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Copyright Law
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Copyright affects everyone.
First, The Basic Scheme
A Few Particulars
Original works of authorship fixed in a
tangible medium of expression
Leaving facts and ideas free for public use
supports copyright's achievement of its purpose, if the public can gain access to the
work.
Today, it begins at the moment of fixation in
a tangible medium of expression and ends at the expiration of 70 years after the death of
the author. Different rules apply to
older works, however, and there are special rules for works-for-hire.
When copyright terms were shorter and it
required a definitive act to bring a work under federal protection, copyright law's
balance favored public access and use (the public domain) more than it does today. These
changes in the law evidence a strong shift in that balance.
Owners have exclusive rights to make copies,
create derivative works, distribute, display and perform works publicly. Certain artists
have rights of integrity and attribution (moral rights) in original works of art or
limited edition prints (200 or fewer).
These exclusive rights are an important part of the way copyright law achieves its
purpose. Along with the term of protection, they provide an incentive to authors to
create. Exercising these rights has typically required that the copyright owner control
copies. Controlling analog copies was not that hard, but digital copies are another story!
Controlling copies, however, is not the only way to provide an incentive. As controlling
copies becomes synonymous with controlling access, it becomes more important to find other
ways to provide an incentive.
The limits the law places on the ability of a
copyright owner to control all uses of his work are part of the law's balance. Those
limits of special importance to educators include:
These limitations on copyright owners' rights, and others not mentioned here, are critical to the achievement of copyright's purpose. They are just as much a part of how copyright law improves our society by increasing knowledge as the incentive to authors.
Ownership in Detail
Fair Use in Detail
Both of these functions of fair use strongly support the achievement of copyright's purpose by permitting certain uses of works that do not significantly affect the owner's incentive. The fair use statute builds in to the fair use test ample consideration for the copyright owner's interests.
The four factors:
Fair use is not a blanket exemption for educators. Fair use permits certain uses of certain works for certain purposes, taking the interests of the copyright owner into consideration in the evaluation of each of the four factors.
Getting Permission
If you plan to create distance learning materials for limited use within your university, reliance on fair use is appropriate. If, on the other hand, you think you may commercialize the product, reliance on fair use should be quite limited.
only applies otherwise to nondramatic, nonaudiovisual literary works and music
Libraries and museums have not typically
acquired copyright along with the material artifact.
Most
CONFU participants could not agree on the scope of fair use for
electronic reserves. Copyright owner participants called into question whether electronic
reserves without permission are legal at all.
". . . ALA does not recommend formal guidelines
for fair use in a digital
information environment at this time."
"ALA will, together with other library
associations, investigate the development
of guiding principles and examples of current practices in the appropriate use of,
and in licensing agreements for, digital information resources."
American Geophysical Union v. Texaco, Inc., C.A.2 (N.Y.) 1994, 37 F.3d 881, amended and superseded 60 F.3d 913, certiorari dismissed 116 S.Ct. 592, rehearing denied
Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 823 (Fed. Cir. 1992)
Basic Books v. Kinko’s Graphics, 758 F.Supp. 1522 (S.D.N.Y. 1991)
Campbell v. Acuff-Rose Music, Inc., U.S. Tenn. 1994, 114 S.Ct. 1164, on remand, 25 F.3d 297
Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991)
Committee for Creative Nonviolence v. Reid, 490 U.S. 730 (1989)
Erickson v. Trinity Theatre Inc., 13 F.3d 1061 (7th Cir 1994)
Los Angeles Times v. Free Republic, No. 98-7840 MMM(AJWx) (C.D.Cal), Nov. 9, 1999
Princeton University Press v. Michigan Document Services, Inc., C.A.6 (Mich.) 1996, 99 F.3d 1381, certiorari denied 17 S.Ct. 1336
Rogers v. Koons, 960 F.2d 301(2d Cir. 1992)
Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984)
Thomson v. Larson, 147 F.3d 195 (2d
Cir (N.Y.)1998)
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