Educator's Guide to Intellectual Property, Copyright and Plagiarism
Additional Educator's Guides
Educator's Guide to Access *Educator's Guide to Credibility and Web Evaluation
Educator's Guide to Free Speech *Educator's Guide to Privacy *Educator's Guide to Commercialism
Educator's Guide to Computer Crime/Technology Misuse
Copyright Law Definition/Clarification Copyrights cover expressions of ideas. ¡°Original works of authorship fixed in any tangible medium of expression¡¦¡± are covered by copyright protection. (17USC Section 102(a)) As soon as something is written in a relatively permanent way, it is protected. The permanence of the medium in which it is written, is of course, a bit subjective. Some examples of what would be covered are the following: pen to paper writing, typed writing, painting on canvas, and photographs. Some examples of what probably or may not be protected are the following: sky writing, moldable (and undrying) clay sculpture, ice sculpture, and writing in the sand. Copyrights do not cover ideas or titles. Patents and trade secrets, on the other hand, cover ideas. Trademarks cover titles. Although a book¡¯s contents may have unique ideas and its title may be unique, they are ideas and are not covered by copyright protection. Someone else could use the same title of a copyrighted book for completely different copyrighted written work if there is no trademark on that title. Someone else could use the ideas from the book that were not protected by a trade secret or a patent, then that other person could use those ideas to write a separate copyrighted piece. If the author could limit others from using the ideas from their copyrighted work, there would be no reviews or furtherance of ideas. It¡¯s also hard to prove that someone advanced someone else¡¯s ideas based on what they learned from copyrighted material. Understanding the Fair Use Factors The following factors of fair use come directly from the copyright statute section 107 but include detailed explanations and practical applications:
This distinction can be summarized as the difference between ¡°commercial as opposed to non profit¡± (Blake 2001) A non profit purpose is typically a critique, a parody, or some other reference to the work that does not involve money. This section would be violated if it is directly copied or a strongly recognizable portion is used by another in order to make money. Another strong test is if none of that profit goes back to the initial creator; he or she may actually lose money due to this infringement.
This applies specifically to the original intention of the work¡¯s purpose for the general public or the creator¡¯s licensing intent. If the original owner was intending to make money off of the work then the fair usage is relatively narrow. This may be the case in original artwork of an artist or a novel that took someone a long time to write. If the original owner intended for the work to serve the purpose of dissemination of information or general enjoyment by the public then fair use by the general public is more opened. An example would be of an informational pamphlet on how to prevent spreading or catching a cold virus. In such a situation, the original owner may want to spread the information more openly. Another category that would fall under ¡°nature¡± of the work is in licensed copyrighted materials. An example is of teaching reproducible booklets. Typically these booklets are sold as teacher resources to be used by the original purchaser to copy for information or study aids to facilitate student learning. Usually this is included in the front cover of such reproducible booklets.
This part is the most difficult to determine, and with many of the cases that come before the courts, would most likely be determined on a case to case basis. One example of unfair use would be to copy an entire song from a CD. (Blake 2001) This would not be fair use because an entire song is pretty much like a separate entity that has significance by itself, separate from the entire CD. Someone who copies that song (especially a popular single) would be expected to make money or take free benefit from it. A second example would be photocopying an entire chapter out of a book. (Blake 2001) Even if the chapter is short in comparison, it is a large identifying part of that book and should not be copied and used without permission. This can be enforced both qualitatively and quantitatively. The courts have shown vagueness in this matter. Specifically the courts have stated that if there is a ¡°substantial percentage¡± then the work is not being used fairly. (Jennings 2002) Additionally, the courts have stated that anything that is copied that is ¡°essentially at the heart¡± of the original violates fair use. (Jennings 2002) In the end, all of this has to be determined on a case by case basis, especially when referring to internet fair use.
If someone besides the original copyright holder uses the work or refers to the work in a way that impedes on its productivity or potential to be profitable or well-noticed, then fair use is violated. This may be the case where someone uses the original work for his/her own and then causes the original to perform poorly in the market or even lose money. Obtaining Licensing If you would like to use a copyrighted work in a way that would violate the fair use statute, you may seek permission or licensing. If approved, you may be provided with full or partial use of the original copyrighted work. However, there are a few important considerations. First, if someone puts something on the web, permission may still be needed, depending on the type of work. (Regents¡¦2006) Often times, teachers believe that anything on the web is for free usage. Second the author may deny permission (either by not responding or denying). (Regents¡¦2006) Even if it is granted, it¡¯s important the person requesting permission understands the limits of his/her usage; it is probably not unlimited. (Regents¡¦2006) Finally, be sure the correct owner is consulted (not the webmaster or publisher) and that they will probably request a fee, varying depending on the usage you request. (Regents¡¦2006) Correction to ¡°Rights of Copyright Holders¡± In the original white papers, the fourth right was absent (although it existed since 1976) and reads as follows:
In addition, there was an eighth subject area that became a new right for copyright holders to protect, added to the 102nd statute of the copyright law in 1990. That new category is ¡°architectural work¡±. This typically includes internal and external design and facade of buildings. In a sense, they are being categorized as artwork in the blueprints and artistic design or layout. This applies to buildings built after 1990, so copying the design of something built after 1990 is most likely protected by copyright law. Software In almost all software that consumers or companies purchase and use, the user must agree to what is called ¡°terms of use¡± before using the software. In the case of software, the terms of use are not found by the purchaser until he/she opens the shrink-wrap and begins to use the software. In the case of ProCD Inc v. Zeidenberg 1996 7th Circuit, the issue that came to a federal appellate court was whether or not consumers must be tied to these terms even though they had to use the software first before knowing the terms of agreement. (ProCD Inc¡¦Background 1996) In almost every case, when a consumer purchases shrink-wrapped software, it is non-returnable because it could have easily been loaded to the computer and then returned.? This court decided that consumers of software automatically consent to the user agreement upon opening the shrink-wrap even though the user agreement cannot be found until it is actually used. (ProCd Inc v. Zeidenberg 1996 7th Circuit) This means that the terms are binding upon immediate use. Therefore, consumers must be more aware of what they contain. Often consumers simply check the ¡°comply¡± box due to the length. This decision shows the seriousness of the 7th appellate circuit to uphold the information even though consent is assumed after purchase without prior knowledge of its contents. The decision; however, was made in the 7th appellate circuit which roughly covers some Midwestern states. Since this issue did not reach the Supreme Court as of June 2006, the ruling does not apply nationally. Obtaining Copyright Registering Registering is not a necessary step to take in order to receive a copyright. However, there are some legal advantages to registering which allows for greater protection, prevents against copying, and entitles original owner to greater damages upon proven infringement. The U.S. Copyright office lists several advantages. Registering a copyright entitles the owner to greater monetary damages, including attorney fees upon a favorable court decision favoring the owner. (U.S. Copyright Office 2004) Also, without registering, a copyright holder is unable to pursue legal claims of infringement. (U.S. Copyright Office 2004) The Copyright Symbol The symbol O may be attached to any ¡°Original works of authorship fixed in any tangible medium of expression¡¦¡±. (17USC Section 401 and 102(a)) A copyrighted work does not have to be registered in order for an owner to attach the symbol. A date should always be included with the copyright symbol so that others know that the work is still protected by fair use policies, due to the time of copyright. Length of Protection The length of copyright protection has been extended at several points. Most recently, on October 27, 1998, the length of extension reached the longest time period of extension of copyrights in U.S. history. Two parts are particularly important in this new extension. These are two parts which apply to works after January 1, 1978. (a) In General. ? Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author's death (17USC Section 302) (c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. ? In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first¡¦ (17USC Section 302) Blake, Brandon A. (2001) Blake & Wang P.A. Fair Use and its Limitations. http://www.optimalegal.com/ys-tmpl/fairuseanditslimitations/ Copyright Law of the United States http://www.copyright.gov/title17/ Jennings, Christopher Alan (2002) ¡°Fair Use and the Internet.¡± Report to Congress.? http://www.fas.org/irp/crs/RL31423.pdf Regents of University of Michigan (2006) Copyright: Introduction to Fair Use http://www.lib.umich.edu/taubman/copyright.html ProCD Inc v. Zeidenberg (1996) ?7th Circuit http://www.bitlaw.com/source/cases/copyright/procd.html U.S. Copyright Office-Copyright Basics (2004)? http://www.copyright.gov/circs/circ1.html#cr |
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