Copyright Corner

Today is the 9^th anniversary of the Copyright Corner blog, with the first post (Why Copyright Education?) published back in August of 2009. Since then, we’ve had posts covering a wide-range of issues; from copyright protection for patterns and DMCA exemptions to copyright issues faced by units across OSU Libraries and tips on finding a copyright owner. For this post, we are going back to the basics and looking at some of the fundamentals of copyright law in the United States.

Why do we have copyright?

There are a number of theories on the purpose of copyright. Countries may have laws that encompass one or more of these theories.

One common theory for the purpose of copyright is utilitarian. Under this theory, we provide authors a copyright in the works they create as an incentive to create and disseminate new works. The law is organized to promote the collective welfare of society, but recognizes that unless creators can recoup the costs involved in the creation and dissemination of their works, they won’t produce the works. Copyright gives to authors and creators exclusive rights in the works they create, which in turn allows them to suppress competition for a limited time.

Much of U.S. copyright law seems to align with this theory, with Article I, Section 8, Clause 8 of the U.S. Constitution granting Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”

Another theory for the purpose of copyright is the author’s rights theory. Under this theory, the primary purpose of copyright is to recognize and protect the emotional bond between artists and their creations, acknowledging creative works as manifestations and extensions of their author’s personality. Countries whose laws are influenced by this theory may provide moral rights for authors and creators that exist separately from economic rights.

What exactly is copyright and how do you get it?

Copyright is a legal right that allows creators and authors the ability to control certain uses of their works. The owner of a copyright has a number of exclusive rights that are provided under the law (these rights are discussed below).

In the U.S., copyright protects original works of authorship that are fixed in a tangible medium of expression and copyright exists at the moment of fixation. In other words, copyright protection is automatic.

Including a copyright notice (e.g., © 2018 The Ohio State University) is optional for works created today but there can be some advantages to including a notice on your copyrighted work. And registration with the U.S. Copyright Office? That’s also an optional step that provides some important benefits to copyright holders.

Who can be a copyright owner?

In the U.S., copyright initially vests with the author or creator of the work. And under certain conditions, a work may be considered a joint work, in which case two or more authors jointly share the copyright in the work they have created together.

Copyright can, however, be transferred over time, in part or in whole. This means that in some cases the original author or authors of a work will no longer hold the exclusive rights in that work. This may occur, for example, when an author signs a publishing agreement that requires the author to transfer their rights to the publisher.

Ownership can also be impacted by employment contracts and institutional policies. Under OSU’s Intellectual Property Policy, copyright ownership can look different based on an individual’s affiliation with the university: faculty, staff, or student.

OSU’s IP policy reflects an important part of U.S. copyright law: works made for hire. A work made for hire is created when an employee creates a copyrighted work as part of their job duties, or when a work has been specially ordered or commissioned and both parties agree in writing that the work is to be considered a work made for hire. For works made for hire, it is the employer or the party ordering or commissioning the work that is considered the copyright owner.

What rights does a copyright owner have?

Copyright provides a number of exclusive rights to authors and creators. These rights may include the right to make and authorize others to reproduce (copy), translate, publicly perform and communicate works to the public (including broadcast), and adapt and arrange their work.

Copyright law may also protect Similar and Related Rights (referred to as “neighboring rights” in many countries), which gives copyright-like rights that are provided to entities that are not the author of the work. These entities can include broadcasters, producers, or performers of the work.

Copyright law may also provide moral rights to an author of a work. The right of attribution and the right of an author to preserve the integrity of their work are examples of moral rights.

U.S. copyright law gives these exclusive rights to copyright owners: reproduction, adaptation (derivative works), distribution, public performance, public display, and public performance via digital audio transmissions for copyright owners of sound recordings. U.S. law provides rights for attribution and integrity (moral rights) for a limited category of works under the Visual Artists Rights Act of 1990.

What can be protected by copyright?

In general, copyright protects creative works. Because each country develops their own copyright laws, there is no such thing as a single international copyright, and so the laws of one country may provide protection to a category of work that is not recognized under the laws of another country.

International treaties and multilateral and bilateral trade agreements help to harmonize these different laws by establishing minimum standards for participating countries.

For countries that are a party to the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), copyright protects literary and artistic works, collections of literary and artistic works, and translations, adaptations, and arrangements of music and alterations of literary and artistic works. Individual countries may include additional categories of protected creative works, such as applied art and industrial designs.

The United States is a party to the Berne Convention, and lists eligible subject matter of copyright in Section 102. Subject matter includes: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and audiovisual works, sound recordings, and architectural works.

What cannot be protected by copyright?

Copyright does not protect facts, ideas, methods, or systems. Copyright does not protect works that are not sufficiently creative or works that have not been fixed in a tangible medium of expression. The laws of individual countries may also recognize certain categories of works that cannot be protected by copyright.

In the United States, works created by federal government employees within the scope of their employment are not protected by copyright.

How long does copyright last?

Copyright does not last forever. When a work is no longer protected by copyright, it enters the public domain and may be freely copied and shared without permission. Note, however, that while economic rights in a work may expire, moral rights may continue to exist.

A work may enter the public domain in a number of ways:

1. The term of copyright expires. The term of copyright protection can vary from country to country and so it is possible for a work to be in the public domain in one country but still protected by copyright in another. The Berne Convention establishes a minimum term of life of the author plus an additional 50 years, but many countries have adopted longer copyright terms. For works created today, the United States provides a term of protection for the life of the author plus an additional 70 years. For works of corporate authorship, the term of protection is 95 years from publication or 120 years from creation, whichever expires first. Because copyright law has changed over time, the term of protection for earlier works and certain categories of works (e.g., sound recordings), may look a little different. A great resource on this topic is Peter Hirtle’s Copyright Term and the Public Domain in the United States.
2. Failure to meet formalities. The Berne Convention eliminated formalities as a condition for receiving copyright protection. Prior to the U.S. joining the Berne Convention, however, the law required different formalities to be met in order to receive and retain copyright protection in a work. Failure to meet formalities, such as inclusion of a proper copyright notice and timely registration and renewal, meant the work would enter the public domain.
3. The work was never entitled to copyright protection. Works that do not possess the requisite level of creativity or are not sufficiently fixed cannot receive copyright protection. As previously mentioned, in the United States, works created by federal government employees within the scope of their employment are not protected by copyright.
4. Dedication to the public domain. Copyright owners can also elect to dedicate their work to the public domain, to the extent permitted under the law. Rights holders can state this intention in a clear statement or place a CC0 badge on the material. CC0is a legal tool provided by Creative Commons that can be used to dedicate a work the public domain.

Using another’s copyrighted work: limitations and exceptions

The rights of copyright owners are not absolute. As discussed above, the rights provided to copyright owners are time-limited and only apply to original works of authorship that are fixed in a tangible medium of expression. The law in the U.S. and other countries also provides an additional check on the rights of copyright owners through various statutory exceptions. These limitations and exceptions allow users to use creative works (under certain circumstances) without having to first obtain permission from the copyright owner.

Statutory exceptions may apply to many different situations and may be narrowly constructed. In the U.S., for example, the TEACH Act permits certain performances and displays of copyrighted materials in an online learning environment, if a number of conditions are met. In contrast to these narrowly constructed statutory exceptions, an exception can be written to reflect more flexible guidelines in the use of a work. An example of this in the U.S. is fair use. We’ve written about fair use many times before on this blog, as an important exception that can be used in many different contexts, including research and education.

Like other areas of copyright law, exceptions and limitations can also vary by country. The Three-Step Test is a principle found in many copyright treaties that aims to limit excessive application of copyright exceptions. The Three-Step Test set forth in the Berne Convention permits countries to develop their own legislation to permit reproduction of works (1) in special circumstances, (2) provided the reproduction does not conflict with a normal exploitation of the work, and (3) does not reasonably prejudice the legitimate interest of others.

Finally, suppose you are an instructor based in the United States and you wish to reproduce copies of a work created in France for one of your classes. Do you look to U.S. law or French law? The principle of no extraterritorial application means that, with some exceptions, the national laws of one country are limited in reach to activities that take place within their country. In this case, the instructor who is using the works in the U.S. would look to exceptions under U.S. law.

 

This work by The Ohio State University Libraries is licensed under a Creative Commons Attribution 4.0 International License. Disclaimer: Copyright Services is not legal counsel to the University or any members of the University community. Information provided by Copyright Services is not legal advice.
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By Maria Scheid, Copyright Services Coordinator at Copyright Services, The Ohio State University Libraries.