Copyright & Electronic Rights

What Is Copyright?

The Copyright Handbook defines copyright as "a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used."The purpose of copyright is to protect the economic rights of creators, whether they are writers, musicians, or artists. Copyright means that creators have the right to be acknowledged and paid for use of their work.

What Can be Copyrighted?

Physical, original expressions can be copyrighted. A presentation that is not recorded in some physical medium (print, photography, etc.) cannot be copyrighted. However, anything that is tangible can be copyrighted. There are three fundamental requirements for something to be copyrighted:

• Fixation:
  • The item must be fixed in some way. The fixation may be just about anything. For example, a piece of paper, a computer disk, a audiotape, or a videotape are all legitimate forms of fixation.
  Originality:
  • The work must be original. Originality includes a novel or a student's e-mail message to a professor. Both are considered examples of original expression.
  • It is not necessary for the work to be completely original. Works may be combined, adapted, or transformed in new ways that would make them eligible for copyright protection.
• Minimal Creativity:
  • The work must include something that is above and beyond the original. Verbatim use is not considered original. Reference to the original work that is used to discuss a new concept would be considered original, however.
  • Creativity need only be extremely slight for the work to be eligible for protection.

What Cannot be Protected by Copyright?

• Works in the public domain:
  • Ideas are in the public domain. Facts are in the public domain. Words, names, slogans, or other short phrases also cannot be copyrighted. However, slogans, for example, can be protected by trademark law. Blank forms. Government works, which include:
    • Judicial opinions. Public ordinances.
    • Administrative rulings.
    Works created by federal government employees as part of their official responsibility.
  • Works for which copyright wasn't obtained or copyright has expired (extremely rare!).

What Does Copyright Protect?

The four basic protections are:

• The right to make copies of the work. The right to sell or otherwise distribute copies of the work. The right to prepare new works based on the protected work.
• The right to perform the protected work (such as a stage play or painting) in public.

What is Fair Use?

Fair use is the most significant limitation on the copyright holder's exclusive rights. The individual who wants to use a copyrighted work must weigh four factors: The purpose and character of the use:

• Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use. Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it more likely to be considered fair use.
• Is the use of the copyrighted work for nonprofit or educational purposes? The use of copyrighted works for nonprofit or educational purposes is more likely to be considered fair use.

The nature of the copyrighted work:

• Is the copyrighted work a published or unpublished works? Unpublished works are less likely to be considered fair use. Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
• Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use.

The amount and substantiality of the portion used:

• The more you use, the less likely it will be considered fair use. Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work.
• Is the particular portion used likely to adversely affect the author's economic gain? If you use the "heart" or "essence" of a work, it is less likely your use will be considered fair.

The effect of use on the potential market for the copyrighted work:

• The more the new work differs from the original, the less likely it will be considered an infringement. Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement.
• Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use.

Rules for Fair Use for Instructors

Copying by teachers must meet the tests of brevity and spontaneity:

• Brevity refers to how much of the work you can copy.
• Spontaneity refers to how many times you can copy.

  According to the rule, the need to copy should occur closely in time to the need to use the copies. If an instructor uses something for one semester it is likely to be seen as fair use. If an instructor uses material repeatedly, it's less likely to be considered fair use. The expectation is that you will obtain permission as soon as it is feasible. Using something over a period of years is not within the spirit of the guidelines.

Special works:

• "Works that combine language and illustrations and which are intended sometimes for children and at other times for a general audience." A child's book is an example. Special works should never be copied in their entirety.
• An excerpt of no more than two pages or 10 percent, whichever is less, is the rule for special works.

The use of the copies should be for one course at one school. The copies should include a notice of copyright acknowledging the author of the work. NOTE: It is recommended that teachers, faculty, or instructors consider both the special guidelines for instructor and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use.

What Can Be Copied?

• A chapter from a book (never the entire book). An article from a periodical or newspaper. A short story, essay, or poem. One work is the norm whether it comes from an individual work or an anthology. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper. Poetry
  • Multiple copies of a poem of 250 words or less that exist on two pages or less or 250 words from a longer poem.
  Prose
  • Multiple copies of an article, story or essay that are 2,500 words or less or excerpts up to 1,000 words or 10 percent of the total work, whichever is less.
• Illustrations
  • Multiple copies of a chart, graph, diagram, drawing, cartoon, or picture contained in a book or periodical issue.

What Should Be Avoided?

• Making multiple copies of different works that could substitute for the purchase of books, publisher's reprints, or periodicals. Copying the same works from semester to semester. Copying the same material for several different courses at the same or different institutions.
• Copying more than nine separate times in a single semester.

When is Permission Required?

• When you intend to use the materials for commercial purposes. When you want to use the materials repeatedly.
• When you want to use a work in its entirety and it is longer than 2,500 words.

Copyright and Electronic Publishing

• The same copyright protections exist for the author of a work regardless of whether the work is in a database, CD-ROM, bulletin board, or on the Internet. If you make a copy from an electronic source, such as the Internet or WWW, for your personal use, it is likely to be seen as fair use. However, if you make a copy and put it on your personal WWW site, it less likely to be considered fair use.
• The Internet IS NOT the public domain. There are both uncopyrighted and copyrighted materials available. Assume a work is copyrighted.

Internet and Copyright

• Always credit the source of your information Find out if the author of a work (e.g., video, audio, graphic, icon) provides information on how to use his or her work. If explicit guidelines exist, follow them.
• Whenever feasible, ask the owner of the copyright for permission. Keep a copy of your request for permission and the permission received.

Additional Online Resources

• U.S. Copyright Office
• Fair Use of Copyrighted Works
• Copyright and Fair Use
• Tasini vs. New York Times (landmark electronic rights case)
• ONLINE! Citation Styles
• Using information in a legal and ethical manner
• What is plagiarism?