Copyrights & Copy-Wrongs

Article 1, Section 8 of the US Constitution states, "The Congress shall have power... 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 discovers."

The purpose of this protection is to balance between protection of intellectual property and the rights of those seeking to access information.  Copyrights can apply to all concrete forms (written, recorded, digital) of expression.  This protection applies whether the work is registered or not.  By law, all works created since January 1, 1978 are copyrighted unless otherwise noted.

Copyrights protect how ideas are presented, not the actual idea.  Disney, for example, owns copyrights on all Mickey Mouse cartoons and other uses.  They do not own rights on all talking, cute mice.  Facts cannot be copyrighted, but the way they are presented or explained can be.

The word "copyright" means the right to copy.  By law, the owner of a copyright has 6 rights:

• Reproduction.  This refers to making copies.  When a file is downloaded from the Web, it is being copied.  Printing also is a form a copy.

• Adaptation.  Modifications, alterations, or use of another’s ideas is also protected.  Changing format, posting from a book to a Web, and copying someone else’s HTML all fall under adaptation.

• Distribution.  Owners of copyright control how their work is distributed to the public.  Electronic transmissions or simply posting work on the Web is considered distribution.

• Public Performance.  The right to perform a work in public is covered by copyrights.  Digital broadcasts, other transmissions, and live renditions are public performances.

• Public Display.  Owners of copyrights also control how their work is shown to the public.  Anything transmitted digitally is considered a public display.

• Digital Audio Transmissions of Sound Recordings.  Copyright owners have the right to control how their audio recordings are distributed.  Sending or downloading an audio file over the Internet is a digital transmission.

By law, people need permission from the copyright holder to reproduce, adapt, distribute, publicly perform, publicly display, or digitally transmit audio sound recordings unless the intended use falls under a special category called fair use.

Owners of copyrights may sell or license any of these 6 rights permanently or by terms that are agreed upon.  Rights are often sold to publishers.  A copyright owner may allow their work to fall into the public domain, which means that no restrictions apply.  

Copyrights now last for the life of the author plus 70 years.  The Digital Millennium Copyright Act (1998) adds prohibitions on circumvention of protection technology.  It also limits the liability of online service providers, and addresses digital preservation and distant education. 

Copyright Notices

By law, material does not have to contain a copyright notice or be.  From a practical point of view, it does help in building a case that a person has willingly disregarded an owner's copyrights.  A copyright notice has three parts:

1. Copyright, Copr., or ©

2. The year first published

3. Name of copyright holder

An example of a complete copyright notice might be:  2003 ©BreitLinks, Inc.

Work does not need this notice, however, to be protected.

Fair Use

By law, others are allowed some use of copyrighted material if they can show that is not commercial, does not infringe on the main copyrighted idea, and will not affect the potential market for the original copyrighted work.  The purpose is to allow a work to be used for criticism, comment, news reporting, teaching, or research.

Be careful, in order to claim “fair use,” you have to admit that you have infringed or used someone else’s copyrighted material. A court will decide if the use is fair. If a copyright dispute ends up in court, a judge will look at 4 factors to determine fair use.

Purpose or Character of Use.  Is the work for commercial or non-commercial use?  Commercial use is not likely fair use.

Nature of Original Work. Facts cannot be copyrighted, only the way that they are presented.  Use of creative fiction is less likely to be considered fair use. 

Amount and Substantiality of Use.Are the main parts or substance of the original use being used or is only a minor part of the work in question being used?

Affect on Potential Market or Value of Work.Is there a likelihood of harm from the intended use?  Copyright owners do not have to prove actual damages, only potential damages.

Fair Use Guidelines

Applying the tests identified for "fair use" can bring up complex issues.  In general, the following guidelines provide a workable framework of analysis to help understand if a given use if within the rights of "fair use."  Here are some basic guidelines for teacher copies, classroom copies, libraries, print guidelines, video tapes and AV materials, off-air taping, music, software, the Internet, and Multimedia.

Teacher Copies.  Single copies for teacher research, preparation for teaching, or teaching is "fair use" when it concerns a:

• >Single chapter in a book.
• Single copy of an article.
• Single copy of a short story, poem, or essay.
• Single copy of a picture, cartoon, drawing, diagram, graph, or char.

Classroom Copies.  Copies for classroom use should be spontaneous and at the inspiration of an individual teacher.  This spontaneity precludes taking the time to request permission.  The material used should be brief.  The cumulative effect of the copies should:

• Only for 1 course and not repeated from term to term.
• Not include more than 1 by any author, three from any collective work/periodical volume.
• Not exceed 9 instances during a course.
• Classroom copies are not to be used to create compilations of the works of others without each copyright holder's permission.

Libraries.  Copies are permitted for interlibrary loan, preservation, replacement of lost or damaged items.  Articles places on reserve are not covered by copyrights, but there are ALA guidelines.

Print Guidelines.  The following apply to what portion of a work can be copied in multiples:

• Poetry.  Complete poem under 250 words, except not more than 250 words o longer poem.
• Prose.  Complete work if under 2,500 words, excerpt of 1,000 words or 10% (whichever is less)
• Periodicals.  No more than 3 items per volume or 9 items copied in multiples per course per tem (except news articles).
• Illustration.  One per book or periodical (no right to modify).

• Material must be presented by instructors or pupils in a particular class AND
• Occur in a face-to-face teaching directly related to the lesson being covered at the time AND
• Take place in a classroom, or other instructional setting in a nonprofit educational institution AND
• Consist of a copy of the work that was legally acquired.

• Taping must be requested from a specific instructor.
• Not more than once.
• Only for instructional purposes.
• Cannot be modified or edited.

• Multiple copies of excerpts of work, up to 10% of the total work
• A single copy of an entire performable unit that is out of print or unavailable sole for he purpose of scholarly research or preparation to teach.
• A single copy of recordings of performances by students for evaluation or rehearsal purposes.
• Single copy of an legally owned sound recording for constructing aural exercises or examinations.
• Printed copies that have been purchased may be edited or simplified, provided (1).  the fundamental character of the work is not distorted, (2).  Lyrics are not altered, (3).  No lyrics are added. 

Permission to use music can be sought through ASCAP or BMI

Software.  When software is purchased, users are buying license to use that copyrighted material.  Purchasers are allowed one archival copy.  Users are responsible for reading and understanding license agreements.  Different licenses have different rights.  Common types of licenses include:

• Single users license
• Site license
• Lab pack

• Network license

• Freeware
• Shareware

The Internet.  Courts have yet to make significant decisions on these issues.  Users are advised to observe the following guidelines:

• Email messages are owned by the author.  Because they are not published, "fair use" probably does not apply.  Permission should be obtained to distribute.
• Newsgroups and discussion lists can probably be posted in part or for non-profit use.
• Web pages use should follow the 4 "fair use" tests.
• Source/software coding should be considered as copyrighted materials.

Multimedia.  Guidelines for work that includes parts of copyrighted materials in different format involves more complex issues because different formats have different copyrights.  Modifying media is not "fair-use."  In general, fair-use guidelines limits the types and amounts of material that may be used and how the resulting multimedia may be used and retained.  For more information, see Fair Use Guidelines for Educational Multimedia on my resource page.

Copyright Resources

Copyright Basics

US Copyright Office

10 Big Myths About Copyrights

Copyrights & Wrongs

R.I.G.H.T.S.  Redistribution of Graphics Has to Stop

Trademarks & Copyrights

What Are Patents, Trademarks, Servicemarks, and Copyrights?

Fair Use

Stanford Copyright & Fair Use Center

Fair Use of Copyrighted Materials

Fair Use of Copyrighted Works:  A Crucial Element in Educating America

Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web

Fair Use Guidelines for Educational Multimedia.

Obtaining Permission

Copyright Clearance Center

Copyright Management Center

US Copyright Office Resources

Getting Permission