An education in [C]opyright law: a primer for cyberspace.

Author:Diotalevi, Robert N.
 
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The Law of Copyright

Copyright law has been a hot topic of late. This has never been more evident than with the emergence of the Internet as a teaching tool. The Internet was once a research project. Today it is the greatest computer system in the world. Also known as the net or cyberspace (1), this information super highway offers a tremendous amount of material. The information age has created greater concerns about copyright law.

Myths and Mistakes Concerning Copyright Law

There are many misconceptions about copyright law. For example, many believe that one needs to provide notice in order to possess a copyrighted work (2). Some think that registration is necessary or that photocopying requires express permission from the author in all cases. Also mistakes abound as to the defense of copyrights as well as thoughts of the dreaded "copyright police" coming to arrest against alleged infringement violations (3). Copyright law is simply misunderstood.

There is no physicality to copyright protection. A copyright is a type of intellectual property, that is, an attachment of intangible rights occurs when certain rules are followed. It is reminiscent of our federal or state constitutional protections. For example, even though a constitution could burn in a fire we would not lose the fundamental freedoms contained therein. A closer examination reveals that there are several privileges afforded by copyright law.

What Is Copyright Law?

There are numerous authors who have addressed the subject of copyright law (4). The reason is that copyright has been around for most of our country's existence. In fact, the fundamental basis of copyright law stems from the United States Constitution. In Article 1, Section 8, clause 8, we find that the founding fathers wished to promote science and the useful arts by securing an exclusive right to writings. Unfortunately, the fathers did not explain themselves. Perhaps the most important statute in the area of copyright is the Copyright Act of 1976 (The Copyright Act) (5). It provides the basic framework for all of our present statutes.

Section 106 of the Copyright Act provides the owner of a copyright certain exclusive rights. In general they include five safeguards:

  1. Reproduction of the copyrighted work,

  2. Preparation of derivative works (adaptations) based upon the copyrighted material,

  3. Distribution of the work,

  4. Performance of the work publicly and

  5. Displaying of the work publicly (6).

    Copyright is a legal device. One must carefully examine several factors in order to determine whether or not copyright law is applicable (7). Note that copyright law, for the most part, is federal in nature. The laws of other countries must be respected. This work will not address foreign jurisdictional matters such as the international Berne Convention, but will primarily focus upon the laws of the United States while making reference to certain treaties and related concepts.

    Originality

    A major requirement in copyright law is that the work be original in order to have copyright protection. The work must be independently conceived by its creator. In Feist, the U.S. Supreme Court explained that the primary objective of copyright law is "not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts ..." (8). The case involved the determination of lack of originality in printed, white phone directory pages. However the test is not one of newness. For example, assume a teacher in Orlando writes an article called "Understanding Copyright Law." Another teacher in Omaha has just completed a very similar article with the same name. Neither knows of the other's efforts. Both instructors have created an original work; hence copyright protection is afforded to each of them. Courts would of course look very closely at works that seem to mirror others or outright copy them verbatim as the likelihood of violation is more clear in these circumstances.

    Expressions and Fixation

    A key factor is expression. All authors, including those online, must be aware that copyright law affords protection to expressions rather than ideas (9). Several works that do not enjoy such afforded protection include titles, names, slogans, symbols, designs, lettering, coloring, improvisational speeches, unrecorded performances, concepts, devices, systems, methods and calendars. Many times other legal protections such as trademark, trade name and patent come into play. Examples of copyrightable material include original, tangible forms of poetry, literature, motion pictures, sound recordings, computer programming, music, videos, plays, photographs, drawings and the like. The work also needs to be fixed. It is so when its embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission (10).

    Just about any form of original expression qualifies as a tangible medium. This includes a computer's random access memory (RAM) as well as notes hurriedly penned upon the back of a table napkin. When dealing with cyberspace we need to address a multitude of items (such as downloading or copying onto discs and hard drives). Care must be taken to avoid activities that may constitute a violation of fixed, tangible expressions covered by copyright law (see section IIIA infra). These would include copying and/or using someone's work outright but the problem is that copyright takes so many different forms. For example, it has been argued that that downloading itself constitutes copying and may very well be an infringement. Also, the faxing of a document qualifies as copying. Many agree that mere transmission is not fixation (11). Case law is sparse in these areas. Nevertheless one thing is certain: The Internet will provide many issues for courts to decide as a result of our advancing technological capabilities. And, the legislatures will be kept busy as Congress has grappled over many copyright bills of late. (12)

    Formalities

    Ownership, Registration and Duration

    Ownership rights attach whenever one's expression is fixed in a tangible medium. No other action is necessary to obtain such privileges. Thus, usually the people who create the expression own the copyright thereto, but there are exceptions. For example, if an employee in the course of his or her employment does such a work, the employer owns the copyright of it. Or, if the creator sells the copyright it becomes the property of the business or person who purchases it. Faculty should be careful in reading contracts as well as faculty handbook language that may be incorporated by reference into contractual agreements regarding copyright ownership. There is no controlling case law in this area in light of recent legislation.

    It is often surprising to educators that no major protocol exists to obtain copyright protection. It is no longer necessary to provide notice (discussed below). Registration, however, is advisable. This is the process by which one informs the U.S. Copyright Office of copyright ownership. The Copyright Office provides simple forms (13). All that is necessary are filing out the paperwork, a twenty-dollar fee and a copy of your expression. Registration assists in protecting one's rights, enjoining others and obtaining statutory and civil remedies. In fact, registration is required in order to bring an infringement suit. (14)

    Regarding the length of time that copyright protection lasts on one's work, it used to run for an artist's lifetime plus fifty years. In 1998 President Clinton signed the Sonny Bono Copyright Term Extension Act a measure extending the term an additional twenty years. (15)

    If the work is for hire, that is, it is done in the course of employment or has been commissioned the copyright lasts between 95 and 120 years, depending on the date of publication. Publication includes sales, leasing, freely giving away and public distribution.

    Notice

    Most are familiar with the old copyright notification symbols. They usually contain a "c" in a circular symbol, or the actual word copyright, with the date and name of the owner.

    Example: -- Copyright (or [c]) 1997 Bill Kane

    In March 1989 the United States joined the Berne Convention for the Protection of Literary and Artistic Works. (16) This multinational treaty provided copyright mutual protection and made notice symbols obsolete. By joining Berne the United States and member nations recognize and respect each other's laws at least minimally. There are advocates of the "notice can't hurt" rule, but it remains an optional tool at best.

    The Fair Use Doctrine

    There are several defenses available for those who have allegedly violated copyright. Among these defenses are:

    The work is in the public domain. For example, federal documents are not afforded the protections of copyright law.

    The copyright may be expired, or the holder may have forfeited his or her rights in the work, or

    The copyright holder may have granted another permission to use the work.

    Fair use (17) is also an exception to normal copyright legalities. It allows, in a limited manner, use of copyrighted protected materials in items for purposes of parody, news reports, comedic acts, research and education. The law considers four factors in determining if fair use is applicable as a defense. They are:

  6. The purpose and character of the use, including whether use is of a commercial nature or is for nonprofit educational purposes,

  7. The nature of the copyrighted work,

  8. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and

  9. The effect of the use upon the potential market for or value of the copyrighted work (emphasis added). (18)

    Fair use is on a case by case basis. The case of Campbell v...

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