Copyright protects the rights of the creators of original works, whether published or unpublished, including literary, dramatic, musical, artistic, and other intellectual works. This right was first established by the Constitution, " 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." (Article 1, Section 8, U.S. Constitution) Although Congress established no particular time limits, several copyright acts since have. Copyright may belong to a single person, multiple persons, or a corporation (works made for hire). Since 1989 the copyright symbol, ©, is no longer necessary, although it affects the remedies a copyright holder may seek for infringement.
Rights of Owners
Section 106 of the Copyright Act of October 19, 1976 (Title 17 United States Code) grants certain rights to copyright owners that affect educators who want to reproduce or use materials in their teaching.
§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
Works Not Protected
There are certain types of works that do not qualify for copyright protection. These include:
- Works that have not been placed in a fixed format. For example, improvisations or musical performances that have not been notated or recorded.
- Title, names, short phrases, or slogans; variations of lettering or coloring; listings of ingredients or contents.
- Ideas, procedures, methods, systems, processes, discoveries, or devices, as distinguished from description, explanation, or illustration.
- Works consisting entirely of information that is common knowledge. For example, standard calendars, height and weight charts, or lists or tables taken from public documents or other common sources.
- Works published by the U. S. Government. Keep in mind that works sponsored, but not published by the Federal Government may have copyright protection. Works published by state governments may or may not be protected; the law varies from state to state.
Copyright protection exists from the time the work is created in fixed form, but the limits vary according to when the work was first published, Lolly Gasaway has produced an excellent chart that demonstrates when works enter the public domain. The chart has been updated to include the extensions made by the Term Extension Act, PL 105-298 (Sonny Bono Act).
Works created before January 1, 1978
- Copyright began either on the date the work was published with a copyright notice © or on the date it was registered.
- First term of copyright lasted 28 years.
- If it was renewed during the 28th year, the renewal term is 67 years.
- All works copyrighted between January 1, 1964 and December 31, 1977 were automatically renewed.
Works created on or after January 1, 1978
- Works of single authorship -- life of author, plus 70 years.
- Joint works -- 70 years after the last surviving author's death.
- Works made for hire, anonymous and pseudonymous works -- 95 years from publication or 120 years from creation, whichever is shorter.
- In general, for works after 1978, assume it is protected even if the © does not appear.
Special Rules for Unpublished Works
- Created after January 1, 1978, standard rule applies.
- Created before January 1, 1978, but never published.
- Protected until December 31, 2002 or
- Life of the author plus 70 years.
The North American Free Trade Agreement Act (NAFTA), P.L.103-182, restored copyright to films that were in the public domain due to copyright compliance problems.
The General Agreement on Tariffs and Trade (GATT), P.L. 103-465, restored copyright to foreign works that had fallen into the public domain in the United States because of copyright registration problems, but were still protected by copyright in the original country.
If a work from a World Trade Organization (WTO) country is less than 75 years old and is still protected in the original country, copyright was automatically restored when GATT took effect in the United States.
Authors and creators must also remember that the United States is a signator of the Berne Convention so that if you, for example, plan to publish a book in a foreign country of works that are public domain in the United States, but those works would not be public domain in the country of publication, you would be infringing on foreign copyright laws. Remember too that laws vary from nation to nation.
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) was signed by President Clinton on October 28, 1998. In addition to implementing two World Intellectual Property Organization (WIPO) treaties, it also addresses several important issues relating to education: in particular, Title II, the "Online Copyright Infringement Liability Limitation" and Title IV, which contains provisions relating to distance education and exceptions in the Copyright Act for libraries.
Summarized here are the implications of the Act for educational institutions. For more complete information refer to the DMCA itself, or Appendix V. (Additional Provisions of the Digital Millennium Copyright Act) of Title 17.
Title II establishes limits on copyright infringement liability for online service providers. Its broad definition of "online service providers" includes colleges and universities. It also details "notice and takedown" procedures for material on Web sites that reside on servers maintained by colleges and universities, as well as on servers of other online service providers. The College of DuPage has provided the public with the mechanisms to contest material posted on COD servers. The information is located in the Legal section of the College's website. This Part of the Act was incorporated into Title 17 U. S. Code as:
§ 112 - Limitations on liability relating to material online (e) LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL INSTITUTIONS. - (1) When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) such faculty member or graduate student shall be considered to be a person other than the institution, and for purposes of subsection's (c) and (d) such faculty member's or graduate student's knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if --
(A) such faculty member's or graduate student's infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student;
(B) the institution has not, within the preceding 3-year period, received more than two notifications described in subsection (c) (3) of claimed infringement by such faculty member or graduate student , and such notifications of claimed infringement were not actionable under subsection (f); and
(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with the laws of the United States relating to copyright.
Title IV makes provisions for a study on copyright and distance education. It directs the Copyright Office to consult with the effected parties and make recommendations to Congress. Although the Report on Distance Education has been completed, amendments adding the issues are still being considered, refer to New Developments for updates. Title IV also amends the exemption for libraries and archives to accommodate digital technologies in the preservation of materials. It increases the number of archival copies from one to three, providing those copies are only made available on library premises. It also allows libraries to archive a work in a new format providing the original format is obsolete (i. e. the machine used to access the copy is no longer in production or no longer available in the commercial marketplace).
Remember, these same rights which we, as educators, may find constricting in teaching, protect the intellectual property that we produce.
The information on this site is intended to inform the faculty, staff and
students at the College of DuPage about copyright and to provide guidelines
for using and creating copyrighted material. The information should not
be considered legal advice.
For more information contact the Library's Copyright Liaison