COPYRIGHT
BASICSThe copyright law allows copyright owners to exercise the rights granted to them, to license their rights, or to give them away. Nothing in the law prevents those who want to dedicate their works to the public domain from doing so. Creators and authors who don't want to claim copyright may waive their rights and allow unrestricted reproduction, distribution and other uses. However, in spite of some myths to the contrary, since 1989 no action on the part of the author or creator, nor special markings or notices, is necessary to secure a copyright. Copyright protection exists from the moment a work is created in fixed form.
What
can be copyrighted? Ideas, facts, titles, names,
short phrases and blank forms cannot be copyrighted, but most of the items
that you're likely to encounter on the Internet or elsewhere are eligible
for copyright. In the absence of specific information to the contrary,
you should assume that everything you see is copyrighted by someone.
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Copyright
violations. Willful infringement on a copyright
can bring severe penalties, including both fines and prison sentences.
(Willful infringement means you knew you were infringing and did it anyway.)
Ignorance of the law is no excuse. Even if you don't know you're
infringing, you can still be held liable for damages. Only the amount
of the fine will be affected.
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Fair Use. The authors of the law did recognize the need for students and educators to have certain kinds of access to copyrighted materials, and included in the law certain limitations on the rights of copyright owners, which are described as "fair use." There is no simple test to determine what is fair use. Section 107 of the Copyright Act sets forth the four fair use factors which should be assessed in each instance, based on the particular facts of a given case. To determine whether a use is a "fair use," consider:
(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, and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Only the courts can authoritatively determine whether a particular use is fair use, but some guidelines have been developed by copyright office-sanctioned groups representing copyright owners, educators, and librarians. The classroom guidelines were published in 1976 and the issues raised by photocopiers and computers in 1978. In 1994, the Consortium of College and University Media Centers convened a process to develop fair use guidelines for educational multimedia. Though these guidelines have no force of law, they do represent some level of legal defense because of their widespread acceptance by both copyright owners and users.
Many colleges have policies or procedures which reflect those and other guidelines:
Tri-County Technical College Policy and Procedures
Uses that exceed these guidelines may or may not exceed fair use. The more one exceeds the guidelines, the greater the risk that fair use is being violated. Remember though, fair use is not an issue for materials in the public domain or for works for which the individual or institution has obtained permission for the use, or when the user is operating within the limits of a legally obtained license. In the instance of a license, the user should refer to the terms of the license for guidance.
The copyright law has always lagged behind the development and capabilities of technology. The first law was passed in 1909, revised for the first time in 1976, and, most recently, in 1998 (the Digital Millennium Copyright Act.) In 1993, President Clinton formed the Information Infrastructure Task Force (IITF) to articulate and implement the Administration's vision for the National Information Infrastructure (NII). The Task Force organized itself into committees which began meeting in November, 1993, published draft copies of their work in 1995, 1996, and 1997, and issued the final Report of the Conference on Fair Useb> in May, 1998.
The Conference on Fair Use (CONFU) resulted in much discussion on the issue of fair use in a digital environment, but little in the way of concrete guidelines. It resulted in the formal adoption of the 1994 fair use guidelines for educational multimedia, proposals for fair use guidelines for digital images (not presented in the Final Report), some aspects of distance learning (basically extending the face-to-face teaching exemptions to live, video transmissions over closed systems), and the adoption of a statement of scenarios dealing with the use of computer software in libraries. The guidelines which related to the 1976 law were left undisturbed.
Because the Conference on Fair Use did not result in general consensus on guidleines in most distance learning modes and is not likely to do so for several years, the South Carolina State Board for Technical and Comprehensive Education (SBTCE) has engaged a law firm to develop some guidelines for us to use in the interim. Those guidelines are currently under development and, as soon as they are available they will be posted on this site.
The Law of Cyberspace for Non-Lawyers: The Cyberspace Law Primer
by Mark F. Radcliffe
www.gcwf.com/articles/cyber/primer.html
Copyright, digital data and fair use in digital networked environments.
by Pamela Samuelson, Professor of Law, University of Pittsburgh Law
School
www.droit.umontreal.ca/crdp/en/equipes/technologie/conferences/ae/samuelson.html
Copyright Office Circular 22: How to investigate the copyright status
of a work.
lcweb.loc.gov/copyright/circs/circ22
Copyright Office Circular 21: Reproduction of Copyrighted works by
Educators and Librarians
lcweb.loc.gov/copyright/circs/circ21
Fair Use and Copyright (Stanford University Libraries)
fairuse.stanford.edu
The Copyright Website from Benedict O'Mahoney
www.benedict.com
Copyright For Computer Authors
Franklin Pierce Law Center
http://www.piercelaw.edu/thomasfield/ipbasics/copyright-for-computer-authors.php
The Exclusive Right to Read
by Jessica Litman
http://www-personal.umich.edu/~jdlitman/