Copyright Principles in Action

III. General Concepts of Copyright Law

A. Coverage and Scope of Rights

Authors of creative works (prose, poetry, music, graphic arts and photography, sculpture, audio-visual and motion-picture productions, dramatic works, architectural designs, choreographic works, and sound recordings) are given protection against unauthorized copying by the federal Copyright Act of 1976 (17 U.S.C. secs. 101 -810; 1001 -1010) (hereafter "Act"). Ideas are not protectable, but the expression of ideas, once "fixed" in a medium (computer memory, paper, magnetic tape, stone, canvas, etc.) is protectable. The copyist's work does not have to be totally identical to be infringing although that will be the case when digital copies or photocopier copies are made. As stated above, two different persons could, in theory, author two very, very similar works but there would no infringement unless one copied the other, i.e. independent creation is not infringing.

The exclusive rights given by law to the author(s) include the right to make copies, to sell/distribute/lease/license, to display the work publicly, and -- in the case of literary, musical, dramatic, choreographic, audio-visual, and motion-picture works -- to perform the works publicly. For creators of sound recordings, the rights also extend to performing the rights publicly by means of a digital audio transmission.

Congress has recognized that even for creative works, the educational and cultural benefits should not be entirely "locked up" by authors or publishers (who often take assignments of authors' rights in return for royalties in order to be able to recoup their publishing costs safe from the assaults of "pirate" publishers). Congress also recognized that practical usage and enforcement issues required some modest incursions into the author's/publisher's bundle of rights. One important relaxation of these exclusive rights is the public's right of "fair use".

B. Limitations on the rights of the copyright holder

1. Fair Use

Courts may find uses to be "fair" (i.e. non-infringing) after balancing four factors: (1) the purpose for making and using the copy (educational use favored over commercial use); (2) the type or nature of the original work (highly creative works are harder to use "fairly" than less creative works (and recall that purely factual material is not creative and therefore does not afford copyright), but if the alleged infringer's use can be said to be "transformative" (e.g. a parody), that supports fair use); (3) the proportion of the entire work copied (3% or less is generally safe; 3% - 10% is not necessarily bad unless it goes "to the heart" of the work; more than 10% is quite negative and note that for images, the copying is almost always 100%); (4) the impact on the market for the copied work ("market" can include -- in addition to normal sales -- reprints, incorporation into anthologies, revised editions, and even the granting of permission fees, but the impact on an out-of-print, no-general-interest-in-it work will obviously not count for much). Act, sec. 107 The statute does not assign weights to the factors and it is not necessary that all four point in the same direction to make the determination although it is necessary that all four factors be considered. In general, the definitive answer to a fair-use issue is made by the courts on a case-by-case basis. To see the answer to a frequently asked question about copying news items and its effect on the second factor, click on Q. 4. For a discussion of the case law on fair use by academics and researchers see Part IV. A infra.

As stated above (in Part I. B 3), the beginning of the statutory section contains the phrase "fair use… including such use …for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not …[infringing]". This introductory sentence has led many lay persons to assume that academics have carte blanche to duplicate, distribute, and display copyrighted materials. However, the very next sentence goes on to say "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include…" and goes on to enumerate the four-factor test. Thus, while many of the uses academics would make of such material are in the favored grouping, each use must nevertheless prevail in a balancing of the four factors.

There are a number of informal "Guidelines" that have been developed to define "safe harbors" for fair use. Some were discussed at the time the 1976 Copyright Act was enacted and are imbedded in the legislative history of that statute; others have been developed by conferences of interested parties or by the Conference on Fair Use (CONFU), but none have the force of law. Courts have occasionally acknowledged a Guideline but only as helpful or suggestive, not as determinative. Several of these "Guidelines" will be discussed in the Parts, infra, to which they respectively apply.

2. Statutory Exceptions

Another important relaxation is found in the rights given to non-profit and open-to-the-public libraries and archives. See Act, Sec. 108. One of the most important of these rights is the ability to make copies of work they hold in their collections to give to individuals solely for the purpose of private study, scholarship or research. If the user seeks an entire work (i.e. an entire journal issue or an entire book), the library must first determine that no copies can be obtained at a fair price through commercial channels and notice of copyright must be included on the copy they provide. Regardless of whether a copy of a single article or an entire book is sought, the copying and distribution by the library must be "isolated and unrelated" to separate occasions of such copying and cannot be part of a concerted or systematic reproduction of multiple copies for group (e.g. a college class) use. This "scholar's copy" exemption does not extend to musical, pictorial, graphic, sculptural, motion-picture, or audio-visual works (other than the news), however. For the answer to a frequently asked question about a scholar asking for an electronic copy, click on Q.21.

Additionally, such a library may make three copies of an "unpublished" work for "preservation and security". Also, such a library may make up to three copies to replace a "damaged, deteriorated, lost, stolen, or obsolete" holding. In the replacement-copy situation, the library must determine that an "unused replacement cannot be obtained at a fair price." In both of these cases, the copies can be digital provided that the digital-format copies are not made available to the public beyond the library premises. Finally, such a library may go beyond copying and "distribute, display, or perform in facsimile or digital form" a work in the last twenty years of its copyright term if the work is not "subject to normal commercial exploitation" and cannot "be obtained at a reasonable price".

Another relaxation involves the so-called "first-sale doctrine" whereby the purchaser of a phonorecord (the CDs of today fall under the same coverage, but the contents of a CD cannot be "digitally delivered" over the internet. See Act sec.115(c)(H)) can sell or distribute the record without the copyright holder's permission. However, neither owners of records nor possesors of computer programs can rent or lease those items for commercial advantage. Act, sec. 109 (a) and (b).

An important privilege given non-profit educational institutions is to display or perform works in the course of face-to-face instructional activity (in the case of movies and audio-visual works the display must be from a copy lawfully made). See Act, sec. 110(1). Regarding distance learning (remote education), performance of a non-dramatic literary work or a muscial work or display of a work may occur during a transmission which is part of the non-profit's regular instructional activity and where the display, etc. is "directly related and of material assistance to the teaching content of the transmission" to classrooms "or similar places normally devoted to instruction" or to disabled persons unable to attend such class. Id. Sec. 110(2). This section has been under recent criticism as distributed learning over the Internet has become feasible (i.e.e-mail list-serves, interactive web sites, and monitored electronic discussions (e.g. conferencing systems such as Motet)) and the restriction to "classrooms" is perceived as far too limiting. The Registrar of Copyrights has recently filed a report recommending a modernization (in favor of Universities) of this section so It is possible that this exception will be broadened by Congress, but this has not happened so far.

The owner of a pictorial or graphic work or a piece of sculpture or a lawfully made copy of same may "display" the work or that copy (even to the public) at place where the copy is located. See Act, sec.109(c).

Absent advance, written objection from the copyright holder, non-dramatic literary or musical works may be performed (so long as not broadcast or transmitted to a distant public) without infringement if the performers and promoters are not paid and if no admission is charged or if all the proceeds (net of reasonable production costs) are used for educational, charitable, or religious purposes. Act, sec. 110(4).

Issues concerning the retransmission of performances or displays by cable networks are beyond the scope of this primer. Similarly, issues concerning the transmission or retransmission of digital audio works and licensing to interactive or subscription services are beyond the scope. If questions arise concerning such activities, consult the UO Office of Telecommunication Services or the UO Office of General Counsel.

C. Duration of Rights

The rights in works created in 1978 or later last for the lifetime of the author (or the longest-surviving author if there were more than one) plus seventy years. Transition rules apply to works created earlier but still in copyright in 1978 and for "renewal" copyrights conferred under the pre-1976 law. These transition rules are fairly technical and may require particularized investigation. The UO Copyright Clearance Center or the UO Office of General Counsel should be consulted if such works are in issue. The copyrights for works made for hire run for ninety-five years. All copyrights run through the end of the calendar year in which their term expires. Expired copyrights cause the work to fall into the public domain and they may be copied without infringing on the original copyright. Care should be taken however, if the original work has been more recently retranslated, annotated, or substantively or organizationally revised because that version could well be copyright protected (possibly as a derivative work) since copying the more recent, still-copyrighted version would be infringing.

... Continue to Part III D