PLAGIARISM & COPYRIGHT
EXCLUSIVE RIGHTS OF COPYRIGHT
The founding fathers believed that authors and inventors would be more likely to create new works if they were given an incentive. Congress established a set of exclusive rights that gave copyright holders the sole right to reproduce and market their works to the public for “limited times.” During the term of copyright, copyright holders would have no competitors in the market for their particular copyrighted works. Initially, the exclusive rights pertained only to the rights of reproduction and distribution, but over the years, Congress has created additional rights.
The exclusive rights are outlined in §106 of the U.S copyright law:
Subject to section 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
Let’s take a photograph as an example. The copyright holder has the right to make prints from the original negative and to sell or give away those photos. In other words, the copyright holder has the exclusive right to market the work. The copyright holder also has the right to create a derivative work from the original—for example, a set of greeting cards that include the photograph. In addition, the copyright holder could also display the photo publicly, perhaps at a photography exhibition.
If a person other than the copyright holder uses one of the exclusive rights without the authorization of the copyright holder, that person has infringed copyright (unless fair use or another exemption applies).
Originality and Fixation
An expression must be original to be copyrighted. It must not be copy of another person’s expression. An alphabetical list of names is not protected because it is not considered original enough.
An expression also must be fixed in a tangible medium. Other people must be able to physically perceive the expression, by reading the expression in a book or hearing it on a CD.
Once an expression is fixed in a tangible medium, it is afforded copyright protection immediately. If you doodle during a staff meeting your doodles are copyrighted. If you create a Web page and publish it on the World Wide Web, it is copyrighted. If you shoot video of your friend’s wedding, the videotape is copyrighted.
In the past, to gain copyright protection for a work, it had to be registered with the U.S Copyright Office and/or contain a copyright notice
© 1999 Joe Creative
on the published work. The Berne Convention Implementation Act of 1988 (which went into effect on March 1, 1989) amended the Copyright Act of 1976 by eliminating the registration and notice requirement. This action was taken so U.S. copyright law would conform to the Berne Convention (an international copyright policy-making body). Many countries do not require ‘any formality” to gain copyright protection.
Since copyright is automatic, copyright is the rule rather than the exception. The creator or author must do something in order not to have copyright protection. She can put a notice on her work saying, “This material is not protected by copyright” or “I assert as the creator of this work that this work be recognized as public domain material.” If the creator does not take action to the contrary, all works she creates are automatically protected. Thus, materials are copyright protected, instantly.
Some works can never be protected by copyright. These works or elements of works are the public domain. They include “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.“ [§ 102 (b)]. However, patent or trademark law may protect some of these works.
Copyright does not protect ideas, but it does protect expression. The idea of a story— “boy meets girl”— cannot be protected by copyright, but a “boy meets girl” story expressed in an original way can be protected.
What is The Public Domain?
The public domain is a fundamental tenet of copyright and one way to limit the monopoly control of a copyright holder. Eventually, when the copyright term has expired, works are returned to the public in the public domain. Everyone and no one owns the public domain.
The public domain is information, knowledge, discoveries, and artistic creation never or no longer protected by copyright. Most of us know that facts, for example, are automatically part of the public domain, because facts cannot be copyrighted. The copyright law (§102) goes on to say that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Thus you may have designed a particular way to shelve books in your library, but this process itself cannot be protected by copyright; however, a description, explanation, or illustration of the process could be protected by copyright.
In addition, works of the U.S. government produced by government employees are in the public domain. This category includes works that are created by all agencies of the government such as the Internal Revenue Service, federal legislation, the president’s speeches, and court rulings. The government may choose to hire a private contractor to create a government work. If the contractor retains copyright, that work is protected by copyright. That contractor also could assign the copyright to the U.S. government to hold in the work.
Works created by state governments and their employees may or may not be in the public domain. You will have to check individual state statutes to make a determination, since some states have elected to assert copyright protection.
Once materials are in the public domain, anyone can exercise a right of copyright without the prior permission of the copyright holder. For example, publishing a work from the public domain is not a violation of copyright. In fact, the re-publication of such a work can generate new revenue, not for the original copyright holder but for whoever publishes and markets it.
DURATION OF COPYRIGHT
The copyright term has been extended many times throughout the history of copyright law, and the rules for copyright registration, renewal, and notice have also been amended numerous times. As a result, it can be very difficult to determine whether materials are protected by copyright. To complicate matters, additional modifications of the law have affected the terms of unpublished materials. Furthermore, materials published outside the United States may be treated differently than U.S publications. Bottom line: You need a copyright duration reference guide to keep track of the majority of the possibilities. Many of these guides are available on the Internet. Laura N. Gasaway prepared one of the most popular guides: “When Works Pass into the Public Domain.”
The Sonny Bono Copyright Extension Act
The most recent extension of the copyright term occurred in 1998 with the Sonny Bono Copyright Term Extension Act, which increased the term of copyright for post-1978 works by 20 years. Some say this extension was necessary for the United States to comply with the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), an international treaty organization formed to reconcile the various copyright laws and policies of its member nations. Others argue that the extension was primarily driven by the motion picture industry, in particular the Disney Corporation, because some early Mickey Mouse cartoons were soon to enter the public domain. Other supporters of the Sonny Bono Term Extension Act included the heirs of well-known and still popular creators. For example, some of the music written by George and Ira Gershwin was due to enter the public domain prior to the extension and would end the Gershwin heirs’ ability to collect royalties. The Gershwin heirs can now continue to collect royalties on these works for another twenty years beyond the original “expiration” date.
Copyright Term Complexity (It Can Make You Go Mad!!!)
The 1976 copyright law changed the term from
28 years plus one renewal of an additional 28 years
life of the author plus 50 years.
All works published after 1978 had the life-plus-50 year term.
The Sonny Bono extension act affected post-1978 works by adding an additional 20 years:
life of the author plus 70 years.
But Congress also decided that pre-1978 works should get additional years of protection. Congress changed the second renewal term for pre-1978 from 28 to 67 years, and the act of renewing was no longer required—it happened automatically. These works will enter the public domain 95 years after their publication date. Pre-1978 works were not affected by the Bono extension, since Congress set their term at 95 years and no more.
Clear as mud?
Here are some examples:
The movie Raiders of the Lost Ark was released in 1981. The production company Lucasfilm Ltd. holds its copyright, making the film a corporate work. It will be in the public domain in 2076 (1981 + 95= 2076). Before the Sonny Bono Extension Act, the film would have gone into the public domain in 2056.
Margaret Mitchell published Gone With the Wind in 1936. At that time, copyright protection lasted 28 years. But Gone With the Wind was renewed in 1964, adding an additional 28 years of protection, thus 1992 was its new expiration date. But since Congress increased the renewal term 67 years in 1978, the new expiration date for Gone With the Wind became 2031 (2 first term + 67 second term = 95 years from publication, 1936 + 95 = 2031). The Bono extension of 1998 did not affect the term of Gone With the Wind.
Here’s a similar example:
Miles Davis and Bud Powell registered the song “Budo” in 1956, giving it an initial term of 28 years (1956 + 28 = 1984). But Congress increased the second renewal of 67 years in 1978 (28 + 67 = 95), so “Budo” will expire December 31, 2051 (1956 + 95 years = 2051). The Bono extension had no effect.
Miles Davis published his autobiography in 1989 and claimed copyright protection. At that time, the term was life of the author plus 50 years. Davis died in 1991, so autobiography would have gone into the public domain the end of 2041. With the Sonny bono Copyright Term Extension Act of 1998, the copyright term was extended to life of the author plus 70 years (thus adding 20 years of protection to the Davis autobiography) so Davis’s autobiography will enter the public domain at the end of 2061 (2041 + 20 = 2061).
Exception to the rule: Due to changes made by Congress regarding registration and copyright notice requirements, some materials published after 1923 may be in the public domain. Works published between 1923 and 1978 without a copyright notice are in the public domain. In addition, works published between 1978 and March 1, 1989, without copyright notices, may also be in the public domain if the copyright holders did not register the works with the Copyright Office during the grace period offered by Congress to restore copyright.
Our advice: Use the chart!
The copyright law includes exemptions to copyright that limit the rights of the copyholder. An exemption allows a user to exercise a copyright (like the right to make a copy) without prior permission from the copyright holder under certain conditions. Exemptions like first sale (§109) and reproductions for libraries (§108) allow libraries to lend books, hold book sales, provide interlibrary loan service, preserve and replace materials, and make photocopies for library users. Fair use, the grandest exemption, allows users of copyrighted works the right to exercise without permission some of the rights normally exclusively reserved for the copyright holder. For some, copyright exemptions are considered “excused infringements”—“you infringed but we’ll let it go.” It is more accurate to think of exemptions as “justified actions” or even “user rights,” because without exemptions the law would be unbalanced and overly favor the rights of copyright holders.
The Fair Use Doctrine is arguably the most important limitation on the exclusive rights of the copyright holder. With fair use, one can exercise a copyright without authorization, without signing a license, and without paying a fee. It not only allows but also encourages socially beneficial uses of copyrighted works such as teaching, learning, and scholarship. Without fair use, those beneficial uses—quoting from copyrighted works, providing multiple copies to students in class, creating new knowledge based on previously published knowledge—would be infringements. Fair use is the means for assuring a robust and vigorous exchange of copyrighted information.
Of course, fair use has its problems. There is never an immediate answer to the question, “is this a fair use?” One must make a fair use determination based on sound judgment and the careful consideration of the situation at hand, and that takes some time. Once you make a decision, it will still be a little murky. Folks will disagree about whether a situation is fair, even when looking at the same facts. Those who prefer a “yes” or “no” answer may be troubled by the ambiguous nature of fair use, but fair use cannot be reduced to a checklist. Fair use requires that people think.
But at least the fair use section of the copyright law is short and easy to read:
Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
Excerpted with permission from Carrie Russell, Complete Copyright: An Everyday Guide for Librarians, American Library Association (2004).