Understanding Copyright

This section provides a general overview of the basics and fundamental concepts of U.S. Copyright Law.

Background

Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) 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 This protection is available to both published and unpublished works.

Copyright is one of the areas of federal law that most directly affects the educational mission of the university. Faculty and students stand on both sides of the copyright equation. On the one hand, they create copyrighted works, e.g., papers, articles, software, and musical compositions, and they need to manage those rights properly. They need to know how to make those works available to the public, while ensuring that they retain the rights they need to engage in future activities. On the other hand, faculty and students use copyrighted works created by others, and they need to make sure that their uses do not infringe copyright. Because faculty and students stand on both sides of this complex equation, understanding of the fundamental principles of copyright law is recommended.

Copyright law gives an author of a work a bundle of exclusive rights to do and to authorize others to do the following with the work:

  • To reproduce the work
  • To prepare derivative works based on the work
  • To distribute copies of the work to the public
  • To perform the work publicly
  • To display the work publicly

These rights, however, are not unlimited. The law establishes certain exceptions from copyright liability. If the work enjoys copyright protection and there are no exceptions available, permission must be obtained from the owner to use the work. Using a copyrighted work without permission may constitute copyright infringement, subjecting the user to significant civil and even criminal penalties.

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Works Covered Under Copyright

Copyright protection covers both published and unpublished works in the following categories:

  • Literary works (including computer programs and databases)
  • Musical works, including any accompanying words
  • Dramatic works, including any accompanying music
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural works

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Works Not Covered Under Copyright

Several categories of material are generally not eligible for federal copyright protection. These include:

  • Facts
  • Ideas, methods, or systems
  • U.S. government works
  • Principles, concepts, procedures or processes
  • Blank forms
  • Computing and measuring devices
  • Listings of ingredients in formulas, recipes, compounds, and prescriptions
  • Names, titles or short phrases
  • Public domain works
  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

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When Does Copyright Take Effect?

Copyright exists from the moment your work is fixed in a tangible medium of expression, and persists regardless of whether or not you (1) include copyright notice, or (2) register a claim with the U.S. Copyright Office.

Copyright Registration

It is not necessary to register a work with the U.S. Copyright Office in order for a work to be protected under copyright law. However, registration does provide several important benefits.

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Copyright Notice

Use of a copyright notice is no longer required under for works created in the U.S. after April 1, 1989. The work is still considered to be protected by copyright even if it does not have a notice. However, if you are distributing your works to the public, you may wish to include a notice to prevent others from incorrectly thinking that the work is not subject to copyright.

Notice for visually perceptible copies should contain all of the following three elements:

  1. The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”;
  2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient; and
  3. The name of the owner of copyright in the work.
    Example: © 2014 Jane Doe

An additional option is to attach a Creative Commons license, which allows you to make clear—with greater specificity than standard “© XXXX Name” language—what uses of your work are permitted. Or you might skip the CC system and simply write your own statement on your work, spelling out the uses you wish to permit.

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Length of Copyright Term

Length of copyright term for a work varies and is contingent upon when the work was created, and whether and where it was published. Currently, the basic term of protection is life of the author plus 70 years. If a work is no longer protected by copyright, it is considered to be in the public domain. All works published in the United States before 1923 are in the public domain.

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Ownership of Copyright

Copyright can be transferred or licensed for use by others. Copyright can also be inherited by family members upon the death of a copyright holder. Copyright holders can retain some rights and transfer or license other rights. For example, an author of a scholarly works can transfer the copyright to a publisher, but retain some rights to allow for re-use of the work in the future.

Exceptions and Limitation

As noted above, there are a number of exceptions to copyright. The most frequently applied exceptions are for teaching and scholarly use as covered in the following sections.

Fair Use – Section 107

Fair use allows limited copying of copyrighted works without having to seek the author/copyright holder’s permission. Section 107 contains a non-exclusive list of purposes for which the use of a copyrighted work would be considered “fair,” such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. Determining whether a proposed use is fair is case specific, and requires consideration of the following four factors:

  1. The purpose and character of the use, including whether such use is of a 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 following questions can help you weigh the outcome of those four factors:

Are you planning on using the work in a different way, or for a different purpose, than the original creator? In copyright terms, is your use “transformative”?

Are you using an amount of that work that is narrowly-tailored to your new purpose?

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Special Rules for Libraries and Archives – Section 108

Section 108 of the copyright law provides libraries special privileges for uses related to preservation and for lost, stolen, damaged, or deteriorating works; copies for library patrons; and copies for other libraries through interlibrary loan.

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Classroom Use – Section 110(1)

Section 110(1) permits the performance or display of a work by instructors or students in the course of face-to-face teaching activities in a classroom. This, for example, allows a professor to show a film in class. This provision does not apply to uses in distance education, which must be assessed under section 107 (fair use) or a narrower, more complex provision of section 110.

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Copyright Infringement and Plagiarism

Plagiarism is the act of taking ideas or expression (including paraphrasing) from another source without proper attribution. Copyright infringement is violating an exclusive right without authority of the copyright holder or the law (i.e., an exception like fair use). While the two often overlap, they are different concepts, and can involve different situations. Moreover, the penalties for plagiarism and copyright infringement differ. Copyright infringement is a civil, and in some cases, a criminal matter, whereas plagiarism is enforced by institutional code and is considered unethical.

Example of plagiarism without copyright infringement:
Example of copyright infringement without plagiarism:
Example of copyright infringement and plagiarism:
Copying a paragraph from an 1835 book in an article without attribution. Copying a 2001 journal article with full attribution on a web site without securing permission from the copyright owner. Copying several pages of an article in a dissertation without attribution.

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NOTE: The Office of the Vice Chancellor and General Counsel (OGC) manages the legal affairs of Washington University in St. Louis. Libraries staff offer general information but do not provide legal advice specific to your situation.