Copyright: An Overview
Imagine teaching language arts with no examples of stories or poems to share with students. Or history with no written record of what happened in the past. Or fine arts without ever seeing a painting or hearing a note of music. Such a blank slate would make education impossible. Knowledge is, necessarily, built upon the achievements of those who came before us.
The products of these creative minds are known collectively as intellectual property –– a term that covers all the novels and poems, scholarly essays and biographies, paintings, photographs, and recordings that you provide to students as examples from which they learn and upon which they build a foundation for their own interpretations and insights. Intellectual property is the fuel of classroom creativity, inspiring students to expand their ingenuity and ambitions. But intellectual property is still property, and while students should be encouraged to take inspiration from it, they must also be taught to respect the rights of those who created it.
Those rights are spelled out in the laws of copyright. And because you use intellectual property in the classroom, it’s important to understand copyright law and how it applies to you and your students. Especially today, when computers and the Internet have enabled seemingly unrestricted access to intellectual property, educators need to know what’s okay and what’s off-limits when it comes to copyright. This guide can help you find the answers.
What Is Copyright?
Federal copyright law dates back to 1790, when George Washington signed the first Copyright Act. Under today’s law, copyright is defined as the bundle of exclusive rights granted to the creator of an original work of authorship that has been fixed in a tangible form –– that means fixed in a physical medium, such as paper, paint, film, or in digital code. Spontaneous speech or musicianship that is not recorded –– a jazz solo, for instance –– is not protected by copyright.
Copyright grants the creator(s) exclusive control over the:
• reproduction of their work;
• creation of derivative works that are based on their work;
• distribution of their work;
• public performance of prose, poetry, music, plays, musicals, choreographic works, pantomimes, films and other audiovisual works and, in the case of sound recordings, performance by digital and satellite transmission; and
• public display of visual and graphic art, sculpture, prose, poetry, music, plays, musicals, choreographic works, pantomimes, films, and other audiovisual works.
Generally, the person or persons who create the work own the copyright (see exceptions in the FAQ section).That means the author of a book, the artist who paints a landscape, the photographer who shoots a portrait, the songwriter whose latest hit tops the charts, the filmmaker whose work appears on DVD, and the pundit who blogs on the Internet are all copyright owners — along with your students, when they create an original work in the classroom or elsewhere.
In the United States, a work is automatically copyrighted once it has been fixed in tangible form.The work does not need to be registered with the Copyright Office. However, there are a number of legal benefits available only to works that have been registered, primarily the ability to recover not just actual damages but statutory damages when copyright is infringed.
The History of Copyright
Laws for protecting intellectual property first appeared in the 1400s, when the printing press was invented and written works could more easily be copied without permission. By the mid-1500s,Venice was offering copyright protection for printed works and visual works as well. Our legal heritage on copyright stems from 1710, when England’s Statute of Anne guaranteed copyright throughout the British Empire, inspired in part by the English philosopher John Locke’s argument that property rights derive from one’s own labor. Not coincidentally, as the right of authors and publishers to largely determine the fate of their works became increasingly well established over the years, more works were created and published than ever before.
In the United States, copyright has been a basic right from the start. Every state had copyright laws when our country declared independence, and when the Founders framed the Constitution, copyright became a constitutional right as well. Article I, Section 8, of the U.S. Constitution, called the “Progress Clause,” extends to “Authors and Inventors” an “exclusive Right to their respective ritings and Discoveries”— the only time the word “right” is actually used in the original document. The idea was to “promote the Progress of Science and Useful Arts,” and the very first Congress put that “exclusive right” into law.
Since then, the United States has led the world in the realm of creative achievement. Several revisions have been made to copyright law over the years, expanding the types of works covered by copyright as technologies advanced (sound recordings, motion pictures, software), and ensuring that our laws conform with international norms and treaties.
Copyright has remained a part of our law and our culture for so long because it is vital to the promotion of artistic and creative works for all to enjoy, to the creation of new technologies and new works of scholarly research, and to all of us having a vast array of cultural choices.
The digital age brings a multitude of opportunities for the creators of copyrighted works. New business models are being developed every day to produce, distribute, and market creative works. We tend to hear a lot about how modern technology is harming the creators of copyrighted works –– and plenty of harm does occur –– but that doesn’t imply that technology itself is harmful. Ensuring the rights of copyright owners never has stopped individual creators from taking advantage of new technologies to bring us creative works we can enjoy in ways we never imagined. Technology and copyright are not at odds with each other but inspire each other to greater heights.
Copyright in the Classroom
For teachers, the most important concept in copyright law is probably fair use. This is a provision in the U.S. Copyright Act that allows for reproduction of copyrighted works without the copyright owner’s permission under certain specific circumstances, including when the work is being used for “teaching, scholarship, and research.” But “fair use” is not a permission slip allowing teachers and students to copy anything any time they want. The law sets four criteria for determining whether unauthorized use of copyrighted materials can be considered “fair”:
1. Is the material being used for commercial or for nonprofit educational purposes?
2. Is the material merely factual or a work of talent and imagination? Outdated or still available?
3. What proportion of the material is being copied?
4. What is the effect on the potential market value of the material?
All four of these criteria must be considered before unauthorized use of a copyrighted work can be considered “fair.” And in most cases, you and your students’ use of copyrighted material will meet most, if not all, of the criteria. But “fair use” does not permit making unauthorized copies of copyrighted material for professional use. Often guidelines are printed for teachers in educational materials or can be found on commercial products. For example, software usually has a “shrink-wrap” label defining the rights that accompany use of that software. It might permit you to load it on more than one computer, for example, but you likely won’t then be able to give a copy of the software to another teacher, and students won’t be able to make copies for home use.
Another copyright topic of special interest to educators is plagiarism. Under the law, plagiarism refers to copying something word-for-word and presenting it as one’s own work. Most people, and most students, know that this is wrong — in fact, it’s illegal. In the classroom, however, plagiarism has a broader meaning, encompassing not only word-for-word copying but any use of another’s intellectual property without attribution. We call this academic plagiarism, and within the academic community it can be punished severely. Students should learn early to avoid academic plagiarism by citing the sources they use in their schoolwork, whether they quote the source word-for-word or not. Facts, ideas in tangible form, even lines of thought taken from the work of another should all be credited in a note or on a “works used” page.
Giving credit is not the same thing as getting permission, of course, and educators may need to be mindful of this distinction when borrowing from copyrighted material to create a lesson plan or website. Trained to cite our sources, we may assume that by acknowledging the copyright owner of a photo, map, diagram, or video clip, we have complied with the law. But in fact, apart from the special circumstances of “fair use,” the law requires getting permission from the copyright owner. Remember, the copyright owner retains rights over reproduction, the creation of derivative works, distribution, public performance, and public display.
Permission is obtained by contacting the copyright owner and may involve paying a small fee for a license to use the material. The library at the Copyright Clearance Center, www.copyright.com, includes an extensive list of copyrighted works that may be used with permission by paying a one-time fee.
FAQ: Frequently Asked Questions
First, the basics.
What is copyright?
Copyright is the legal protection granted to the creator of an original work of authorship fixed in a tangible form.
Is it necessary to publish a work before it can be copyrighted?
No. Both published and unpublished works can be protected by copyright.
What kinds of work does copyright protect?
According to the Copyright Act, works of authorship that qualify for copyright protection include: literature, poetry, and other literary works; musical compositions, lyrics, and sound recordings; newspaper and magazine articles; dance choreography; visual artworks (pictures, graphics, and sculptures); films and television programs; architectural plans; computer programs; website content; databases, and other compilations and collections.
Who owns the copyright in a work?
Generally, the person who creates the work owns the copyright. When a work is created by more than one person, all those persons own the copyright, unless there is a written agreement that delineates who owns it. Exceptions: When an employee or contractor creates a copyrighted work as part of job responsibilities, the employer owns the copyright; these are considered “works made for hire.”
What steps are required in order to copyright a work?
There are no required steps. Registering a copyright is optional; a work is protected by copyright from the moment it is created and fixed in tangible form. However, including a copyright notice on a work provides a public record that the work is copyrighted, and registration with the Copyright Office is required before statutory damages can be collected in an infringement case.
What is a copyright notice?
A copyright notice consists of the copyright symbol (©) or the word “copyright”, the name of the copyright owner, and the year of publication.
What steps are necessary in order to register a work with the Copyright Office?
Copyright application forms can be downloaded from the U.S. Copyright Office website, www.copyright.gov.
How long does copyright protection last?
For works created on or after January 1,1978, these terms apply: If the author is an individual, the term is the life of the author plus 70 years. If another party claims the copyright as a work made for hire, the term is 95 years from publication, or 120 years for unpublished works.
How does a copyright differ from a patent or a trademark?
Copyright protects original works of authorship. A patent protects inventions or discoveries, and a trademark protects words, phrases, symbols, or designs that are used to identify a source of goods or services.
Under what circumstances does something belong to the “public domain”?
Public domain is intellectual property that is not owned or controlled by anyone and is freely available for use.All works published before 1923 and certain works published between 1923 and 1978 that lack a valid copyright notice or a formal copyright renewal are considered in the public domain, as are works of the U.S. government.
Now some questions about copyright in
Now some questions about copyright in the classroom.
Why is it important for educators to know about copyright?
Although copyright law includes a “fair use” provision for the educational use of copyrighted material, the law does not otherwise grant special privileges to educators. Teachers need to understand the limits of “fair use” in order to avoid violating the law inadvertently, and to be sure that their use of copyrighted material in the classroom sets a positive example for students.
Why is it important to teach students about copyright?
Aside from teaching respect for the law, lessons in copyright can reinforce respect for intellectual property through proper attribution of sources and guide students toward responsible use of computer technology. In addition, when they learn about copyright, students learn sound civic values and ethical decision-making, and gain knowledge that will help prepare them for success in a wide range of career paths.
What are some common student misconceptions about copyright?
● Students who become accustomed to using copyrighted material in their schoolwork may come to think of themselves as somehow exempt from the laws that protect intellectual property rights, as if simply being a student were license to 4 copy anything at any time. It is important to emphasize that while the law allows students to use copyrighted material for school, it strictly prohibits copying copyrighted material without permission for other purposes.
● Some students believe that copyright law makes an exception for “personal use” of copyrighted material. It does not. Sharing copies of music, movies, photos, video games, and software is copyright infringement. In fact, sharing copyrighted materials through online networks such as a peer-to-peer (P2P) network without permission from the owner is a copyright violation subject to severe penalties.
● Students may confuse their right of ownership as the purchaser of a copyrighted work with the intellectual property rights of the work’s creator. They should understand that they do not actually own all the rights to the music, movies, video games, and software that they purchase. The copyright owners retain some of those rights and are selling a limited license to use the work.
The fine points: fair use, plagiarism,
The fine points: fair use, plagiarism, and piracy.
What is fair use?
Fair use is technically a defense to copyright infringement that allows a person to reproduce or otherwise make use of a limited portion of a copyrighted work without permission for certain purposes. Although the limits of fair use are not always clear, permitted purposes generally include criticism, comment, news reporting, teaching, and scholarly research.
What are the four fair use factors?
These are the factors weighed by a judge in determining whether to accept a fair use defense. The first takes into account “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The second factor considers “the nature of the copyrighted work,” meaning that those that are creative in nature, such as a musical composition, sound recording, motion picture, video game, etc., would receive more protection than fact-based works. The third factor considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” meaning that use of an entire work is less likely to be found to be a fair use. The fourth factor considers “the effect of the use upon the potential market for or value of the copyrighted work.”
How much of someone else’s work can I use without getting permission?
Except in circumstances covered by fair use, the law prohibits any use of copyrighted material without permission. The fair use doctrine allows for the use of limited portions of works for certain purposes, but there are no rules regarding specific number of words, musical notes, etc.
What constitutes plagiarism in the classroom?
Outside the classroom, plagiarism can be defined as word-for word copying. In the classroom, however, the definition expands to include the misrepresentation of someone else’s work –– including facts, ideas, or concepts ––as one’s own without proper attribution.
What is piracy?
Piracy is intellectual property theft. Misuse of technology enables almost anyone to produce illegal copies of text, images, movies, music, video games, and software.
Last, some how-to’s.
How do I get permission to use someone else’s work?
Where can I find more information about copyright?
For additional information, visit the websites of the United States Copyright Office (www.copyright.gov) and The Copyright Alliance (www.CopyrightAlliance.org). Remember, some works like U.S. Government documents are in the public domain and are freely available for use.
A Copyright Glossary
The following offers a quick reference for terminology related to copyright and for when you encounter a computer term used by a student the may be unfamiliar.
Academic plagiarism: Using the work of another without attribution, including facts, data, ideas, arguments, or lines of thinking.
BitTorrent: A peer-to-peer file-sharing protocol used to distribute large amounts of data.
Bootlegging: Distributing, or selling, copyrighted works without permission.
Burning: Using a computer to copy data (text, music, or images) onto a CD.
Copyright: A form of protection provided by the laws of the United States that gives creators exclusive rights to ownership and use of their “original works of authorship,” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. Copyright is also protected by international agreements.
Copyright infringement: The unauthorized copying or use of a work that is protected by copyright.
Copyright notice: The copyright notice consists of three elements: the "c" in a circle (©) or the word “copyright”, the year of first publication, and the name of the copyright owner.
Derivative work: A work that includes copyrighted elements of a previously created work, for example, a sequel to a film or novel in which the original characters are again featured.
Downloading: Copying a file from a web page.
DRM (Digital Rights Management): The acronym for technologies, such as encryption codes, that block unauthorized use of digital media or devices.
Facebook: A social networking website that allows people to connect online with both social and professional contacts. Studentsshould be aware that their Facebook page is not covered by the fair use provision that permits use of copyrighted material without permission in their schoolwork.
Fair use: A defense to copyright infringement that allows a person to reproduce or otherwise make use of a limited portion of a copyrighted work without permission under certain circumstances. Although the limits of fair use are not always clear, permitted purposes generally include criticism, comment, news reporting, teaching, and scholarly research.
Fanfic: Derivative works of fiction written by fans as an extension of an admired work or series of works, especially a television show, often posted on the Internet or published in fanzines (for example, when fans produce their own stories using the characters from a show such as Star Trek or a series of novels
such as Harry Potter).
File sharing: Copying files from one computer to another, either using file servers on a network or by downloading files over the Internet through a peer-to-peer (P2P) network.
Intellectual property: Any product of a creative mind that is fixed in a tangible form of expression and, thus, is thereafter protected by patent, copyright, or trademark laws.
License: A legal agreement granting permission to use a work for certain purposes or under certain conditions. Cartoon and film characters, for example, can be used on merchandise (and in some classroom applications) only through a license granted by the copyright owner for that specific purpose.
MP3: An audio file format that is highly compressed for transmission over the Internet and use in digital devices.
MP3 player: A device for playing MP3 files, such as an iPod.
MySpace: A social networking website like Facebook.
Orphan work: An original work that is protected by copyright but whose copyright owner cannot be identified and/or located, either because the work itself or a subsequent transfer of rights wasn’t registered with the Copyright Office, or because the copyright owner has died and his/her heirs
are unknown, etc. Reproduction and other uses of such works carry the risk of a copyright infringement claim.
Patent: A government grant that generally protects an invention from being copied, used, distributed, or sold without the permission of its owner.
Peer-to-peer (P2P) networking:Networks, such as LimeWire, that connect individual computers through the Internet and allow users to download content directly from one another’s hard drives. Such networks are commonly used for copyright piracy and have been identified as a prime source of computer viruses.
Piracy: The unauthorized copying of copyrighted material, most often used to describe the unauthorized copying of CDs, DVDs, and software.
Plagiarism: Reproducing any portion of a copyrighted work without permission. See also academic plagiarism.
Public domain: A work of authorship is in the “public domain” if the term of its copyright protection has expired or if it does not meet the requirements for copyright protection (for example, while the design of a calendar can be copyrighted, the content itself cannot).Works in the public domain may be used freely.
Ripping: Copying songs from a CD onto a computer.
Spyware: Malicious software that gathers information from a computer without the user’s knowledge or permission. Spyware can track online activity and collect information about everything from the user’s email address book to their credit card numbers.
Streaming: Viewing or listening to audio or video files online without downloading.
U.S. Copyright Law: Dating back to 1790, when George Washington signed the first Copyright Act, this law governs the rights associated with creative and artistic works by protecting the creators of such intellectual property from its usage by others without their permission. The Digital Millennium Copyright Act of 1998 provides penalties for developing hardware or software that overrides copy-protection schemes for digital media.
Work made for hire: A work prepared by an employee within the scope of his or her employment. The copyright owner of such works is the employer.
YouTube: A popular Web video-sharing site that enables anyone to store short videos for private or public viewing.