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Copyright

What is Copyright?

Copyright is a form of protection afforded under the U.S. Constitution and federal law to “original works of authorship” that are fixed in a tangible form of expression (e.g., written down, audio recorded, videotaped, etc.), including​ literary, dramatic, musical, artistic, pictorial, and other intellectual works (basically anything that is creative and can be fixed in some manner. Copyright covers both published and unpublished works.

A copyright gives the owner the exclusive right to make, reproduce, and distribute copies of the work, prepare derivative works, perform the work publicly (e.g., plays, films, music, etc.), and display the work publicly such as on the internet, television, etc. “Derivative works” are works that are based on the original work, such as translations, musical arrangements, movies based on boo​ks or plays, and the like.

Almost any original work that is creative and can be fixed into a tangible form can be copyrighted. Some common types of works protected under copyright law include:

  • Literary works (books, articles, plays, etc.)
  • Dramatic works (plays, poetry, etc.)
  • Musical works (sheet music, lyrics, etc.)
  • Artistic works (paintings, drawings, etc.)
  • Pictorial, graphic and sculptural works (photographs, blue prints, maps, sculptures, etc.)
  • Pantomimes and choreographic works
  • Movies and other audiovisual works
  • Sound recordings
  • Architectural works
  • Software
  • Facts, ideas and concepts
  • Titles, names, short phrases, slogans, symbols (these may be subject to trademark protection)
  • Mere listings of ingredients or contents
  • Procedures, methods of operation, principles, designs, formulas, discoveries, and devices (these may be subject to other IP protection such as patent or trade secret)
  • Works consisting entirely of common property, containing no original authorship (e.g., tape measures and rulers, lists or tables taken from public documents or other common sources)
  • Works created by the U.S. government
  • Works that have not been fixed in a tangible form of expression (e.g., choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Under U.S. copyright law, a copyrightable work is protected from the moment the work is created and fixed in a tangible form. No registration or publication is required. However, there are important benefits to registering a copyright. These include giving others notice of the copyright and making it easier to license the work, collect royalties, and enforce ownership rights. Copyright registration is also required to bring a lawsuit for copyright infringement and obtain certain kinds of damages or fees in court. A copyright typically lasts for the life of the author/creator plus an additional 70 years for anything created after 1978. For an anonymous work or work for hire, the copyright lasts for 95 years from the date of first publication or 120 years from the date of creation, whichever expires first. For works published before 1978, the term may vary depending on the specific circumstances.

Copyright law only grants the owner of a creative work certain exclusive rights for activities within the United States. A creator who wishes to obtain copyright protection in other countries must file for protection and/or meet the requirements for such protection in any other countries in which protection is sought.

Copyright infringement is a violation of ament?ny of the exclusive rights of copyright including use of the whole or part of a work without permission, use of a work beyond the scope of a license, and adapting or modifying a work without permission, such as changing the medium (e.g., print to digital). The penalties for infringing a copyright can include injunctive relief, civil damages, and statutory damages fines up to $150,000 for each act of infringement.


Exceptions to Copyright Holder’s Exclusive Rights

The rights provided to copyright holders under the Copyright Act are exclusive, meaning they give the holder the exclusive right to make, reproduce, and distribute copies of the work, prepare derivative works, as well as perform or display the work publicly. However, there are some exceptions under Copyright law that allow works to be used without violating these exclusive rights. These exceptions include, among others:

  • Face-to-face teaching,
  • Distance learning (TEACH Act), and
  • Fair use

Additional exceptions not discussed here include the statutory exception for libraries and archives as well as where necessary to ensure access for those with disabilities. Many works have also been dedicated to the “public domain,” meaning that they may be used without violating a copyright holder’s rights. Campuses should consult with University Counsel to determine whether a copyright exception applies.

Face-to-Face Teaching

The Copyright Act includes a face-to-face teaching exemption, which allows instructors to perform or display copyrighted works (e.g., films, writings, etc.) in class without violating the copyright holder’s rights. The exemption does not include the right to make or distribute copies of, or make derivative works based on, the copyrighted works or the right to use the works outside of the classroom setting.

Face-to-Face Teaching Requirements
To qualify for the face-to-face teaching exemption, the following must apply:

  • The copyrighted work must be lawfully obtained;
  • The institution must be a non-profit, accredited educational institution;
  • The work must be used for instructional purposes; and
  • The instruction must take place in a class or similar face-to-face instructional setting.

If these requirements are met, then copyrighted works may be displayed or performed in the classroom. This means, for example, that students and instructors can watch movies, perform scenes from a play, or display photographs of artistic works within the classroom for educational purposes without first obtaining permission or a license. This exemption does not apply to other uses of the copyrighted works (e.g., copying or distribution) or to uses outside of the classroom setting. In such cases, other exceptions, such as the TEACH Act or Fair Use, may apply depending on the specific facts and circumstances.

Distance Learning (The TEACH Act)

The Technology, Education, and Copyright Harmonization (“TEACH”) Act of 2002 was enacted as a way to support online education and balance the needs of distance learning with the rights of copyright holders. The TEACH Act made copyright laws and requirements for distance learning similar to those for face-to-face teaching, though there are still significant differences. The TEACH Act permits educators and students to transmit performances and displays of copyrighted works as part of a distance learning course if the requirements of the TEACH Act are met. Any distance learning activities outside the protections of the TEACH Act would need to have permission or qualify for another exemption (e.g., public domain, fair use, etc.).

TEACH Act Requirements

The TEACH Act requires that academic institution​s meet a variety of requirements in order for its exemptions to apply. These requirements ensure that the copyrighted works are being used in a permitted manner and that the academic institution has sufficient policies and practices in place for copyright compliance and education. These requirements include, among others:

  • The institution must be a non-profit, accredited educational institution;
  • The use of copyrighted materials must be provided at the professor’s direction during the relevant lesson;
  • The copyrighted materials must be directly related to the content being tau​ght and of material assistance to teaching the content;
  • The work may be displayed only in an amount comparable to what would be seen in a live class (e.g., does not cover materials students would be expected to review or study on their own);
  • Access to the copyrighted materials must be limited to students enrolled in the particular class (e.g., the materials are not available to the general public or those not currently enrolled in the class);
  • The copyrighted works used are not those specifically excluded from coverage under the TEACH Act, including: materials specifically marketed for classroom use for distance learning, textbooks, coursepacks, electronic reserves and similar materials typically purchased by students;
  • The professor may not make copies of the copyrighted works other than the one needed to make the online transmission (e.g., the copy needed to be able to create the digital work);
  • The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials; and
  • The institution must implement technological measures to ensure compliance with copyright law and policies.

Materials permitted to be used under the TEACH Act include:

  • Entire performances of nondramatic literary and musical works;
  • Reasonable and limited parts of a dramatic literary, musical or audiovisual work; and
  • Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching.

Fair Use

The “fair use” doctrine allows limited use of copyrighted material without requiring permission from the owner and protects certain uses from copyright infringement actions. Examples of fair use include: use of a work for criticism, comment, news reporting, teaching, scholarship, or research. However, the fair use inquiry is holistic and there are no bright-line rules. Rather, courts use a case-by-case analysis and look to the purpose and character of the use (e.g., commercial vs. non-profit), na​ture of the copyrighted work, amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of use upon the potential market for or value of the copyrighted work. All four factors must be analyzed in making a fair use determination and courts differ on the relative weight given to each factor. Consequently, the scope of fair use is an unclear and inconsistent area of copyright law. Campuses should consult with University Counsel before making a determination that the “fair use” doctrine would apply to a proposed use of copyrighted material.

Public Domain

A public domain work is a creative work that is not protected by copyright and that may be used without violating copyright law. Individuals are able to use works within the public domain without first obtaining permission or a license to use the work.

Works may fall within the public do​main in any of the following ways:

  • The copyright for the work has expired or been forfeited (e.g., the copyright term has expired or not been renewed, copyright notice was not provided, etc.);
  • The copyright owner dedicates the work to the public domain; or
  • Copyright law does not protect the work (e.g., work created by federal employees, facts or ideas, etc.).

There are many sources of public domain work. Below is a list of some potential sources, though users should confirm that a work is dedicated to the public domain before using.



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