Scope and Terms of Copyright
United States copyright law protects original work set in a tangible medium. Let’s take a look at what that means. First of all, what qualifies as original? In fact, the threshold for originality is generally quite low. For example, although the law does not protect a simple index such as a phone book, it would protect such things as a clever reorganization of a published list of phone numbers according to categories. In addition, the artwork used in advertising design would be protected by the law, as originality is commonly found in literary, academic, dramatic, musical, visually artistic, and other intellectual works.
Now let’s consider what is meant by a “tangible medium.” Tangible media include anything from printed pages to Web pages, from books to hard drives. Film and architectural blueprints are included, too.
Copyright law grants exclusive rights to copy, distribute, prepare derivative works from (such as translations), perform, or display the copyrighted work publicly. Under current U.S. law, this exclusive right lasts 70 years plus the life of the author for an individual rights holder, and 95 years for a corporate one.
How does a person or a corporation obtain a copyright? Contrary to what you might think, you don’t obtain a copyright by registering your work—registration only makes it possible to acquire greater awards for damages in a law suit. And you don’t obtain a copyright by attaching a symbol (for example, a ) to your original work. You obtain a copyright through the process of creating original work in a tangible medium—that is sufficient.
The purpose of copyright law is to provide incentive to authors to create new works, while, at the same time, to encourage the introduction of original works into the public domain so that others may use them for their own innovations. Students often first learn about copyright in connection to peer-to-peer networks and file sharing of media on the Internet. But copyright considerations for undergraduate and graduate students extend to academic work as well. Your original work—for example, a research paper or a video that you make for a class project—is copyright protected. By the same token, other people’s work is protected, too, although often with meaningful exceptions that allow you to use it in classroom or academic settings.
The next section looks at exceptions covered under what is referred to as fair use.
An Exception to Copyright Law: Fair Use
Fair use is an exception to copyright law that allows you to quote passages from a book or a journal article and to reproduce at least short segments of songs and movies.
Whether you can use an entire work sometimes depends on the circumstances. For example, according to fair use, you may use an entire work if you are presenting a parody of that work. In addition, you may use an entire work if you are transforming it from one medium to another, let’s say in a montage. Finally, you may use an entire work so long as it is only available in a classroom setting and not on the Internet where its availability might have the effect of lessening the market value of the original.
Until the most recent Copyright Act of 1976, common law, or judicial precedent, defined fair use. The Copyright Act codified it and offered four factors to be taken into case-by-case consideration. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Even so, since the promulgation of this law, case law has introduced other factors that qualify as fair-use exceptions. As mentioned previously, fair use applies even to the entirety of a work if it is presented as a parody of the original. This example, one that “transforms” the work from one type to another, has become the foundation for what is effectively a new factor: transformative effects. Of all of the factors justifying fair use, this one is perhaps the most relevant to information technologies and the Internet. It implies, for example, that even a full reproduction of a photograph can be considered fair use when it appears as a thumbnail sketch on the Internet. The artistic reproduction of a photograph of President Obama has recently become a copyright case that rests on this interpretation, and as mash-ups continue to drive much innovation in sound, video, and graphic arts, the courts will undoubtedly continue to refine the meaning of this common-law factor.
Avoiding Copyright Infringement
Copyright infringement usually revolves around the act of copying, distributing, performing, or making a derivative work from another work you neither own nor have permission or an applicable exception to use. The emphasis of infringement is on the work itself, not its ideas. The key questions to keep in mind are why you are using it (are you submitting it as an academic paper or attempting to make an illegal profit from it?), how much of it you are using (is it the heart of the whole or only an incidental part of it?), and in what context you are using it (have you made it available on a protected academic site or on one open to all?). Citing a work does NOT override infringement.