Having a basic understanding of how the copyright law works is helpful as you consider using the copyrighted works of others. Keep in mind the perspective of both the owner and user of copyrighted material, the golden rule of copyright, “If you were the copyright owner, would you see the proposed use as an acceptable use and not expect to be asked for permission?”
Merely owning a book, CD, DVD, VHS, poster, painting or other product does not give you the right to make copies, distribute copies, make derivatives or publicly perform or display that material. You have only purchased the right to own your own personal physical copy. Making a copy to sell, for a friend, or for further distribution or for various other uses may not be within your rights.
What Is Copyright?
Copyright is protection provided by law (17, U.S. Code §102) to the authors/creators of “original works of authorship,” expressed in a tangible medium. This protection is available for original works from the moment they are created in a tangible medium, and it applies whether they are published, unpublished or registered with the U.S. Copyright Office.
Copyright protection is available for an author/creator if three requirements are met:
- Fixation—the work exists in a medium from which the author’s expression can be read, seen, or heard, either directly or by the aid of a machine
- Originality—the work owes its origin and independent creation to an author
- Minimal creativity—the work is the product of at least a minimal level of creativity
What Works Are Protected?
Most original works are protected by copyright. The U.S. Copyright law places copyrightable works in the following categories:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
You should view these categories broadly. For example, computer programs and most compilations may be categorized and registered as literary works; maps and architectural plans may be categorized and registered as pictorial, graphic, and sculptural works.
Rights of the Copyright Owner
Section 106 of the U.S. copyright law gives the owner of a copyright the exclusive rights to do and to authorize others to do the following:
- to reproduce the work
- to prepare derivative works based upon the work
- to distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- to perform the work publicly
- to display the copyrighted work publicly
- in the case of sound recordings, to perform the work publicly by means of digital audio transmission.
- in the case of a “work of visual art” the author has certain rights of attribution and integrity
The rights of the copyright owner are, in some instances, limited as several sections of the U.S. Copyright Law have established limitations on these rights. However, unless one or more of the limitations (exceptions) apply, you must obtain permission from the copyright owner before using copyrighted works in any of the listed ways.
The copyright owner is the person or entity who owns the exclusive rights mentioned above. The copyright owner could be the author, the publisher, or another person or entity having legal ownership of one or more of the exclusive rights described above.
Is It Covered By Copyright?
Consult the Copyright Genie, a series of questions and answers, developed by Michael Brewer, ALA Office for Information Technology Policy.
Copyright protection does not extend to the following, therefore permission is not required for you to use them:
- Works for which the copyright has expired.
- Works federal government employees produced within the scope of their employment.
- Works clearly and explicitly donated to the public domain.
- Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or spontaneous speeches or performances that have not been written or recorded).
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
- Works consisting entirely of information that is common property and contains no original authorship (for example, standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
Educause Podcast: Current copyright issues in higher education
In this 13-minute podcast, Educause features an interview with Susie Quartey, Associate Director-Copyright Licensing Office, Brigham Young University. She discusses the current copyright issues in higher education. She also describes useful tools BYU has developed to assist and educate its campus community including an online copyright tutorial.
Glossary of Copyright Terms
Pertinent copyright terms are defined by Carrie Russell in Complete Copyright: An Everyday Guide for Librarians, an ALA publication (PDF)
There are a lot of common myths about copyright law and the uses of material protected by that law. The following are things you may have heard, suspected, but could never be sure about.
Myth #1: I don’t need permission because I am only using a small amount of the copyrighted work
False. While copying a small amount of a copyright protected work may not be a copyright infringement, there are no clear rules regarding what constitutes permitted use of small amounts of copyright protected materials. In one case, a magazine article that used 300 words from a 200,000-word biography written by President Gerald Ford was found to infringe the copyright of Ford’s autobiography. Even though the copied material was only a small part of the autobiography, the copied portions were among the most powerful passages in the autobiography. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
See explanation of fair use under Myth # 4 below.
Myth #2: I purchased a book, artwork, photograph, compact disc, or videotape that I’m going to copy, so I already have permission
False. Copyright law distinguishes between ownership of the copyright in a work and ownership of a copy of the work, such as a tape, compact disc, videotape, book, or photographic print. This ownership of a copy of the copyright protected work does not give permission to exercise the exclusive rights of the copyright owner. However, you can, without the permission of the copyright owner, “sell or otherwise dispose of” your copy.
Myth #3: Because I “innocently” infringed I don’t need permission
False. Lack of intent to infringe is not a defense to copyright infringement nor is ignorance of the copyright law.
Myth #4: Because I am using someone’s copyrighted works for non-profit educational use, I don’t need permission
False. Copying for educational or non-profit use may qualify as fair use in some cases; but it does not automatically in all cases. The type of use is only one of the factors that determine whether a use is fair or not. All of the four factors of fair use must be considered. Copyright law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the use will not fit the fair use exemption and may require permission from the copyright owner. Reliance on a “reasoned” analysis using the Checklist for Fair Use is essential to claiming a good-faith effort. For a detailed explanation of fair use see the Fair Use section.
When permission is needed and obtained, many copyright owners/publishers will often give permission to non-profit educational institutions without a fee.
The “fair use” concept varies from country to country, and has different names (such as “fair dealing” in Australia and Canada) and other limitations outside the U.S.A.
Myth #5: The work I want to use doesn’t have a copyright notice on it, so it’s not protected by copyright and I’m free to use it
False. For works published after March 1, 1989, the use of a copyright notice is optional. If a work is published without a copyright notice it doesn’t necessarily mean the work is not protected by copyright.
There are benefits for including a copyright notice, but the law now states “a notice of copyright. . .may be placed on publicly distributed copies” but is not required. The correct form of a copyright notice is:
© or the word “Copyright” [year of first publication] by [author/owner]
Myth #6: Since I’m planning to give credit to the authors who created the works I copy, I don’t need permission
False. If you give credit to a work’s author, you are not a plagiarist (you are not pretending you authored the copied work). However, attribution is not a defense to copyright infringement. Plagiarism can occur for material either protected or not protected by copyright simply by incorrectly taking credit for it. Copyright infringement occurs when you use material protected by copyright without the copyright owner’s permission.
Myth #7: I don’t need permission because I am going to alter the work I copy
False. You could still be liable for copyright infringement by altering or modifying the work you copy. You can use elements of works not protected by copyright, but if you copy and modify protected elements of a copyright protected work, you could be infringing the copyright owner’s modification (derivative work) right as well as the duplication right.
Myth #8: The author of the work that I want to use lives outside of the U.S., so the work is not protected by copyright in the United States
False. Do not assume a work lacks copyright protection in the United States because its author is a non-U.S. author. Non U.S. authors who live in countries that belong to the Berne Convention or the Universal Copyright Convention automatically obtain copyright protection in the U.S. Most major countries are members of at least one of these conventions.
Myth #9: If there is no charge for the copies then it is not copyright infringement
False. Not charging for the copies does not automatically make the copying permissible. Since some non-profit educational uses do not qualify as fair use, such organizations are not immune from copyright infringement.
Myth #10: Material I obtain from the Internet is in the public domain and no permission is required
False. Works protected by copyright are not in the public domain unless the owner explicitly puts them into the public domain, the copyright protection has expired, or the works were created by employees of the federal government. Placing material protected by copyright on the Internet may imply intent by the copyright owner to make the material more widely available, but this does not mean they have granted permission to further duplicate and/or distribute their material.
On many web sites, the web publisher has indicated the allowed uses; check for links identified as copyright information, use information, copyright policy, etc. for an explanation of such permitted uses.
Myth #11: If I don’t defend my copyright I may lose it
False. Copyright protection is effectively never lost, unless explicitly given away or the copyright has expired. However, if you do not actively defend your copyright, there may be broader unauthorized uses than you would like. It is a good idea to pursue enforcement actions as soon as you discover misuse of your copyright protected material.
Other Copyright Myth Resources
Bloggers Beware: Debunking Eight Copyright Myths of the Online World, LLRX.com by Kathy Biehl
Top 10 Urban Copyright Myths, KEYT Law by Richard Keyt
10 Big Myths About Copyright Explained by Brad Templeton
Common Myths for Collage Art, FunnyStrange.com by Sarah Ovenall