Copyright Issues

  Main Page

  Readings

  Activity 1

  Activity 2

  Activity 3

  Activity 4

  Activity 5

  Quiz

  Feedback

  Teacher's Guide

 

  

Copyright Issues: Readings


"Imitation isn't the sincerest form of flattery--it's plagiarism."
                - Red Skelton

The Basics
Inherent in the concept of copyright is the notion that you own and have control over anything that you create. Examples of copyrighted work might include an entry in your diary, the geology lesson plan you created last year, the photograph you took of the Grand Canyon on your summer vacation, the email you sent to your best friend, the video you shot of your daughter's birthday party, the ballet that you choreographed for your son's ballet class (provided that you recorded it in some way!), or the recording you made of your class singing The Star-spangled Banner.

The law holds that as soon as you create these works and fix them into a permanent medium, you own the copyright on them. That's right; you don't need to include the symbol © or the word "copyright" in the document. Your work is automatically protected by copyright. The law also holds that the copyright of work produced while under employment belongs to the employer. In one of the above examples, the geology plan that you created last year, the lesson plan is certainly under copyright protection; however you might not be the copyright holder.

This also means that anything created by somebody else is under copyright--unless the copyright has expired. There are fair use laws that allow for limited use of copyrighted materials, but these laws are often misunderstood and abused.


The Law
Congress, in pursuit of the aims stated in the Constitution, has gone to great lengths to define and protect the copyright of creative works.

The Constitution grants Congress the authority 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." By granting creators a special property right, known as copyright, for the fruits of their labors, the government protects the economic incentive to be creative.

Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works, and exists as soon as the work is "expressed", even if the creator of the work takes no further steps to establish ownership. This means that as soon as you write an original text, draw a picture, take a photograph, record a sound or a movie, you have a copyright that covers the resulting work.

The Copyright Act, generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  1. Reproduce the copyrighted work in copies or phonorecords.
  2. Prepare derivative works based upon the copyrighted work.
  3. Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
  4. Perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works.
  5. Display the copyrighted work publicly, 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.

It is illegal for anyone to violate any of the rights provided by the Act to the owner of copyright. These rights, however, are not unlimited in scope. In particular, the doctrine of Fair Use allows for limited reproduction of copyrighted materials, as described below.


Creating a Copyright
Any time you fix an original expression in a fixed medium, then you have a copyright on that work. But what is meant by an original expression? And what is a fixed medium?

Expression: A fact or idea cannot be covered by copyright, but the unique description of an idea can be. An author cannot claim ownership of the idea of a boat filled with animals and a huge rain that flooded the earth, but if he writes a story about Noah's Ark it becomes his property, protected by copyright.

Original: The work must originate from the author who created it and not someone else; it must be the product of the creator's own creative labor. Copying the work of someone else is not an original enough expression on which to justify asserting a copyright on the finished product.

Fixed Medium: The work must be captured in some permanent medium in order to carry a copyright. A speech that is given and never recorded is not covered by copyright, but if it is written down (even in note form from which the speech is read), saved on a teleprompter screen, or recorded by a TV camera, then the speech is copyrighted. Recent court decisions have determined that a computer's memory or hard disk is a fixed medium; this means that Web pages, email, chat room conversations and similar Internet communications are covered by copyright.

The creator of a work does not have to take any further steps to protect the copyright of his work. A copyright symbol is not required, nor is any declaration of copyright.



Penalties for Copyright Violation
The owner of a copyright can sue the violator for damages (usually computed by looking at the actual harm incurred as a result of the infringement, although in cases there are statutorily-imposed minimums). Copyright violation is also a federal crime, which means that violating a copyright could make the infringing party subject to fines, jail sentences, or both.

In a suit for copyright infringement, a court has the power to issue an injunction to prevent people from making or distributing further copies of a work. A court may also impound all copies claimed to have been made in violation of the owner's copyright. The copyright act also states that the copyright owner can collect either one or the other of the following monetary awards:

  1. Any actual damages the copyright owner has sustained, as well as any profits the copyright infringer has made.
  2. An amount of money to be determined by the court, which can range from $500 to $20,000 for an infringement of any one work. If the court finds that the infringer acted willfully, the court can increase the award to $100,000. If the infringer was unaware that he or she was violating someone else's copyright, the court can award as little as $200.


Fair Use
The fair use provision of the Copyright Act allows reproduction and other uses of copyrighted works under certain conditions for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Additional provisions of the law allow uses specifically permitted by congress to further educational and library activities.

Under the Copyright Act four factors are to be considered in order to determine whether a specific action is to be considered a "fair use."
  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Nowhere in the Copyright Act is it suggested that fair use includes the publication of a copyrighted work, even publication on an educational web page.



Photocopying under the Fair Use Doctrine
The legislative history of the Copyright Act of 1976 provides teachers and librarians with guidelines for the fair use of copyrighted materials reproduced from books and periodicals for classroom use.
  • Single copying for teachers:
    A single copy may be made of any of the following by a teacher for his or her scholarly research or use in teaching or preparation to teach a class: A chapter from a book; an article from a periodical or newspaper; a short story, short essay or short poem, whether or not from a collective work; or a chart, graph, diagram, cartoon or picture from a book, periodical, or newspaper.
  • Multiple copies:
    Multiple copies for classroom use (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that:
    1. The copying meets the tests of brevity and spontaneity as defined below.
    2. Meets the cumulative effect test as defined below.
    3. Each copy includes a notice of copyright.

Brevity:

  1. Length: Below are direct quotes from the published guidelines.
    1. Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
    2. Prose: Either a complete article, story or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or 10 percent of the work, whichever is less, but in any event a minimum of 500 words.
  2. Each of the numerical limits stated above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.
  3. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
Spontaneity:
  1. The copying is at the instance and inspiration of the individual teacher.
  2. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative Effect:
  1. The copying of the material is for only one course in the school in which the copies are made.
  2. Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
  3. There shall not be more than nine instances of such multiple copying for one course during one class term.


Copyright of Software
Computer programs are covered by copyright protection. No fair use policy pertains to the copying of computer software. Federal law does state, however, that the owner of a copy of a copyrighted program does not infringe the copyright by making a new copy for archival (backup) purposes only.

Making a copy of a piece of software is so easy to do that many people are amazed that this simple act can amount to a violation of the law. Because it is so easy to copy computer software, schools must be especially careful to educate students and teachers about illegal copying. In 1992 the US Departments of Justice and Education jointly issued a report calling on the nation's schools to expand their teaching of the ethical use of computers.


Works in the Public Domain
Works in the public domain include those whose copyright has expired, or those whose author has expressly declared to be in the public domain. If a work is in the public domain, it may be distributed freely in both electronic and print form. (note: it is dangerous to assume that a work is in the public domain simply because it is popular or ubiquitous. For example, the song "Happy Birthday" is not in the public domain.

Federal law now states that all works created on or after January 1, 1978, have copyrights that last until fifty years after the death of the author. If an author has been dead for fifty years, then any materials produced by that author are considered to be in the public domain.

If authors explicitly state that they intend for their work to enter the public domain, there are no restrictions whatsoever on the distribution, duplication or other manipulation of their work. Be wary, however, of harboring the mistaken assumption that the lack of a copyright notice means that a computer program, an image, a piece of writing or a recording is in the public domain. If you do not see language to that effect, you should assume that the program, image, writing or recording is under copyright protection and you should refrain from using it in ways that would infringe upon the author's rights.



Once you have reviewed these sections,
return to the main page for additional
readings and exercises
  
The contents of the Web Institute Web Site, including the On-Line Curriculum, Web Tank, and Session Notes, are Copyright 1999-2000, Graham School of General Studies, University of Chicago. No one may print, copy, or otherwise reproduce these materials without the express written permission of the Director of Education Programs at the Graham School. All rights reserved.

The chapters from Curriculum Webs: A Practical Guide to Weaving the Web into Teaching and Learning are Copyright 1999-2000, Craig A. Cunningham and Marty Billingsley. No one may print, copy, or otherwise reproduce these materials without the express written permission of the authors. All rights reserved.