When is something copyrighted?
Sections 102-105 of USC Title 17 describe the material to which copyright applies. In order to be protected an item must be:
- original work of author(s),
- "fixed in any tangible medium of expression," and
- perceivable, reproducable, "or otherwise communicated, either directly or with the aid of a machine or device."
Works created after 1978 are copyrighted regardless of whether or not they have been published or contain a notice of copyright.
Copyright does not apply to facts, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. But be aware that these may be protected by patent, trademark, or trade secret law. See U. S. Copyright Office: What Does Copyright Protect? for more examples.
What is fair use?
Fair use is the term which describes the user's rights to reproduce portions of copyrighted works. Section 107-112 of USC Title 17 describe limitations on authors' exclusive rights to their works. Section 107 in particular defines what rights users have in copyrighted works. Users may reproduce works "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." This list is illustrative rather than comprehensive. Section 107 further specifies that before a use is considered fair, four additional factors must be considered. These are:
- purpose of the use
- nature of the work
- amount and substantiality of the portion used
- effect on market or value of the work
Increasingly courts are interpreting fair use in a very narrow sense. Although the purposes listed above include "multiple copies for classroom use," photocopying a textbook rather than asking students to purchase the book would most likely be found an infringement of copyright. Photocopying an article for class discovered the night before a pertinent lecture would more likely be considered fair use. For further discussion of fair use see U. S. Copyright Office Fact Sheet FL 102.
What is the public domain?
Any material for which copyright has expired or to which copyright never applied (see: When is something copyrighted?) is considered to be in the public domain. Items in the public domain may be freely used and republished. Keep in mind however, that plagiarism is a separate issue and that it is always unethical to quote, paraphrase, or copy without citing the source. Also, keep in mind that copyright may apply to only a portion of a work. For example, the text of Hans Christian Anderson's fairy tales are in the public domain, however a reprint with new illustrations would carry copyright for the illustrations. Likewise, accompanying analytical essays of Shakespeare's plays would be copyrighted, while the plays themselves are public domain.
When is something in the public domain?
Copyright law has changed over the years making it difficult to determine when some items enter the public domain. The following links provide information to help you determine whether an item is still copyrighted. The basic rule of thumb is that anything published prior to 1923 is public domain. From 1923 on it may or may not be copyrighted depending on how recently it was produced and on whether or not the owner renewed the copyright.
- Union College Library Copyright Guidelines (PDF)
- Search Copyright Records (U. S. Copyright Office database of registered copyrights)
- Laura Gasaway's When Works Pass into the Public Domain
How do I get permission to copy a work?
The best way to get permission to copy a work further than fair use allows is to contact the copyright owner. Explain how you intend to use the work and the number of copies you expect to make. The owner may give you permission to copy for free or may ask for a royalty based on the number of copies you make. If you regularly make large numbers of copies or perform copyrighted works, there are a number of organizations which can help you facilitate permission to copy and the payment of royalties.