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Copyright Resources: The Basics

Information...not Advice

The information on this site should NOT be considered legal advice.  The author is a librarian, not a lawyer, and this LibGuide is intended as just that: a guide.  If you are unsure of whether or not something is legal, please talk to an attorney.

Help! I Need Somebody...

If you are concerned about an issue related to course content on Moodle or ERes at Kenyon, please contact one of the reference librarians.  We have resources to help you determine if your use is fair or if we need to get permission.

Read more information and submit a form request here on the Digital Course Reserve Page

License

History

The first copyright law we know of was the Statute of Anne, enacted in Great Britain in 1710. "The objective of the statute was to encourage the writing of "useful work" through granting authors the sole right to print their books for 14 years. (Bonner et al, 2). You can check out the full text on Yale Law School's Avalon Project website.

When the United States Constitution was written, the authors - obviously familiar with the Great Britain system of copyright - chose to include the following when enumerating the powers of Congress:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" (U.S. Constitution, Article 1, Section 8)

This is the basis for our copyright law today, which lives in Title 17 of the U.S. Code.

What can be copyrighted?

Let's get to the heart of what we care about - what is copyrightable?  And what does that mean?

U.S. Copyright Law states that to be protected by copyright, works must be original, and fixed in any tangible medium of expression. (Note that the work does NOT have to be registered anywhere...or still in print. Books that are out of print can still be under copyright.)

The following types of works are covered by copyright in the U.S.

  • literary works;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings; and
  • architectural works.

"Wait," you may ask, "what about theories?  My new awesome physics theory must be copyrighted!"  I'm afraid you're out of luck - you can't copyright an idea...which means theories and concepts are also out.  Processes, procedures, methods, and systems are also not protected by copyright.  Facts are also off the table.  All of these things are in the Public Domain (Stayed tuned for more on this later.  Or, if you're impatient, follow this link.)

How long does copyright last?

Forever...ok, no, not really.  In the U.S., copyright duration is pretty extensive, however.

The easy answer is that if you fix a work of sufficient originality in a tangible medium of expression today, the copyright on that work will expire 70 years after your death.  So, if I were to tragically perish in a freak yoga accident just after I publish my blog entry on copyright law later today, the copyright would not expire until 2082, or 2012+70.  

In the cases of corporate authorship, copyright lasts either 95 years from when the work was published, or 120 years after the work was created.

Duration of copyright for works produced in the past, though, gets sticky.  See the chart in the tools section titled "Copyright Term in the U.S.", and check out the "Share" tab for more information.

What rights are covered?

Copyright owners maintain the exclusive right to do the following:

  • Reproduce the work.  (Make copies. This one has become a huge headache in the digital world...see more here.) 
  • Make derivative works. (Build upon the work to create new works...for example, a remix or a mashup.)
  • Distribute copies to the public by sale or "other transfer of ownership, or by rental, lease, or lending."  (No one can sell your work...without your permission.)
  • Perform the work publicly.  (This includes readings of literary works - only the copyright holder has this right.)
  • Display the work publicly.  
  • Transmit digitally (in the case of audio transmission of sound recordings)

These rights are exclusive to the copyright holder; no one else has these rights for someone else's content, unless the copyright holder gives them the right.

But wait!  There are limits on these rights, and those limits are the reason we don't have to ask permission every time we do something covered by the above. These limitations protect libraries, schools and content creators by allowing them to do their work, to a point.

Section 108 allows libraries to make copies under certain situations.  Sction 109 or The First Sale Doctrine, limits the copyright owner's control over sale to the first one.  This is how individuals can re-sell or loan physcial copies of their own books or cds without violating copyright.  

What about educational use?  There is in fact, a limit on these rights when the use is in an educational setting, but it's not as limiting as some might like: The exception for educational use, Section 110, ONLY covers the performance and display rights.  The TEACH Act is more comprehensive, but also has limitations.  See the "Share" section for more information.

You may notice that there's a big limit I haven't mentioned yet, and that's Fair Use.  That limitation is so important, it got its own section...let's go!

Fair Use

The Center for Intellectual Property Handbook describes Fair Use in a really elegant way:

"Fair use enables the use of the copyright owner's exclusive rights for activities that serve the common good and foster debate, criticism, education and scholarship."

In other words, the doctrine of fair use allows us to balance the rights of the copyright owner with what society needs.  Asserting that a use is fair allows a user to continue that use without seeking permission.  However, that assertion must be based on reasonable belief, and involves weighing four factors:

  • 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

It is important to note, however, there is no magic number.  Whether or not a use is fair is determined when a copyright owner sues a content creator, and the content creator defends him or herself by saying, "hey, wait, that's fair use!"  The courts have handed down several decisions which give users guidance in this area.  For details, see the Legal Background section.

For more information on how to evaluate if a use is fair, see the "Create" tab and "Fight for Your Right to Fair Use."

Type of Infringement

There are three types of infrigement.  Again, according to Bonner et al,

"Direct infringement occurs when someone violates any of the exclustive rights of the copyright owner," in other words, you are guilty of direct infringement if you and you alone did the infringeing.  

"Vicarious infringement occurs when one has the right to control the infringement of another or profits from the infringement."  For example, if your website sells t-shirts, and you earn a portion of the profit from each t-shirt, you might be liable for vicarious infringement if one of the designs infringes on copyright.  You have the power to stop it by not selling the t-shirt, and you earn a profit as a result of the infringement.

"Contributory infringement occurs when a person has knowledge of infringeing activity and/or induces, causes or contributes to infringeing conduct" (11).  Contributory infringement might occur if say, you point your students to a link on the Internet that you know is illegal.  You might not have distributed the illegal copies, but you encouraged them to commit copyright infringement by visiting the illegal site.

Suggestions?

This LibGuide is a work in progress.  Have suggestions?  See something you don't understand?  Please contact LBIS.

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