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Original works of authorship
fixed in a tangible medium of expression
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A person's unique way of expressing something
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Requires only a minimum amount of creativity
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Does not protect underlying ideas or facts
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Leaving facts and ideas free
for public use supports copyright's achievement of its purpose, if the
public can gain access to the work.
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Today, it begins at the moment
of fixation in a tangible medium of expression and ends at the expiration
of 70 years after the death of the author. Different
rules apply to older works, however, and there are special rules for works-for-hire.
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Protection is automatic
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Copyright notice is not required
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Registration is not required unless copyright owner wishes to bring
suit
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Registration benefits - statutory damages and attorneys' fees
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Terms of Protection
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Works created during or after 1978
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Life of the author plus 70 years
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Works for hire: 95 years after publication or 120 years
after creation, whichever is shorter
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Works published before 1978
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95 years after publication
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If published before 1964, 28 years after publication +
67 more years if renewed
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Works created before 1978 but not published
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Life of the author plus 70 years or 2003, whichever is
longer
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Recent changes in
Copyright Term Extension Act allow libraries to use certain works
in their last 20 years of protection
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When copyright terms were shorter
and it required a definitive act to bring a work under federal protection,
copyright law's balance favored public access and use (the public domain)
more than it does today. These changes in the law evidence a strong shift
in that balance.
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What Does it Mean to Owners?
Owners have exclusive rights
to
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make copies,
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create derivative works,
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distribute, display and perform works publicly,
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and certain artists have rights of integrity and attribution (moral
rights) in original works of art or limited edition prints (200 or
fewer).
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These exclusive rights are
an important part of the way copyright law achieves its purpose. Along
with the term of protection, they provide an incentive to authors to create.
Much of the tension in the
law today results from the fact that copyright owners typically exercise
their exclusive rights through control over copies. In the analog environment,
controlling copies was relatively easy, but in the digital environment,
it is quite difficult. Inability to control copies is seen by many in
the entertainment and publishing industries as a major stumbling block
to the creation of online content. Solutions to the problem of loss of
control can, however, go overboard.
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Who is an owner?
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The author usually
is the owner
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The
employer is the owner when:
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A work is created by an employee within the scope of employment
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A work is created pursuant to a contract as a work-for-hire
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A work is created pursuant to a contract with an assignment
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When seeking permission, try the publisher or a
rights collective first
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Copyright owners typically assign copyright to their publishers
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Artists, free-lance writers and photographers usually
do not assign copyright; recent cases underscore
importance of authors' rights
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What Does it Mean to Users?
If the law protects a work
you wish to use, you must ask for permission from the copyright owner
unless your planned use is covered by one of the law's exemptions, such
as fair use.
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Fair use (17 USC 107)
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Library's special exemption (108)
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First sale doctrine (109)
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Educational performances and displays (110)
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Software backups (117)
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Modifications for blind and disabled (121)
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These limitations on copyright
owners' rights, and others not mentioned here, are critical to the achievement
of copyright's purpose. They are just as much a part of how copyright
law improves our society by increasing knowledge as the incentive to authors.
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Embodies First Amendment concerns: criticism, commentary, news reporting,
teaching, research and scholarship
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Addresses market failures: permits important uses that don't make
economic sense
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Both of these functions of
fair use strongly support the achievement of copyright's purpose by permitting
certain uses of works that do not significantly affect the owner's incentive.
The fair use statute builds into the fair use test ample consideration
for the copyright owner's interests.
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Section 107 of the
Copyright Law includes illustrations of potential fair uses and describes
four factors that must be taken into account in analyzing
whether a use is fair.
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The Four Factors:
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Character of the Use
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Nature of the Material to be Copied
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Amount and Importance of the Part Copied
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Effect on Market for Permissions
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Fair use is not a blanket exemption
for educators. Fair use permits certain uses of certain works for certain
purposes, taking the interests of the copyright owner into consideration
in the evaluation of each of the four factors.
Applying Analog Laws
to Digital Works
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Fair Use Is Not Just For Copies: It Applies to:
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Making copies of copyrighted works
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Making derivative works (for example, digitizing charts, graphs, illustrations,
slides)
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Distributing works, including electronic distribution
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Displaying and performing works publicly
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Normally, Cases Help Us Understand Fair Use in Various
Contexts
But, No Cases Directly
Address Fair Use of Others' Works
in a Nonprofit Library Context
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Commercial fair use cases - trend is towards narrowing the scope of
fair use (Texaco; Michigan Document Services)
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On the other hand, Sega/Nintendo cases indicate that it is fair use
to make a copy in order to get at unprotected elements or to make
a permitted use
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Bridgeman v. Corel - exact duplication of public domain work lacks
sufficient originality to qualify for copyright protection under Britain's
copyright law
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No one cares what I do with it, right?
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Use is governed by the law and an implied
license
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Modifications to the implied license: Any explicit statement of permitted
or prohibited uses
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Additional fair uses outside the license
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Print works
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Under Section 109, lawfully acquired copies can be disposed
of without the consent of the copyright owner. This is the legal
basis for our public library system.
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Digital works
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Copyright owners do not want anyone, including libraries, to
have the right to dispose of (to lend) digital works
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This is reflected in the new changes to Section 108
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This means libraries have to get permission to make and
distribute a digital copy made from an analog work, unless
fair use or some other legal exemption applies
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Electronic Access Increases Opportunities for Public
Access
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Easier access to others' works
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Wider dissemination of University creations
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Increasing quantity and quality of digital content
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Electronic Distribution Can Threaten Copyright Owner's
Incentive
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Napster
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Recent Changes in Law Tend to Favor Copyright Owners
at Expense of Public Access and Use
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Longer terms
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Automatic protection
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Internet service provider liability limitations marginalize fair use
and other limitations on copyright owners' exclusive rights
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Anti-circumvention provisions eliminate all limitations, even the
term of copyright (locked-up ebooks are often public domain works)
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Licensing and UCITA can eliminate all limitations (among many other
problematic effects)
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Electronic Distribution Can Increase Exposure to
Liability for Copyright Infringement
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Alternative Business Models and Creative Strategies
for Protecting Copyright Owners While Preserving Public Rights of Fair
Use and Access Need Support
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