, 1989, they are required to use the copyright notice. These works follow different rules than works published before January 1, 1978 if the copyright notice is omitted.
• The Uruguay Round Agreement Act of 1994 (URAA) restored foreign works placed into public domain because of the lack of proper copyright notice in the United States.

There are three parts to a copyright notice, the first being the symbol © or the word copyright. The second part is the year of first publication, and the third part is the copyright owner's name.

Who Needs to Register for a Copyright?

Registration of a copyright with the U.S. Copyright Office has three parts: the registration form, the filing fee, and deposit of copies of the work. You will receive a certificate of registration from the Copyright Office once the office approves your application (11).

If you sue, your work must be registered with the Copyright Office to receive any attorneys' fees or statutory damages. You do not have to have your work registered to sue, but you need to be registered to prove that someone has infringed on your work.

What is the Public Domain?

When works enter the public domain, it means that the work is no longer protected by copyright. Therefore it is in the public domain, free to anyone to use without permission. The public domain includes works such as:

• Works where the copyright has expired and is therefore no longer protected by copyright laws. This includes anything published in the United States before 1923.
• Material in which no copyright ever existed, such as materials created by the U.S. government.
• Ideas, including procedures, processes, systems, methods of operation, concepts, principles and discoveries.
• Facts, whether scientific, historical, biographical or news of the day.

How Long Does Copyright Protection Last?

Hopefully you are not overwhelmed by the information provided thus far, but one more topic to discuss about copyright is the duration of a copyright. How long does copyright protection last? According to the current law, the Sono Bono Copyright Term Extension Act of 1998 (12), the duration of a work published after January 1, 1978 is life of the author plus seventy years. As for joint works, it is the life of the last joint author to die plus seventy years. Work for hire works produced after January 1, 1978 by a company or institution are copyrighted for ninety-five years from publication or one hundred twenty years from creation, whichever is shorter. A copyright always runs out at the end of the calendar year.

As for works published prior to January 1, 1978, take a look at the chart "When Works Pass Into the Public Domain" at http://www.unc.edu/~unclgn/public-d.htm

Copy of the Copyright Act of 1976 http://www.loc.goc/copyright/title17/

1998 Digital Millenium Copyright Act (a pdf file, you need Acrobat Reader to view the document) http://lcweb.loc.gov/copyright/legislation/dmca.pdf

Sony Bono Copyright Term Extension Act of 1998 (a pdf file, you need Acrobat Reader to view the document) http://lcweb.loc.gov/copyright/legislation/s505.pdf

Information about International Copyright Laws http://lcweb.loc.gov/copyright/circs (Circular 38a)

How to register for a copyright http://www.loc.gov/copyright/reg.html

More on the copyright notice symbol http://www.loc.gov/copyright/circs (circular 3)

Duration of a copyright http://www.loc.gov/copyright/circs/

How to investigate a copyright status of a work http://www.loc.gov/copyright/circs (circular 22)

Assistance with locating U.S. copyright holders http://www.lib.utexas.edu/Libs/HRC/WATCH/locating/html

Additional Reading in Print:

Strong, William S. The Copyright Book: A Practical Guide. Fifth Ed. Cambridge: The MIT Press, 1999.

References:

(1) "Copyright." West's Encyclopedia of American Law. 1998 ed.
(2) 17 U.S.C. section 102
(3) "Fixation." Black's Law Dictionary. 7th Edition. 1999.
(4) "Originality." Black's Law Dictionary. 7th Edition. 1999.
(5) 17 U.S.C. section
(6) 17 U.S.C. section 106
(7) 17 U.S.C. section 101, 202(b)
(8) "Copyright." West's Encyclopedia of American Law. 1998 ed.
(9) 17 U.S.C. section 107
(10) Copyright Circular 3 http://www.loc.gov/copyright/circs/
(11) Copyright Registration http://www.loc.gov/copyright/reg.html
(12) 17 U.S.C. section 302-305