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What is Copyright?
Copyright is an area of law designed to provide the creators and distributors of creative materials with an incentive to share their work by promising them the right to be compensated when others use that work in certain ways. Certain rights are granted to the creators of creative works (and sometimes the creators’ employers) in the U.S. Copyright Act (title 17, U.S. Code). If you are not the copyright holder, as determined by the law, you must ordinarily obtain copyright permission prior to re-using or reproducing a particular work. However, permission is not necessary for non-copyright-protected actions, such as reviewing, reading or borrowing literary works or photographs.
What is Protected by Copyright?
The rights in the United States Copyright Act are intended to benefit “authors” of “original works of authorship,” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural and audiovisual creations. This means that virtually any creative work that you may come across, including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials and other printed materials; unpublished materials, such as analysts’ reports and consultants’ advice; and non-print materials, including computer programs and other software, sound recordings, motion pictures, video files, sculptures and other artistic works are almost certainly protected by copyright. Among the exclusive rights granted to those “authors” are the rights to reproduce, distribute, publicly perform and publicly display a work. These rights provide copyright holders control over the use of their creations, and an ability to benefit, monetarily and otherwise, from the exploitation of their works. Copyright also protects the right to “make a derivative work,” such as a movie from a book; the right to include a piece in a collective work, such as publishing an article in a book or journal; and the rights of attribution and integrity for “authors” of certain works of visual art. Copyright law does not protect ideas, data or facts.
In the U.S., the general rule of copyright duration for a work created on or after January 1, 1978, is the author’s life plus 70 years after the author’s death. This is called the “life-plus-70” rule. It is subject to a number of exceptions. Works created by companies or other types of organizations have a copyright term of 95 years.
A provision for fair use is found in the U.S. Copyright Act at section 107. See: www.copyright.gov/title17/. A reproduction (photocopy or digital) of someone else’s copyright-protected work is most likely to be found to be a fair use if it is for one of the following purposes: criticism, comment, news reporting, teaching, scholarship or academic research. To determine whether the reproduction is fair use, the statute looks to an analysis of the circumstances surrounding the use based upon four factors:
- The purpose and character of the use (for example, whether for commercial or nonprofit educational use).
- The nature of the copyright-protected work.
- The amount and substantiality of the portion used.
- The effect of the use upon the potential market for or value of the copyright-protected work.
Although some see fair use as a solution to many of their reproduction activities, fair use is less effective and helpful than it may appear. Fair use is an ambiguous notion and the law does not state exactly what may be used without obtaining permission. As such, individuals who are non-lawyers may often need to be interpreters of the law, and answers as to how much reproduction may still be considered fair use often remain unclear.
The bottom line is that fair use requires a risk assessment as to whether re-use under certain circumstances may be considered fair use. Acknowledging the source of a work, for instance, is not a substitute for obtaining permission. In order to avoid any copyright risk, ABC permits uses of short quotes from works. Otherwise, permission procedures as set out in this policy should be followed.
Copyright and Foreign Works
The U.S. is a member of the two leading copyright conventions, the Berne Convention and the Universal Copyright Convention. As such, when ABC uses a copyright-protected work from almost any other country, U.S. copyright law applies to the use of that work, assuming the use takes place in the United States. Licensing intermediaries such as Copyright Clearance Center may have reciprocal licenses to allow the use of materials from other countries, which can simplify the permission process a great deal.
Copyright and Digital Works
Any non-digital content that is protected by copyright is also protected in a digital form. For example, print books are protected by copyright law, as are electronic books. A print letter is protected by copyright law, as is an e-mail letter (both generally owned by the author). When obtaining permission to use works on the Web, always obtain global or worldwide rights, as most Web uses of content are on a global basis.