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Faculty Guide to Copyright

Copyright: "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." - from Article I, Section 8 U.S. Constitution

 

Articles
Distance Education

General

Basics
Intellectual Property Rights Intellectual property and copyright are partners; copyright automatically protects intellectual property. Under the 1976 Copyright Law-which is our current mandate with some updates-the purpose was to encourage and stimulate as many creative and scientific works as possible as an overall 'good' for society. The economic reward was the exclusive rights to the creative work for a limited period of time. Section 106 of the 1976 U.S. Copyright Act grants the copyright owner exclusive rights in the following areas:

  • Reproduction-The right to reproduce the work.
  • Adaptation-The right to create and produce derivative works based on the original piece.
  • Distribution-The right to distribute copies.
  • Performance-The right to perform the work publicly.
  • Display-The right to display and transmit the work publicly.

The limiting parts in these granted rights depends on various factors, such as when the work was created, published, or if there is existing copyright. There is no longer a requirement to apply for copyright registration, but it is in the best interests of the creator who wants full protection of the law against illegal infringement.

The Internet has been characterized as the most significant threat to copyright since the 1976 law was enacted. The Internet is a vast storehouse of information containing varying options of use: free or public domain, by permission or not, by citing, or by Fair Use. Most everything on the Net is protected by copyright: novels, articles, screenplays, graphics, pictures, photographs, software, news articles, databases, and e-mail. Copyright applies only to "original works of authorship" that are "fixed in any tangible medium of expression." Exceptions to this are ideas, known facts and government information.

Fair Use:
The law broadly defines copyright protection and then provides a number of exceptions to the copyright owners' exclusive rights. The best known exception is 'fair use.' There are four factors to be considered in a 'fair use' analysis in making a determination of what constitutes 'fair use':

  • Purpose and Character of Use-Is it of a commercial nature or for nonprofit educational purposes?
  • Nature of Copyrighted Work-Is this worthy of copyright protection?
  • Relative Amount-How much and of what quality or importance was copied?
  • Effect Upon Potential Market-What is the extent of harm to the market of the original work caused by the infringement?

The last factor is the one most often cited as the most important factor in determining 'fair use'-and that is because it involves money. Has it harmed or weakened the marketability of the work? The legal boundary between what is considered 'fair use' and infringement is often blurred and subjective.

Public Domain:
Lolly Gasaway's table of copyright expiration

Identifying the Public Domain is essential, as the formality of registering, posting a notice or renewal (prior to 1989) are no longer required to protect creative works.

Works published / unpublished before 1978.
If the work was published originally in the U.S. before 1978 without a formal copyright notice, it lacks copyright protection. Between 1978 and 1989 a copyright owner could "fix" a missing notice. You can only rely on the lack of a notice for works dating before 1978. If the work is unpublished it is protected even without copyright registration. Foreign works before 1978 have their own protecting laws-see "Circular 38b" at the Copyright Office website. Also at the Copyright Office site you can search and access records of copyright registrations and renewals filed since 1978

Works created after December 31, 1977
The lack of a copyright notice or registration is inconclusive of the work's protected status. Proceed as though the work is protected until you learn otherwise from the author or publisher. More than likely, this means that almost any creative work in paper, 3-dimensional or electronic form is protected by copyright.

Web Sites - comprehensive

Copyright Law

Digital Millenium Copyright Act

Distance Education

Full-text of copyright law

TEACH Act

Copyright History

Overview of U.S. copyright law from 1790-1996 ( Association of Research Libraries) - also contains summaries from major court cases of interest to academia

Patents and Trademarks
Definitions:
Patent - is a grant of a property right to an invention by the government to the inventor thru the Patent and Trademark Office-maximum grant is 20 years. The inventor holds the right to exclude others from making or using, offering for sale or importing the invention.

Trademark - is concerned with a name, word, symbol, or type of device that indicates a source of goods or services and that distinguishes them from others' goods and services. A trademark is not a trade name*
Searching Patents & Trademarks

Maintained by: Marianne Buehler