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California State University, Fullerton

Pollak Library

Copyright & Fair Use: Copyright

The Cal State Fullerton Guide to Understanding Copyright & Fair Use.

Copyright

Copyright is a set of rights bestowed automatically on the author of an original work.  To qualify, the work must have some minimal amount of creativity and be fixed in a perceivable, communicable form.  An unrecorded conversation would not qualify.

Books, music, plays, choreography, art, movies, webpages, software, and architecture are all examples of works protected by copyright.

There are many things that are not protected by copyright.  Ideas and concepts can't be copyrighted.  Neither can procedures, processes, methods, or discoveries.  Some of these may be protected by patent or trade secret law.  Information that is held in common like calendars and standard tools for measurement are not protected by copyright.  Names, titles, and short phrases are not protected by copyright, but may be afforded some protection under trademark law.

Copyright is codified in Title 17 of the US Code where Congress has established the law and continues to refine it as needed.  Congressional authority to administer the law comes directly from Article I of the Constitution.  Congress relies heavily on the courts to interpret individual applications of the law arising in disputes.

Rights

The copyright holder enjoys an exclusive set of incentives in the form of rights.  These rights can be split into pieces and bought or sold like any other commodity.  

Copyright is the exclusive right to:

  • Reproduce the work
  • Make derivative works (spinoffs like movies made from novels or toys from movies)
  • Distribute copies by sale or lease
  • Publicly perform the work
  • Publicly display the work

Limitations

The exclusive rights of the copyright holder are limited.  The law recognizes that, for certain circumstances, a monopoly may not serve the best interests of society.

Some circumstances in which copyright may be limited are:

When a proposed use isn’t covered under a limitation, it is necessary to ask permission from the copyright holder.

The Public Domain

Copyright protection doesn't last forever; it expires seventy years after the author dies.  The legal space for works that are no longer protected by copyright is called the public domain.  The public domain enables publishers to reprint their own editions of old books.  When the author has been dead for over seventy years, anyone is free to publish the work.    However, because copyright protection lasts for different periods of times in different countries, it is advisable to consult the laws of the country of origin before publishing anything on the Internet.  Anything published in the United States before 1923 is considered to be in the public domain.  Corporations can also be authors.  The copyright for corporate works expires 100 years after publication.

Federal government publications fall within the public domain, but state government publications vary from state to state. 

Here are some helpful links if you want to know if a work is protected by copyright or in the public domain:

Copyright Term and the Public Domain in the United States | Cornell University

Digital Copyright Slider | Michael Brewer & the American Library Association for Information Technology Policy

Library and Archive Reproduction (Section 108)

Libraries can make single copies of copyrighted materials under certain conditions.  Not all libraries are eligible.  The library must be open to the public or to researchers outside of the institution.  The copies must not be made for profit.  The copies must also include the copyright notice or, if no notice appears on the work, a general notice stating the work may be protected by copyright.  Music, motion pictures, and audiovisual works are not included in the library's copy priviledges but may be reproduced for purposes of preservation.  Pictures and graphics can only be copied as part of a published work.

Preservation

For preservation purposes, libraries can make three copies of an unpublished work for their own collection or for deposit in another qualifying library or archive. The work must be currently in the collection of the library or archives.  If copied in a digital format, then the work must not be distributed in the same format.

For published works, if the work is damaged, deteriorating, lost, or stolen, the library may make three copies as replacements if the library has determined that a new copy cannot be obtained at a fair price.  Again, if copied in a digital format, then the work must not be distributed in the same format.

Interlibrary Loan

For purposes of study, scholarship, and research, a library may supply another library with a copy of one article or a small part of any other copyrighted work at a users request.  A warning of copyright must be prominently displayed where orders are accepted.  Users may also request the entire work or a substantial part of a work be copied if a copy cannot be obtained at a fair price. 

Photocopiers

A notice that the making of copies may be subject to copyright law must be displayed near photocopiers or any reproductive equipment.  This eliminates the library's liability for copies made on the machine.  Users are still expected to comply with copyright laws.

First Sale (Section 109)

The owner of a particular, legally acquired copy is entitled to sell, rent, lease, loan, display, distribute or otherwise dispose of that particular copy.  This exception does not include the right to copy or enable the public display of motion pictures.  It limits the copyright holder's compensation to the first sale with no further entitlement to subsequent sales or distributions of the same copy.  The owner of the particular copy does not own the intellectual property embedded in the copy.  Without this exception, there would be no movie rentals, checkouts from the library, or interlibrary lending.

Public Displays & Performances (Section 110)

For films, there is no exception for public performances outside of face-to-face teaching or distance education situations.  Unless a good argument can be made for fair use (Section 107), permission will have to be requested from the copyright holder, or a public performance licensing agent like Swank.

For musical works, the composition and the individual performance are recognized as separate copyrights.  As a result, any performance generally has two copyright holders.  Like films, there is no exception for public performances of music outside of face-to-face teaching or distance education situations. Unless a good argument can be made for fair use (Section 107), public performance rights must be obtained from ASCAP, BMI, or SESAC.

Face-to-Face Teaching (Section 110[1])

The copyright holder's exclusive right to display does not extend to face-to-face teaching situations.  As an exception, the law recognizes the classroom as a space for the display of anything that was legally acquired including music and movies in their entirety.  This is not, however, a right to copy.

Distance Education (Section 110[2])

This exception, also known as the "Teach Act," allows "reasonable and limited" portions of films to be streamed online and viewed by students in an educational context.  (There is no consensus as to what "reasonable and limited" actually means).  There are three requirements:

  1. The network must be secure, limiting access solely to the students officially enrolled in the class and only for the duration of the course.
  2. The material must be under the supervision of an instructor shown in the typical routine of class sessions.
  3. The institution administering the course must provide copyright policies, guidance, and educational programs to the campus community.

As an exception to the exclusive rights of the the copyright holder, the Teach Act does not extend to the streaming of works that are made and marketed to be streamed.  It cannot be used as a replacement for educational streaming materials and services.

Reproduction for the Disabled (Section 121)

This exception allows some non-profit entities and government agencies to reproduce works in formats specifically for the blind or other people with disabilities.  Only non-dramatic, literary works are eligible.  Institutions of higher education and libraries can use this exception to make braille, audio, and large-print editions of eligible materials.

Subject Specialist

Anthony Davis's picture
Anthony Davis
Contact:
(657) 278-5838
Subjects:Copyright

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