Session 1

Overview of Copyright Law

Federal copyright law begins in Article I, Section 8, Clause 8 of the U.S. Constitution where Congress is given the power to grant “authors and inventors the exclusive right to their respective writings and discoveries…to promote the progress of science and the useful arts.”

There are 8 categories of works: literary, musical, dramatic, pantomimes/choreographic, pictorial/graphic/sculptural, motion picture/AV, sound, and architectural (17 U.S.C. Section 102(a))

A work must be creative, original, and in a “fixed tangible medium of expression” to be copyrightable. This definition would include works created in digital form, or recorded as a sequence of binary digits. Copyright protection attaches as soon as the work is in a fixed form – there are no further requirements, such as registration, though that will have some additional advantages. The exclusive rights given the creator include the right to reproduce it, distribute it, license it, prepare derivative works, and perform or display the work publicly (17 U.S.C. Section 106).

Electronic access to material involves copying of the original material when a work is entered into a computer by disk or other electronic storage device, a printed document is scanned, images are converted into digital form, when a digital file is uploaded/downloaded to or from a BBS or server, when a file is transferred between users on a network (including the Internet), and when a user has access to a remote computer containing the file (FTP transfer).

Under the “first sale” doctrine, a person who legitimately obtained a copy of the original work has full authority to sell or otherwise dispose of that copy without permission of the copyright owner. If a transfer of the copyright is deemed a sale, then the owner loses all control over that copy, so the more common transfer is under a written license agreement, where there is not a sale, but permission to use it for specific purposes as outlined in the agreement.

A “derivative work” is one based on a preexisting copyrighted work, such as a book translated into a different language, a movie version of a novel, or perhaps a course taught live adapted for online delivery.

Exclusive copyright rights are limited by the concept of “fair use”, which creates a license for criticism, comment, parody, news reporting, teaching, scholarship, or research. The ability of a person to avoid the copyright protection under the fair use doctrine is first determined by a 4-part test: purpose of the use, nature of the copyrighted work, amount or portion of the material used, and the impact of the use on the market value of the copyrighted material. Fair use can be denied if a teacher reproduces copyrighted material of another teacher for use in text materials (see Marcus v. Rowley), or uses a copying service to prepare and distribute anthologies of portions of books and materials, or a school videotaping commercial educational broadcasts for later classroom use. With digital materials being uploaded to servers or BBS and freely accessible to subscribers or the public, the last factor, economic impact on the market value of the copyrighted material, has become the most important in denying fair use (see Playboy v. Frena). In addition, the recent No Electronic Theft Act of 1997 makes unauthorized distribution of copyrighted material valued at over $2500 a computer network a criminal offense, even if the distributor sees no economic gain from the transaction.

If the creator is under a “work made-for-hire” situation, one usually where the creation is within the scope of employment, or under a specific contract to create the work, then the copyright owner is the employer. Examples of a commissioned work are ones that are contributions to a collection, part of an AV program, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas.

A party who has the right and ability to supervise an infringer, and also derives financial gain from the distribution, can also be held vicariously liable for the activity, even if the party did not have actual knowledge of the infringement.

10. Registration of copyrighted works is required before the author can sue for infringement, and, if the registration is done before or within 90 days of the first publication, then the author can recover statutory damages and attorney’s fees for willful infringement. Marking the copy with the © symbol, or the word “copyright” and the year and name of the author will also remove any defense that the infringer thought the work was in the public domain.