Article I section 8 of the Constitution provides the basis for all copyright law in the United States:
The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Congress did their thing and passed successive version of laws regarding the rights of authors and the rights of other to make copies that have been recorded in Title 17 of the United States Code.
The current 2003 version 290 page pdf document published as Circular 92 of Title 17. This document includes all sorts of law but seems based primarily on the 1976 Copyright Act the Digital Millenium Act and a few foreign trade agreements like GATT and NAFTA.
Works in the public domain can't be copyrighted and include those published before 1923, US Government publications, and other
documents as their copyrights expire. In 1976 Congress decided 70 years
after the author(s) death was appropriate. Lolly Gasaway at UNC offers a bit more about works passing into the public domain in a nice table showing all the cases.
What
Is Copyright?
Simply put, "copyright
is a legal device that provides the creator of a work of art or literature,
or a work that conveys information or ideas, the right to control how
the work is used." Stephen Fishman, Esq. The Copyright Handbook, 1996.
The intent of copyright
is to advance the progress of knowledge by giving an author of a work
an economic incentive to create new works.
What Can be Copyrighted?
Tangible, original
expression. This means, for example, that a verbal presentation that
is not recorded cannot be copyrighted. However, anything that is tangible
can be copyrighted. There are three fundamental requirements for something
to be copyrighted:
- Fixation:
- The item
must be fixed in some way. The fixation may be just about anything.
For example, a piece of paper, a computer disk, a audiotape,
or a videotape are all legitimate forms of fixation.
- Originality:
- The work
must be original. Originality includes a novel or a student's
e-mail message to a professor. Both are considered examples
of original expression.
- It is
not necessary for the work to be completely original. Works
may be combined, adapted, or transformed in new ways that would
make them eligible for copyright protection.
- Minimal Creativity:
- The work
must include something that is above and beyond the original.
Verbatim use is not considered original. Reference to the original
work that is used to discuss a new concept would be considered
original, however.
- Creativity
need only be extremely slight for the work to be eligible for
protection.
What Cannot be
Copyrighted?
- Works in the
public domain:
- Ideas
are in the public domain. (this one gave fits to the early computer programmers as their algorithms were considered ideas...they tried patents and then used copyright on the entire programs. Mostly they just tried to keep their stuff secret by not distributing the source code.)
- Facts
are in the public domain.
- Words,
names, slogans, or other short phrases also cannot be
copyrighted. However, slogans, for example, can be protected by
trademark law.
- Blank
forms.
- Government
works, which include:
- Judicial
opinions.
- Public
ordinances.
- Administrative
rulings.
- Works
created by federal government employees as part of their
official responsibility.
- Works
for which copyright wasn't obtained or copyright has
expired (extremely rare!).
It is a common misperception
that state employees and contractors performing work on behalf of the
federal government cannot copyright their work. Unless it is explicitly
stated in the contract between the government and a contractor, federal
government contractors are permitted to copyright their works as can
state employees.
What Does Copyright
Protect?
Copyright provides
authors fairly substantial control over their work. The four basic
protections are:
- The right to
make copies of the work.
- The right to
sell or otherwise distribute copies of the work.
- The right to
prepare new works based on the protected work.
- The right to
perform the protected work (such as a stage play or painting) in
public.
An Introduction
to Fair Use
What is Fair Use?
Fair use is the
most significant limitation on the copyright holder's exclusive rights.
Deciding whether the use of a work is fair IS NOT a science. There
are no set guidelines that are universally accepted. Instead, the individual
who wants to use a copyrighted work must weigh four factors:
The purpose and
character of the use:
- Is the new work
merely a copy of the original? If it is simply a copy, it is not
as likely to be considered fair use.
- Does the new
work offer something above and beyond the original? Does it transform
the original work in some way? If the work is altered significantly,
used for another purpose, appeals to a different audience, it more
likely to be considered fair use.
- Is the use of
the copyrighted work for nonprofit or educational purposes? The use
of copyrighted works for nonprofit or educational purposes is more
likely to be considered fair use.
The nature of the
copyrighted work:
- Is the copyrighted
work a published or unpublished works? Unpublished works are less
likely to be considered fair use.
- Is the copyrighted
work out of print? If it is, it is more likely to be considered fair
use.
- Is the work
factual or artistic? The more a work tends toward artistic expression,
the less likely it will be considered fair use.
The amount and
substantiality of the portion used:
- The more you
use, the less likely it will be considered fair use.
- Does the amount
you use exceed a reasonable expectation? If it approaches 50 percent
of the entire work, it is likely to be considered an unfair use of
the copyrighted work.
- Is the particular
portion used likely to adversely affect the author's economic gain?
If you use the "heart" or "essence" of a work,
it is less likely your use will be considered fair.
The effect of use
on the potential market for the copyrighted work:
- The more the
new work differs from the original, the less likely it will be considered
an infringement.
- Does the work
appeal to the same audience as the original? If the answer is yes,
it will likely be considered an infringement.
- Does the new
work contain anything original? If it does, it is more likely the
use of the copyrighted material will be seen as fair use.
These excerpts starting with "What is Copyright" are from a copyrighted webpage maintained by the University of Maryland University College as guidelines for their faculty.(click link to see their site).