Copyright Primer

What Is Eligible for Copyright Protection?

To be copyrightable, a work must be both:

Works include:

Originality

Originality implies creativity. For example, the content and the layout of most websites are copyrightable. On the other hand, a digitizer of a 19th century art work is less likely to be able to claim copyright, as the digitized format is probably true to the original and so cannot claim originality. So too, a publisher of an anthology of works can less likely claim copyright of previously published content. The footnotes, prefatory remarks, and the arrangement of the anthology are all copyrightable, but any borrowed content may well be copyrighted by someone else, or may be in the public domain. If copyrighted, permission must be obtained from all copyright owners.

Fixed in a Tangible Medium

Fixation can include everything from comments scribbled on a piece of paper, to emails, to blogs, to recorded music, to videotaped plays and paintings and sculpture. For a work to be considered "fixed," it needs to be perceivable directly by the naked eye or by a machine or device such as a computer or projector.

For additional reading on this subject, consult Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, by Kenneth D. Crews. Available in Trexler Library, call # Ready Reference 346.730482 C927c 2006

When Do Works Pass into the Public Domain or Are Otherwise Unprotected?

Consult this chart from Cornell University, Copyright Term and the Public Domain. Be careful to distinguish between works published in the U.S. and those published abroad. It should never be assumed that works have passed into the public domain because the copyright appears to have expired. Some states have recognized the rights of authors even after copyrights have expired.

For additional detail about when works pass into the public domain, see the book The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More, by Stephen Fishman, available at Trexler Library call # Ready Reference 346.0482 F537p.

Additionally, copyright protection is not generally afforded to:

How Do I Determine If My Use Is a Fair Use?

Books and Journals

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

Videos

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

Audio

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

Images

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

Multimedia Projects (created by you or your students)

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

Software

For more guidance on conducting a fair use analysis, consult this work: Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, by Kenneth Crews, available in Trexler Library at call # 346.730482 C927c 2006.

What is the "Good Faith Defense"?

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use."

 

Linking to a Fair Use Rationale

One way to highlight a fair use on the web is to link from the bottom of the page where an image or video has been used to a fair use rationale. Here is an example: "Copyright Sony Corporation Entertainment. Fair Use Rationale."

What is the TEACH Act?

The TEACH Act is another exception to copyright that extends certain privileges to the digital learning environment with password protection. Specifically, the law allows for “the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session.”

Note the distinction between nondramatic works and “other work.” The Act permits the performance of nondramatic literary and musical work, but other works (dramatic) only in reasonable and limited portions.

As for displays (of, for example, textual and graphic works), works can be displayed in an amount comparable to that shown in a live classroom session.