Copyright Basics

Understanding the basics about how copyright works and about some of the exceptions to those rights will help you ensure that your creations are used in the way you choose and that you respect others’ rights to control how their creations are used.

For more in-depth exploration of copyright issues, consult the following sites:

The University of Wisconsin System General Counsel website also includes a summary page of copyright law.

Exclusive Rights of Copyright

The exclusive rights are outlined in Sec. 106 of the U.S. copyright law as follows:

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:

  • to reproduce the copyrighted work in copies of phonorecords;
  • to prepare derivative works based upon the copyrighted work;
  • to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;in case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  • in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  • in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

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).

“Automatic” Copyright

Once an expression is fixed in a tangible medium, it is afforded copyright protection immediately. 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 on the published work. The Berne Convention Implementation Act of 1988 (that went into effect on March 1, 1989) amended the Copyright Act of 1976 by eliminating the registration and notice requirement.

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.

This previous information is from: Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, pp. 2-3 and Creative Commons Deed License 2004 American Library Association

Public Domain & Copyright Duration

Some works can never be protected by copyright. These works or elements of works are in 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 a work.” Sec. 102 (b). However, patent or trademark law may protect some of these works.

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. Once materials are in the public domain, anyone can exercise a right of copyright without the prior permission of the copyright holder.

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. 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.

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. Many copyright duration reference guides are available to keep track of the majority of possibilities (Copyright Term and the Public Domain in the United States , from Cornell University).

This previous information is from: Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, pp. 3, 6, 11 and Creative Commons Deed License 2004 American Library Association.

Copyright Exemptions

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 (Sec. 109) and reproductions for libraries (Sec. 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.

Fair Use

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. Individuals will disagree about whether a situation is fair, even when looking at the same facts.

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:

  • 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 substantial quality 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

These four factors reflect early judicial efforts to balance the application of copyright law in ways that simultaneously allow uses of copyrighted works to serve the greater society while safeguarding the exclusive rights of copyright holders.

The U.S. Supreme Court has made clear that no “bright-line rules” determine whether a use is fair use. [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)] That determination rests in the four factors and how you apply them to your facts and circumstances.

One useful way to begin any fair-use analysis is to use the Checklist for Fair Use developed by Kenneth D. Crews, available from the Columbia University Copyright Advisory Office.

This previous information is from: Complete Copyright: An Everyday Guide for Librarians, by Carrie Russell, pp. 3, 6, 11 and Creative Commons Deed License 2004 American Library Association.