Learn about the foundations of U.S. copyright law and how they apply in a higher education setting, including the concept of fair use and the TEACH Act. <\/p>\n\n\n\n
Derived from specific language in the Constitution, U.S. copyright law (found in Title 17 of the U.S. Code) exists to foster creativity and spur the distribution of new and original works. It does this by protecting original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. This protection covers both published and unpublished works, regardless of the nationality or domicile of the author. The law grants copyright holders, such as publishers, writers, and other types of creators, the exclusive right to reproduce, perform, distribute, translate, and publicly display their original works. The law balances these rights with several exceptions and limitations, such as fair use. Simply stated, this means that unless the situation meets one of the exceptions outlined in the Copyright Act, users should get the copyright holder\u2019s explicit permission to lawfully reuse, reproduce, or redistribute a copyright-protected work\u2014even if that takes place within the walls of one institution.<\/p>\n\n\n\n
In the U.S., copyright protection automatically exists from the moment an original work is fixed in a tangible form of expression. A work is \u201coriginal\u201d if it is created independently (i.e., not copied from elsewhere) and sufficiently creative. A work is \u201cfixed\u201d when it is expressed in a sufficiently permanent medium so that it can be perceived, reproduced, or communicated for more than a short time, like when you write it down or record it (even electronically).<\/p>\n\n\n\n
Because it\u2019s automatic upon fixation, copyright owners do not need to take any other steps like filing for registration with the U.S. Copyright Office or using a copyright notice (the familiar \u00a9 symbol and information) to protect their works.<\/p>\n\n\n\n
Nevertheless, it is a good idea to register your works with U.S. Copyright Office and to use a copyright notice. First, registration is very beneficial. Registering your works with the U.S. Copyright Office provides evidence that everything on the registration certificate is accurate (such as the owner and date of creation). Additionally, if the work is a U.S. work, you have to register it with the Copyright Office before you can bring a lawsuit for infringement. Also, importantly, if you ever need to seek statutory damages or attorney fees in an infringement case, you must have registered your work (all works\u2014not just U.S. works) with the Copyright Office within a certain time frame. Second, using a copyright notice is useful because it lets people know that you are asserting your copyright claim to the work. Copyright notices should include three elements: (1) the symbol \u00a9 (the letter C in a circle), or the word “Copyright” or the abbreviation “Copr.”; (2) the year when the work was first created; and (3) the name of the holder of the copyright. An example is \u201c\u00a9 2021 Jane Doe.\u201d<\/p>\n\n\n\n
Only the author, or those deriving their rights through the author, can rightfully claim copyright. In the case of works made for hire, the employer\u2014not the writer\u2014is considered the author.<\/p>\n\n\n\n
Difference Between Ownership of Copyright and Ownership of Physical Items Including Copyright Protected Materials<\/strong> To use copyrighted materials lawfully, you should get permission from the applicable copyright holder or a copyright licensing agent or confirm that the use isn\u2019t subject to an exception or limitation like the first sale doctrine, mentioned below. When an organization is a licensee of one of CCC\u2019s annual copyright licenses, the legal or library team may be able to verify coverage. For non-licensees, individual permissions\u2014also known as pay-per-use\u2014can also be requested on CCC Marketplace.<\/p>\n\n\n\n It is important to note that, even though you don\u2019t own the copyright just by obtaining a physical object, copyright\u2019s First Sale Doctrine<\/a> (Section 109 of the U.S. Copyright Act) allows owners of a physical copy of a copyright-protected work to lend, resell, dispose, etc., of the physical item.<\/p>\n\n\n\n Duration of Copyright<\/strong> For works made for hire, anonymous works, and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), however, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.<\/p>\n\n\n\n For works created, published, or registered before January 1, 1978, or for more detailed information, you may wish to refer to the public domain section of this guide, below, or read the U.S. Copyright Office\u2019s Circular 6a (\u201cRenewal of Copyright\u201d), Circular 15a (\u201cDuration of Copyright\u201d), and Circular 15t (\u201cExtension of Copyright Terms\u201d), all available at the U.S. Copyright Office\u2019s website, www.copyright.gov\/circs<\/a>.<\/p>\n\n\n\n Public Domain<\/strong> U.S. copyright law\u2019s protections, however, do not apply to works in the public domain. The public domain does not refer to all works that are publicly available. Instead, the public domain comprises all works that are either no longer protected by copyright or never were.<\/p>\n\n\n\n Public domain materials generally fall into one of categories:<\/strong><\/p>\n\n\n\n Works may also be “dedicated” (i.e., donated) to the public domain but it is usually hard to prove that dedication has occurred.<\/p>\n\n\n\n It is also recommended that people consider other forms of possible legal protection that may be in place, such as trademark or patent protection, before reusing third-party content.<\/p>\n\n\n\n Penalties for Copyright Infringement<\/strong> All claims alleging violations of the Copyright Act must be brought in federal, not state, court. There is also an alternative, voluntary tribunal in the U.S. Copyright Office<\/a> in which some so-called small copyright claims can be heard (those claims must have a monetary value of $30,000 or less).<\/p>\n\n\n\n You may also be criminally liable if you willfully copy a work for profit or financial gain, or if the copied work has a value of more than $1,000. In these cases, penalties can include a one-year jail sentence plus fines. If the value is more than $2,500, you may be sentenced to five years in jail plus fines. Criminal penalties generally apply to large-scale commercial piracy.<\/p>\n\n\n\n “International” Copyright<\/strong> As of October 2020, 179 countries, including the United States, belong to the Berne Convention.<\/p>\n\n\n\n The Berne Convention further states that the copyright protections are based upon the laws of the country where the misuse of the copyright-protected work takes place (rather than the country where the work originated). For example, if you photocopy an article in the U.S., then U.S. copyright law applies to determine whether that copy was lawful. Similarly, if you digitize an image in the UK, the copyright laws of the UK apply to determine whether that digitized use is lawful. There are grey areas, however, when it comes to the online usage of copyright-protected content. For example, if an article is uploaded in the U.S. and then viewed on a website in Australia, where is the “copying” taking place\u2014and is more than one “copy” being made? Courts have yet to provide definitive answers as to what country’s laws should be used to determine online copyright infringement in this case. To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of “when in doubt, obtain permission” in these situations.<\/p>\n\n\n\n Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works, by their nature, do not require permission from the copyright holder or its agent.<\/p>\n\n\n\n The Copyright Act does not spell out the specific types of content reproduction that qualify as fair use. It offers an outline as to how to analyze whether fair use may apply in a particular situation. As a result, the Copyright Act leaves it up to the individual to determine, based upon the factors in Section 107 of the Act, whether fair use applies in each particular circumstance (and then leaves it up to a judge to make the final determination in a case if the copyright holder files suit for infringement). To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of “when in doubt, obtain permission.”<\/p>\n\n\n\n Determining Fair Use<\/strong> U.S. copyright law specifies four factors for use in fair uses analyses. No one factor alone dictates whether a particular use is indeed fair use. Consideration of all four factors in Section 107 of the Copyright Act<\/a>, weighing each separately and then all together, is needed to help determine whether or not copyright permission is required.<\/p>\n\n\n\n The four factors listed in Section 107 are described below.<\/p>\n\n\n\n While these four factors are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a simple formula; therefore, any fair use analysis must be conducted on a case-by-case basis considering each of the four factors separately, and then weighing them together, in light of the circumstances of the situation at hand.<\/p>\n\n\n\n Examples of fair use:<\/strong><\/p>\n\n\n\n Section 108<\/a> of the Copyright Act provides specific exceptions for libraries and archives in which they may make reproductions without obtaining permission from, or providing compensation to, the copyright holder.<\/p>\n\n\n\n To qualify for the exception, the library or archive must:<\/strong><\/p>\n\n\n\n In these instances, reproduction is meant to be isolated and unrelated; it should not result in the related or concerted reproduction of the same materials over a period of time. Neither should reproduction be systematic and serve as a substitute for a subscription to or purchase of the original work.<\/p>\n\n\n\n Reproduction under the exception may be done for the purpose of:<\/strong><\/p>\n\n\n\n Roles, Rules, and Responsibilities for Academic Institutions<\/strong><\/p>\n\n\n\n Enacted in 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act<\/strong> was the product of discussion and negotiation among academic institutions, publishers, library organizations, and Congress. It offered many improvements over previous regulations, specifically by amending sections 110(2) and 112(f) of the U.S. Copyright Act.<\/p>\n\n\n\n A Brief Guide to TEACH<\/strong> The TEACH Act facilitates and enables the performance and display of copyrighted materials for distance education by accredited, non-profit educational institutions (and some government entities) that meet the Act’s qualifying requirements. Its primary purpose is to balance the needs of distance learners and educators with the rights of copyright holders. TEACH applies to distance education that includes the participation of any enrolled student, on or off campus.<\/p>\n\n\n\n Under TEACH:<\/strong><\/p>\n\n\n\n TEACH Requirements<\/strong> In order for the use of copyrighted materials in distance education to qualify for the TEACH exemptions, the following criteria must be met:<\/p>\n\n\n\n What TEACH Does Not Allow It is also important to note that TEACH does not supersede fair use or existing digital license agreements.<\/p>\n\n\n\n Ultimately, it is up to each academic institution to decide whether to take advantage of the copyright exemptions under TEACH. This decision should consider both the extent of the institution’s distance-education programs and its ability to meet the education, compliance, and technological requirements of TEACH.<\/p>\n\n\n\n The Digital Millennium Copyright Act (DMCA)<\/a> was enacted into law in 1998 to amend U.S. copyright law to address some of the issues unique to copyright in the digital environment. In order to help copyright holders, protect their digital content while also encouraging online models, the updated law contains provisions providing internet service providers (ISPs) with a safe harbor against certain claims of infringement if they implement a notice and takedown system, forbidding circumvention of digital protections, and protecting copyright management information.<\/p>\n\n\n\n
Physical ownership of an item such as a book, painting, manuscript, or CD is not the same as owning the copyright to the work embodied in that item. Why? Because the transfer of the physical copy does not transfer the copyright holder’s rights to the work. This means that, if you obtain a physical copy of something like a book, you have not obtained the right to reproduce, publicly display, or perform it, or otherwise exercise one of the copyright owner\u2019s exclusive rights. Even including an attribution on a copy of a work that was copied by an individual (for example, putting the author’s name on it) does not eliminate the need to obtain the copyright holder’s consent for further uses that implicate one of the holder\u2019s exclusive rights.<\/p>\n\n\n\n
The term of copyright protection depends upon the date of creation or publication. A work created on or after January 1, 1978, is ordinarily protected by copyright from the moment of its creation until 70 years after the author’s death.<\/p>\n\n\n\n
All original works created since 1989, except those created by the U.S. federal government, are presumptively protected by U.S. copyright law. As a result, the chances are high that many of the materials of greatest interest to students and faculty are protected by copyright.<\/p>\n\n\n\n\n
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By reproducing, republishing, or redistributing the work of a copyright holder without permission, you may be violating that holder\u2019s rights under the Copyright Act. If the copyright holder has registered the work with the U.S. Copyright Office prior to filing suit for infringement, the copyright holder may sue for compensation as well as for an injunction to cease further infringement. Court-ordered compensation may include attorneys\u2019 fees and damages such as (i) the plaintiff\u2019s lost profits or the defendant\u2019s ill-gotten profits from the infringing activity or (ii) statutory damages ranging from $250 to $30,000 per infringing act (or up to $150,000 per infringing act if the court determines that the infringement was willful).<\/p>\n\n\n\n
There is no such thing as an “international” copyright that automatically protects a work throughout the world. However, the Berne Convention<\/a>, the principal international copyright treaty, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them.<\/p>\n\n\n\nWhat Is Protected by Copyright?<\/h2>\n\n\n\n
Copyright-Protected<\/h3>\n\n\n\n
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Not Copyright-Protected<\/h3>\n\n\n\n
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Understanding Fair Use<\/h2>\n\n\n\n
Fair use is very fact-specific and often applies to commentary, parody, news reporting, research, and education. However, not all uses in an academic context are automatically considered fair use, and not all uses in a business context are automatically not<\/em> fair use.<\/strong><\/p>\n\n\n\n\n
In evaluating the purpose and character of the use, the history of the statute tends to favor non-profit educational uses over commercial ones. However, there are instances in which commercial uses would qualify as fair use and other instances where educational uses would not meet the criteria.
Courts also favor uses that yield a “transformational” result. Thus, extensive quoting from a work the purpose of which is to produce a critical analysis of that work is more likely a fair use. In contrast, “slavish copying” that merely reproduces a copyrighted work (and thereby simply replaces paid-for copies of the work) is less likely a fair use.
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This factor focuses on the work allegedly being infringed. The legislative history states that there is a difference between reproducing a short news note and reproducing a full musical score. Uses of factual works such as scientific articles are more likely to be found fair uses than uses of creative works such as novels; however, any distinction between \u201cfactual\u201d and \u201ccreative\u201d is vague enough that many courts give this factor less weight.
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This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. Generally, the larger the amount used, the less likely a court will find the use to be a fair use. \u201cAmount and substantiality\u201d is also a qualitative test; that is, even though one takes only a small portion of a work, it still may be too much if what is taken is the “heart of the work.”
Click here<\/a> for a U.S. Supreme Court example of a use of “the heart of the work” (but still less than 1\/3 of 1 percent of the total work) being found to not be a fair use.<\/li>\n<\/ol>\n\n\n\n\n
This factor considers whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. It looks at whether the nature of the use competes with or diminishes the potential market for the use that the owner is already exploiting or can reasonably be expected soon to exploit. Even if the immediate loss is not substantial, courts have found that, should the loss become great if the practice were to become widespread, then this factor favors the copyright holder.<\/li>\n<\/ol>\n\n\n\n\n
Exceptions for Libraries and Archives<\/h2>\n\n\n\n
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The TEACH Act<\/h2>\n\n\n\n
Although copyright law generally treats digital and non-digital copyright-protected works in a similar manner, special digital uses, such as online distance learning and learning management systems, require special attention. Some of the special copyright requirements of online distance learning are specifically addressed by the TEACH Act.<\/p>\n\n\n\n\n
In exchange for unprecedented access to copyright-protected material for distance education, TEACH requires that the academic institution meet specific requirements for copyright compliance and education.<\/p>\n\n\n\n\n
<\/strong>The exemptions under TEACH specifically do not<\/em> extend to:<\/p>\n\n\n\n\n
The Digital Millennium Copyright Act <\/h2>\n\n\n\n