Copyright Basics
Copyright protection extends to original
works of authorship, applies to any tangible medium
of expression in which the author produces the work,
and attaches whether or not a work is published
or registered with the U.S. Copyright Office. This
protection begins the moment the work is first fixed
in a tangible medium of expression. Facts and ideas
contained in a copyrighted work cannot be protected
by copyright but the “expression” of
the facts or ideas can be.
The copyright notice (©, name, date) is not
required for works published after March 1, 1989.
Therefore, lack of notice does not mean the work
is within the public domain.
Unpublished works are fully protected by copyright
but will begin to enter the public domain beginning
December 31, 2002, if the creator of the work has
been deceased for at least 70 years on that date
and the work has remained unpublished.
A. Rights of the Copyright Holder.
The copyright holder possesses the following exclusive
rights with respect to his/her work. The rights
are divisible and include:
1. The right to reproduce
the work,
2. The right to prepare
derivative works based on it,
3. The right to distribute
it (or copies of it),
4. The right to perform
it publicly,
5. The right to display
it publicly, and
6. The right to perform
publicly a sound recording by means of digital transmission.
“Copies” are material objects, other
than phone records, in which a work is fixed by
any method now known or later developed, and from
which the work can be perceived, reproduced, or
otherwise communicated, either directly or with
the aid of a machine or device.
Unless one or more of the statutory exemptions (some
of which are discussed below) apply, permission
must be obtained from the copyright holder before
any of the above uses may be made of the copyrighted
work.
B. Works Which May Be Freely Used.
Copyright protection does not extend to works in
the public domain. These include the following categories
of works, for which copyright permission is not
required:
1. Works for which
the copyright has expired;
2. Works for which
the copyright was lost;
3. Works produced
by a federal government employee within the scope
of his/her employment;
4. Works which lack
sufficient originality to qualify for copyright
such as standard calendars,
standard height/weight charts, rulers, etc.
C. Length of the Copyright Term.
WHEN
WORKS PASS INTO THE PUBLIC DOMAIN
Includes
material from new Term Extension Act, PL 105-298
DATE
OF WORK |
PROTECTED
FROM |
TERM |
| Created 1-1-78
or after |
When work is
fixed in tangible medium of expression |
Life + 70 years
1(or if work of corporate
authorship, the shorter of 95 years from publication,
or 120 years from creation2 |
| Published before
1923 |
In public domain |
None |
| Published from
1923 - 63 |
When published
with notice3 |
28 years +
could be renewed for 47 years, now extended
by 20 years for a total renewal of 67 years.
If not so renewed, now in public domain |
| Published from
1964 - 77 |
When published
with notice |
28 years for
first term; now automatic extension of 67 years
for second term |
| Created before
1-1-78 but not published |
1-1-78, the
effective date of the 1976 Act which eliminated
common law copyright |
Life + 70 years
or 12-31-2002, whichever is greater |
Created before
1-1-78 but published between then and 12-31-2002 |
1-1-78, the
effective date of the 1976 Act which eliminated
common law copyright |
Life + 70 years
or 12-31-2047 whichever is greater |
Lolly Gasaway, UNC-CH
1 Term of joint works is measured by life of the
longest-lived author.
2 Works for hire, anonymous, and pseudonymous works
also have this term. 17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice
went into the public domain upon publication. Works
published without notice between 1-1-78 and 3-1-89,
effective date of the Berne Convention Implementation
Act, retained copyright only if, e.g., registration
was made within five years. 17 U.S.C. § 405.
Notes courtesy of Professor Tom Field, Franklin
Pierce Law Center
Last updated 10-9-99
D. The Statutory Exemptions.
There are primarily four sections of the Copyright
Act which accrue to the benefit of nonprofit educational
users in the university community. The sections
discussed below contain rights for users of copyrighted
material. The “good faith fair use defense”
is a very important section for employees of nonprofit
educational institutions who have made a reasoned
fair use analysis with respect to their proposed
use.
1. Section 107:
THE FAIR USE DOCTRINE
The purpose of the fair use doctrine is to allow
limited use of copyrighted material without requiring
prior permission from the copyright holder. The
statute lists four factors to be weighed when analyzing
the proposed use in order to determine whether it
is a fair one. Consideration of all factors is required
although all factors do not have to be in favor
of a use to make it a fair one.
A fair use analysis is necessarily a fact-driven
one. Each unique set of facts regarding a proposed
use leads to its own reasoned conclusion. Reasonable
individuals may come to different conclusions concerning
the same set of facts, but the operative word is
“reasonable.” If an employee of a nonprofit
educational institution has made a rational and
reasonable fair use determination, he or she is
not likely to be targeted for an infringement lawsuit
because of § 504(c) (2), the good-faith fair
use defense. Under this section, a court must remit
statutory damages to zero in any case where an infringer
believed, and had reasonable grounds for believing,
that his or her use of the copyrighted work was
a fair use, if the infringer was an employee of
a nonpro?t educational institution, library, or
archive acting within the scope of his or her employment.
Fair use applies in the digital environment and
encompasses not only the right of reproduction but
also the rights of performance, display, modification,
and distribution.
A fair use analysis can be a difficult process.
For the convenience of members of the university
community, please see the accompanying Fair Use
Worksheet, which should be used only in conjunction
with this primer. Additionally, for reference and
general guidance only, see the “Agreement
on Guidelines for Classroom Copying in Not-For-Profit
Educational Institutions with Respect to Books and
Periodicals," HR 94-1476, which was incorporated
into the legislative history, although not the actual
text, of the 1976 Copyright Act. These guidelines
only address copying print materials for classroom
use.
The four fair use factors are as follows:
1. The purpose and
character of the use, including whether the use
is of a commercial
nature or is for nonprofit educational purposes;
2. The nature of the
copyrighted work;
3. The amount and
substantiality of the portion used in relation to
the copyrighted work
as a whole; and
4. The effect of the
use upon the potential market for or value of the
copyrighted work.
a. The First Fair
Use Factor: Purpose and Character of the Use.
This factor will generally weigh in favor of fair
use if the proposed use is a nonpro?t educational
one as opposed to a commercial use. Most uses at
the University can probably be characterized as
nonpro?t educational uses. But educational use alone
does not automatically result in a ?nding of fair
use, just as a commercial use is not always an infringing
one. A nonpro?t educational use would likely result
in this factor favoring a finding of fair use, but
remember that the other three factors must also
be considered.
Additionally, with respect to the reproduction right,
the purpose-and-character-of-the-use factor is more
likely to weigh in favor of fair use if the use
is transformative (i.e., transforms the work)
rather than verbatim copying.
b. The Second Fair
Use Factor: Nature of the Copyrighted Work.
This factor will generally weigh in favor of fair
use if the work to be used is factual in nature
(scholarly, technical, scientific, etc.) as opposed
to works involving more creative expression, such
as plays, poems, fictional works, photographs, and
paintings. Some works have no fair use rights attached,
such as standardized tests and workbooks, works
that are meant to be consumed.
The case for fair use becomes even stronger when
there are only a few ways to express the ideas or
facts contained in a factual work. The line between
unprotected “facts and ideas,” on the
one hand, and protected “expression,"
on the other, is often difficult to draw. If there
is only one way, or very few ways, to express a
fact or an idea, the expression is said to have
merged into the fact/idea and there is no copyright
protection for the expression.
As previously stated, unpublished works are currently
fully protected by law. Nevertheless, fair use applies
to them as it does to published works, but the author’s
rights of first publication may restrict fair use.
c. The Third Fair
Use Factor: Amount and Substantiality of the
Portion Used in Relation
to the Copyrighted Work as a Whole.
Although there are no numerical or percentage limits
for use, the larger the amount one uses, the less
likely it will be a fair use. This deliberate flexibility
in the statute allows each situation to be judged
on its specific facts and allows the doctrine to
be practical in the higher education setting.
This factor also takes into consideration the quality
of the portion taken as well as the quantity. Sometimes,
even if only a small amount is taken, this factor
weighs against fair use if the portion can be justly
characterized as “the heart of the matter.”
It is not difficult to see how this factor and the
fourth factor, market effect, work in tandem. The
more taken in amount and substantiality, the greater
the negative impact on the market for the copyrighted
work.
d. The Fourth Fair
Use Factor: The Effect of the Use on the Market
for or Value of the
Copyrighted Work.
This factor examines the effect of the use on the
publisher’s market. If the proposed use were
to become widespread and would negatively impact
the market for or value of the copyrighted work,
this factor would weigh against fair use. This factor
is often cited as the most important of the four
although, again, the factors all interrelate and
must be evaluated in conjunction with each other.
In fact, this factor often becomes problematic because
it can easily lead to circular reasoning: the purpose
of the fair use analysis is to decide whether or
not a permission fee is required; but the existence
of a market for permissions should not determine
whether a fee is necessary in the first place.
2. Section
108: THE LIBRARY EXEMPTIONS.
Libraries exist to facilitate access to and preserve
information and so are rightfully granted specific
exemptions under copyright law. While libraries
can always avail themselves of fair use under §107,
their specific exemptions are grouped in §108
of the Copyright Act.
The §108 exemptions deal primarily with the
copyright holder’s right to control reproduction
of the work. Most, if not all, of the libraries
within the UNC system qualify for the §108
exemptions because they are open to the public,
make reproductions for patrons on a nonprofit basis,
and include notices of copyright with the reproduction.
If the work contains a copyright notice, that notice
must be included with the reproduction. If no notice
can be found for the work, a statement indicating
that the work may be protected by copyright is sufficient.
a. Library
Reproduction of Unpublished Works.
The library may reproduce an unpublished work in
its collection for preservation or security purposes.
It may also reproduce such a work for deposit in
another qualifying library for research purposes.
b. Library
Reproduction of Published Works.
The library may reproduce a published work in its
collection only to replace a work that is damaged,
deteriorating, lost, stolen, or obsolete, and then
only if the library has determined after a reasonable
effort that an unused replacement cannot be obtained
at a fair price.
c. Library
Reproduction for Patrons.
The library may reproduce small portions of a copyrighted
work or one article or contribution to a copyrighted
collection for a patron if:
(1) The reproduction
becomes the property of the patron;
(2) The library has
no notice that the reproduction will be used for
something other than
private study, scholarship, or research; and
(3) The library has
a display notice and order form which include the
“Warning of Copyright”
as prescribed by the Register of Copyright.
That warning should read as follows:
Warning of Copyright
The copyright Law of the United States (Title 17,
United States Code) governs the making of photocopies
or other reproductions of copyrighted material.
Under certain conditions speci?ed in the law, libraries
and archives are authorized to furnish a photocopy
or other reproduction. One of these speci?c conditions
is that the photocopy or reproduction is not to
be “used for any purpose other than private
study, scholarship or research.” If a user
makes a request for, or later uses, a photocopy
or reproduction for purposes in excess of “fair
use," that user may be liable for copyright
infringement. This institution reserves the right
to refuse to accept a copying order if, in its judgment,
ful?lment of the order would involve violation of
copyright law.
The library may reproduce entire works or substantial
parts of entire works for a patron if a reproduction
of the work cannot be obtained at a fair price and
if conditions c (1) through (3), above, are met.
Reproductions for patrons may be made in any medium,
including electronic.
d. Self-Service
Reproduction.
The library is not liable for copyright infringement
by patrons that may occur at unsupervised self-service
reproducing machines as long as a notice is posted
on the machine that the making of a reproduction
may be subject to the copyright law.
e. Audiovisual
News Programs.
The library may make a limited number of reproductions
of an audiovisual news program (local, regional,
and national network newscasts; interviews concerning
current events; and on-the-spot news coverage of
news events) for retention by the patron or by the
library for lending.
f. Systematic Reproduction.
The single reproductions authorized by §108
are limited to “isolated and unrelated”
reproduction and exclude copying where the library
or its employee “is aware or has substantial
reason to believe” that it is engaging in
the related or concerted reproduction or distribution
of multiple reproductions of the same material,
whether made on one occasion or over a period of
time, and whether intended for aggregate use by
one or more individuals or for separate use by the
individual members of a group. However, nothing
prevents a library from participating in interlibrary
arrangements that do not have, as their purpose
or effect, the substitution for a subscription to
or purchase of the work.
g. Exclusion
of Nonverbal Works.
Reproducing musical, pictorial, or graphic works
is not authorized under §108 except in the
following two circumstances:
Where a musical, pictorial, or graphic work is to
be copied under conditions de?ned as preservation
or replacement (see sections 2a and 2b, above);
or
Where a pictorial or graphic work published as an
illustration, diagram, or similar adjunct to a work
is to be copied as a part of the larger work under
conditions for reproducing portions of works or
entire works (see section 2c, above).
3. Section 110:
THE CLASSROOM EXEMPTIONS FOR PERFORMANCE AND DISPLAY.
Section 110 contains the exemptions for the performance
and display of works (not reproduction) essential
to the functioning of a nonprofit educational institution.
a. Face-to-Face
Classroom Setting.
Educators and students may perform or display a
copyrighted work in the course of face-to-face teaching
at a nonpro?t educational institution in a classroom
or other place normally devoted to instruction.
Face-to-face teaching is defined as simultaneous
presence of students and teachers in the same location.
All other modes of instruction are governed by section
b, below. There are no restrictions on the type
or length of work, and the copyright holder’s
permission is not necessary.
b Distance
Education and Other Instructional Transmissions.
If the work performed or displayed is to be transmitted
by an educator or student, additional conditions
must be met. Any work may be displayed, but only
nondramatic musical works and nondramatic literary
works may be performed in their entirety. Nondramatic
literary works do not include audiovisual works.
Furthermore, even those works allowed above can
be transmitted only if:
(1) The performance
or display is a regular part of the systematic instructional
activities
of a nonprofit educational institution; and
(2) The performance
or display is directly related, and of material
assistance, to the
teaching content of the transmission; and
(3) The transmission
is made primarily for
•
Reception in classrooms or similar places normally
devoted to instruction; or
•
Reception by persons to whom the transmission is
directed because special circumstances
prevent their attendance in classrooms or similar
places.
Even with these restrictions, however, small portions
of works such as audiovisual works might be transmitted
as a fair use. See Section E, above, under Library
Exemptions.
(4) Damages for
Copyright Infringement and the Good-Faith Fair Use
Defense.
The copyright holder may sue for infringement of
the work and seek the following remedies:
a. Temporary and permanent
injunction against infringement;
b. Impoundment of
infringing copies;
c. Destruction or
other reasonable disposition of the infringing copies
and any masters
of negatives of infringing copies;
d. Actual damages
to the owner;
e. Profits of the
infringer attributable to the infringement;
f. Court costs and
reasonable attorney’s fees; and
g. Statutory damages.
In lieu of
actual damages and profits a copyright holder may
seek through the court statutory damages ranging
from $750 to $150,000 per infringement, depending
on the presence or absence of willfulness of the
infringement. Statutory damages, once awarded by
the court, though, may be reduced to a figure as
low as $200 where the court finds that the infringer
"was not aware and had no reason to believe
that his or her acts constituted an infringement
of copyright"; i.e., that the offender was
a “good-faith” infringer. And, for employees
and agents of the University (including its librarians
and archivists) and its public broadcast entity,
statutory damages may be completely "remitted"
(cancelled) if the court finds that the infringement
occurred in the course and scope of employment and
that "the infringer believed and had reasonable
grounds for believing that his or her use of the
copyrighted work was a fair use under section 107."
5. Process for Defense.
Several North Carolina statutes working in tandem
provide insurance coverage and defense costs for
University employees. There are, however, several
prerequisites to this coverage that must be borne
in mind when asking whether a specific, infringing
action or activity will be covered. First, the act
(or omission) must be made within the scope of the
employee’s University duties. For example,
if a faculty member is preparing a coursepack for
his or her class and decides to use part of a copyrighted
work in that packet, the action of selecting that
work will probably be considered “within the
course and scope” of his or her teaching duties.
Second, the act or omission must not be fraudulent,
malicious, or corrupt. Third, the defense of the
action must not create a conflict between the state
and the employee. Such a situation might arise if
the faculty member selected a copyrighted work for
which the copyright was owned by the University.
In these situations, often the state will employ
outside counsel to represent the faculty member.
And, fourth, the defense of the action must not
place the state in the position of defending an
act that would not be in its best interests. This
fourth prerequisite is rarely at issue and should
not be problematic if the other three factors are
not at issue.
A fifth factor underlies these four statutory predicates;
that is, was the action being challenged taken in
good faith? In summarizing what this means, it is
often stated that the action was or was not reasonable
in light of the circumstances surrounding it and
that it was or was not in compliance with University
policies. Thus, to take the example above, of the
course pack, if the faculty member selected an entire
book to copy for his course pack, knew that the
book was copyrighted, did not check University policies
(or related guidelines) on which uses might be considered
fair use, and did not seek from the copyright owner
permission to use the work, the action probably
would not be found to have been in good faith.
Of course, few situations are this clear cut or
obvious. On many occasions it will not be certain
that a particular use is “fair” or that
some other exemption might apply. It is by far the
better course in these situations to review all
University policies and guidelines carefully and
to seek advice from University counsel. The University
will provide both defense costs (the expense of
defending an action and paying a judgment) and representation
(an attorney to represent the faculty member) if
the faculty member takes the steps described. The
final decision to represent and defend in a particular
case, though, rests with the North Carolina Attorney
General.
As to the amount of coverage available, the institution
provides $500,000 of self-insurance for any claim
that meets these prerequisites. Beyond this amount
the State of North Carolina has secured a “second
tier” of protection, an “excess insurance
policy” that currently will cover up to $50,000,000
of coverage for such a claim. (The policy is negotiated
on an annual basis.) The monetary cushion is much
more than adequate; indeed, we have never had a
claim that came close to this limit.
Overall, then, the liability and monetary coverages
are excellent. As long as University employees recall
their job parameters, comply with University policies,
and act reasonably and in good faith, they have
little to fear from a copyright claim or litigation.
Developed by The Copyright Task Force of the University
of North Carolina.
Last Modified: January 29, 2003
