University Counsel
Copyright and "Fair Use"
What is a 'copyright' and what rights does it confer?
The term "copyright" actually refers to a bundle of rights created and protected by federal statute. (17 U.S.C. § 101 et.seq). It includes the exclusive rights to reproduce, sell, distribute, perform, display, and license the original work or derivative works. The owner of these rights can give away, sell or license any or all of them on either a temporary or permanent basis.
What can be copyrighted?
Original works "fixed" in a tangible medium (e.g. paper, canvas, magnetic tape, digital recording, etc.), may be copyrighted including:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion picture and other audiovisual works;
- sound recordings; and
- architectural works.
You CANNOT copyright an idea, procedure, process, system, method of operation, concept, principle, or discovery. (However, some of these might be patentable).
How can a copyright in an original work be obtained?
It is essential to understand that copyrights are now automatically conferred by law at the moment the work is "fixed." An infringer may be enjoined from publishing the work even without any formal notice of copyright. However, prior notice and registration with the U.S. Copyright Office are necessary in order to sue an infringer for damages and attorneys fees. The preferred notice is given by affixing the copyright symbol ["©","(c)", "Copr."], date of first publication, and name of owner to the work.
How long does a copyright last?
The duration of a copyright varies greatly depending on the year in which it was created or published because the law has been amended several times, most recently in October of 1998. Currently, a copyright lasts for the life of the author plus 70 years. If the work is one that is created for someone else (a "work made for hire") or if it is anonymous or pseudonymous (i.e., a pen name), it lasts for 95 years from the year of first publication or 120 years from the date of creation, whichever expires first. Publication includes loaning, leasing, selling, or giving away copies of the work.
Once a copyright expires the work enters the "public domain" and may be used freely by anyone. The author may also put the work into the public domain before expiration of the statutory period by expressly saying so.
Who owns the copyright?
The author(s), a transferee or licensee of the author's rights, and the employer of the author if the material is a "work for hire," i.e. prepared in the course and scope of employment. (The University would own all copyrights for faculty articles and books except for the UNCG Copyright Ownership and Use Policy which generally relinquishes the rights in "traditional works" to the author unless the author was specifically hired to produced a certain work or unless the work was created with the "exceptional use of University resources."). There can be multiple owners of a copyrighted work and joint ownership is becoming more and more common with the proliferation of multimedia works. This makes obtaining permissions all the more difficult, and makes copying without permission all the more risky.
How can I legally copy and use copyrighted material?
There are essentially two ways you can copy and use copyrighted material. First, you can get the permission of the copyright owner(s) (i.e. obtain a license). On our campus, the Bookstore will perform this service free of charge for faculty.
The second way is if the copying qualifies under the " fair use exception" to the Copyright Law. 17 U.S.C. § 107. That exception allows copying for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," IF (and this is a very big IF) such use can be considered "fair" when analyzed using the following four factors:
- 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.
Of these four factors, (3) and (4) seem to get the most emphasis by the Courts, especially the market impact factor. Small amounts of spontaneous copying for classroom use, (not including whole articles or book chapters), are probably OK. See, Basic Books, Inc. v. Kinko's Graphics Corp, 758 F.Supp. 1522 (S.D.N.Y. 1991) (Coursepacks containing whole book chapters and significant portions of articles were held to violate the Copyright Law).
Caution: Posting materials on the internet is a form of copying and makes them available to a vastly larger audience which will increase the adverse market impact exponentially, i.e. don't do it, without the owner's permission.
As you can see, determining in advance what will qualify as a "fair use" is, at best, an exercise in uncertainty. Because each case is so fact specific, case precedent has little predictive value. The analysis of the four factors tends to be very subjective. Thus, in the event of a legal challenge, it will come down to what a particular judge thinks.
In an effort to provide some guidance to faculty and staff on this issue, the UNC Office of the President has created a Primer on Copyright Ownership and Use which includes a fair use worksheet. Use of this worksheet before using copyrighted material without permission will help document the good faith effort in case of litigation.
What are the penalties for copyright infringement?
The penalties include payment of actual damages, costs and attorneys fees, fines of up to $100,000 (for willful violations) and, in egregious cases, criminal prosecution leading to imprisonment for up to 5 years.
For more information on this subject, see, Cyberspace Law for Non-Laywers