Know Your Copyrights, Part 1

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This article is one a two-part general introduction to copyright and should not be relied on as legal advice. Readers are advised to learn more about the many aspects of copyright by visiting the US Copyright Office website. Questions not answered there or in an online search are best answered by a competent intellectual property attorney. University students might first wish to contact their school’s legal office.

Be sure to catch part two, as well.

The Internet Era has created an entirely new environment for copyright, the principle that everyone owns the distribution rights to their original writings, compositions, photographs, drawings and paintings within certain limits. These creations are collectively known as intellectual property that their creator may publish, license, sell, assign or simply give away.

Copyright has fundamental limitations. If you telephone a friend and express your thoughts about this article, neither you nor your friend own a copyright to your words. But if you express your thoughts in a text, email, tweet, Facebook post or even a typed or hand-written letter, you and only you own copyright to your words. If you used Twitter, Facebook or any other social site to publish your post, you still own the copyright, but you granted the social site a nonexclusive license to publish your words when you signed up for your account.

Because what can and cannot be copyrighted is governed by Federal law, it’s prudent for everyone with online access to become familiar with the law’s most important exceptions and exclusions. For example, under the “Fair Use” rule, you can freely quote passages from this article. You can also post a list of ingredients in a recipe, for facts cannot be copyrighted. In both these cases, however, you risk being charged with plagiarism if you fail to provide a citation or acknowledgement. While plagiarism might not be a crime, it can cost you a job or target you with an academic fraud investigation.

To better understand how you can best cope with and make use of copyright, it’s helpful to review its history. We’ll do that next. Then we’ll explore how you can protect your rights under copyright law while also respecting the rights of others.

The Copyright Clause and its Origin

Many in the online file sharing community view copyrights and patents as obsolete, anti-sharing and even evil. Their view is not new, for there have always been those who plagiarized or published without permission the works of others or copied and sold someone else’s invention. That’s why the US Constitution includes a brief but significant clause that authorizes Congress to give authors and inventors the exclusive rights to their works for a limited time.

The intellectual property clause was not an arbitrary addition to the US Constitution, for its history goes back to John Locke’s advocacy of natural law and the Statute of Anne passed by the British Parliament in 1710, which opened with this sentence placed online by Yale Law School’s Avalon Project:

An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.

The principal of copyright enshrined within the Statute of Anne influenced the Continental Congress during 1783. According to Journals of the Continental Congress (Gaillard Hunt, ed., Vol. XXIV, pp. 326–327, US Government Printing Office, 1922), a committee was formed to consider requests by several people concerning literary rights. The committee members were Hugh Williamson, Ralph Izard and James Madison, and they reported to the Congress that:

…being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce, beg leave to submit the following report:

Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication;

The Continental Congress itself had no authority to pass a copyright law, hence the motion to recommend that each of the 13 States pass copyright legislation. Every State except Delaware soon did, but there were significant differences in the various laws. What happened during the Constitutional Convention four years later is recorded by William F. Patry in Copyright Law and Practice (The Bureau of National Affairs, Inc., 1994).

Charles Pinckney and James Madison proposed several copyright clauses on August 18, 1787. Their proposals were referred to the Committee on Detail, which issued its recommended language for a copyright and invention clause only eighteen days later. The clause was inserted in Article 1, Section 8:

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;

The draft Constitution, with the copyright clause intact, was unanimously accepted by the Convention on September 17, 1787, and Congress approved the historic document on September 28.

While waiting for the legislators of the States to vote the new Constitution up or down, James Madison, Alexander Hamilton and John Jay wrote under the pen name Publius a series of historic, carefully worded defenses of the Constitution in The Federalist Papers. Madison began The Federalist No. 43 of January 23, 1788, by quoting the intellectual property clause and then defending it:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.

The Federalist No. 43 was addressed “To the people of the State of New York,” and on July 26, 1788, the Convention of the State of New York, conditionally ratified the Constitution, becoming the eleventh State to do so. New York’s ratification was considered vitally important to the success of the proposed Unites States of America, and its key conditions were resolved with the adoption of the Bill of Rights by the States on December 15, 1791.

Copyright Legislation

Today’s copyright, trademark and patent legislation statutes trace back to the twenty-seven-word copyright clause in the Constitution and the first US copyright law [PDF], which was signed by President George Washington on May 31, 1790:

AN ACT for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned.

The authors, map makers and artists of the late eighteenth century had finally won protection for their intellectual creations. They and the elected officials who drafted and approved the first copyright act had no idea that technology would eventually require dramatic revisions to the law that protected intellectual property and even a redefinition of copyright itself. So let’s jump from 1790 to Title 17 of today’s United States Code, which incorporates the Copyright Act of 1976 and its many revisions. Besides the fundamentals of copyright law, Title 17 includes international agreements, the Digital Millennium Copyright Act and civil and criminal sanctions for copyright violators.

What Can and Cannot Be Copyrighted

The Copyright Act of 1976 specifies what can be copyrighted in § 102. Subject matter of copyright:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

The Copyright Act also lists what cannot be copyrighted:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

These limitations on what can and cannot be copyrighted are often misunderstood or even unknown, which is good reason to be familiar with “What Is Not Protected by Copyright?” in the Copyright Office’s Circular 1 [PDF]. For example, a cookbook’s copyright applies only to the original photographs, illustrations and descriptive text and instructions. The basic lists of ingredients in its recipes, even if original with the writer, are simply facts that are not covered by copyright.

Consider a novel that presents a highly detailed, movie-quality scenario for flying a helicopter to and from the summit of Mount Everest. While the novel will likely include a copyright notice, the copyright does not cover any factual description of helicopter operating principles and the height and location of Mount Everest.

Those who borrow and then publish recipes from a cookbook or facts from a novel are not subject to copyright infringement. But they risk being viewed as plagiarists if they do not acknowledge their sources.

Public Domain. The Copyright Act precludes copyright status for works whose copyright has expired or are otherwise ineligible for copyright protection. Such works are considered in the “public domain”, a category that is well defined in Stanford University’s “Welcome to the Public Domain”. Works published before 1923 are in the public domain, as are government publications, laws and anything declared to be public domain by its creator. Anyone is free to use what is in the public domain unless it is classified under US law, a trade secret or personal information such as a Social Security number.

While works in the public domain cannot be copyrighted, there is an exception for compilations and collections of such works. Consider the plays of Shakespeare, all of which are in the public domain. The Copyright Office will allow some or all of the plays to be compiled as a collection that can be copyrighted [PDF] “…if the materials are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes a new work.” The copyright applies only to the compilation and not to the public domain status of the plays themselves.

Creative Commons. An increasingly important spinoff of the Internet era is Creative Commons (CC), a nonprofit organization that provides simple ways for copyrighted works to be conditionally placed in the public domain. These capabilities make copyrights more flexible than ever anticipated by any of the pre-Internet era copyright laws. A CC copyright license does not replace conventional copyright. Instead, it permits a copyright owner to share a work with the public under terms he or she specifies. For example, suppose a photographer makes a stunning photo of a rare double rainbow decorating the sky over the Washington Monument. Through a free CC license, she can allow the general public to share her photo online at the resolution she chooses so long as she is credited and the use is non-commercial. This preserves her right to license for a fee a high-resolution version of the photo to advertisers and commercial publishers. As summarized by CC:

Our free, easy-to-use copyright licenses provide a simple, standardized way to give the public permission to share and use your creative work — on conditions of your choice. CC licenses let you easily change your copyright terms from the default of “all rights reserved” to “some rights reserved.”

Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs.

Government Works. The Copyright Act (17 US Code § 105) states: “Copyright protection under this title is not available for any work of the United States Government.”

While unclassified government documents and publications are in the public domain, they may include copyrighted information and photographs from non-governmental sources. So it’s important to be sure that any government documents that you plan to publish do not include copyrighted material. Of course you can contact the copyright owner to request permission.

The government copyright exclusion is why there is confusion and legitimate concern about the copyright status of articles for professional journals and magazines prepared by employees of the Federal government. Can such papers be copyrighted? As explained in copyright guidelines by CENDI (the Commerce, Energy, NASA, Defense Information Managers Group):

No, a paper, report, or other work prepared by an employee of the US Government as part of that person’s official duties is a US Government work. Copyright protection is not provided for US Government works under US Copyright Law. Therefore, there is no US Copyright to be transferred.

The US Freedom of Information Act (FOIA) provides a useful means for requesting all manner of government documents, maps and photographs. However, the Congress has specifically exempted nine categories of sensitive information that may not be released to the general public. Included are classified documents, personal information, trade secrets and information that might compromise or interfere with a law enforcement investigation. Full details are here.

How to Obtain a Copyright

Copyrights are either unregistered or registered, and it’s important to understand the difference.

Unregistered Copyright. Everything that a person writes, photographs, paints, draws or composes that is not exempt from copyright is automatically covered by an unregistered copyright.

Registered Copyright. While everyone automatically owns the copyright to their non-exempt intellectual creations, it’s wise for authors, artists, composers and photographers to secure a registered copyright for their significant works. Application for a copyright can be submitted online or on a paper application sent by mail. The online process is easiest and requires a fee of $35 or $55, while the paper process takes longer and requires a fee of $80. (The fees are subject to change.) The registration process is described here [PDF].

A registered copyright has significantly more standing than one that is unregistered, for the Copyright Act provides significant penalties for proved infringements of registered copyrights. An infringer will be potentially liable for any financial losses caused by copying a registered copyright without the owner’s consent and can be required to pay attorney fees, court costs and from $200 to $150,000 in statutory damages for each work that has been infringed. Statutory damages are those prescribed by law and may often exceed real damages. In some cases, the infringer can receive a prison sentence. Full details are given in Chapter 5 of the 1976 Copyright Act.

Considerably less recourse is available when an unregistered copyright is infringed. The owner can seek an injunction that requires an infringer to cease using or exploiting the work. The owner of an infringed but unregistered copyright might also be able to sue for actual damages but not the much more generous statutory damages provided by the Copyright Act. In any such case, it’s best to consult an experienced intellectual property law firm, some of which have posted on their websites detailed explanations for how to defend an unregistered copyright. One such example is here.

Works Made for Hire. An important copyright qualifier that employees should understand is works made for hire. Most organizations have a work for hire policy in which employees must assign full ownership to their employer of any copyrighted materials that they produce during work hours. Some organizations permit their employees to retain copyright to anything they write, photograph or video during work hours so long as the employee grants non-exclusive use of such materials to the employer. Whether the copyright is owned by the employer or the employee, the employer has full rights to use the work.

Copyright Duration

Copyright does not provide a total monopoly on intellectual property, for the Congress has limited exclusivity of copyrights by establishing their lifetimes. According to the US Copyright Office [PDF]:

For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, in which case the term becomes the author’s life plus 70 years).

Fair Use

The “Fair Use” or “Fair Dealing” provision of the US Copyright Act is another limitation on the exclusivity of copyrights. Many disputes could be avoided if those who wish to use copyrighted works would simply consider as guidelines the specific exemptions listed in the Fair Use section of the law:

17 US Code § 107-Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Commentators, reporters, educators, scientists, students and bloggers can make major use of these exemptions. But can those who employ fair use go too far? The law addresses this issue:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Of interest is the lack of specificity in the law. Is fair use limited to five percent of a copyrighted book or article? Ten percent? The law’s fuzziness provides the courts with flexible options for reviewing complaints of infringement. While this often works well, there are instances in which courts ruled very differently on similar copyright infringement cases. The US Copyright Office provides a useful analysis of how courts evaluate fair use controversies here.

Derivative Works

An especially common violation of copyright law is the creation of derivative works from copyrighted material. For example, a lazy student or a reporter in a hurry who merely rearranges or substitutes some words in a copyrighted document and claims them as his own has created a derivative of the original work. While the copyright owner can do this, no one else can. Not only might this violate the law, it might also be viewed as plagiarism. While the law does not establish prohibitions against or penalties for plagiarism, many institutions and organizations certainly do.

Defending Your Copyright

Have you recently published a book or posted an especially distinctive photograph on a social media website? If your work has not already been copied and posted online, there is a good chance that it will be eventually. Creators of intellectual property have many options when their copyright is infringed.

When posting on social media sites, it’s often best to regard what might be an infringement under the law as a complement to your creative ability and free advertising for your future works. If you post on Facebook a great photo of two hummingbirds in combat, you might want to request those who share it to mention your name. This works both ways, and anything that you find and share online or in publications should always be acknowledged. If the photo has commercial value, be sure to post a low resolution version.

If you make a classy photo with commercial potential and want to keep others from sharing it, it’s best not to post it online.  If you do, use a low-resolution version to preserve its commercial value in case any print publishers or advertisers might want to buy rights from you. Meanwhile, be aware that while sharing of your works might constitute copyright infringement, sharing is often committed by someone who doesn’t expect to be caught or is simply unaware of the rights conveyed by copyright. These are common reasons when the offender is a social media junkie, especially a young one, or a person who resides outside the US. Often a polite but firm email is all that’s necessary to persuade the violator to take down your work. If that doesn’t succeed, you might be dealing with a copyright pirate, and you can consider sending a Digital Millennium Copyright Act (DMCA) takedown notice (described below) to the pirate or the pirate’s Internet service provider. Unfortunately, by then it’s possible that other pirate websites have also uploaded your work, and they will also need to be sent takedown notices.

When an infringer ignores takedown requests, you can attempt to get a court to enjoin the infringer, or you can try to embarrass the infringer into ceasing the infringement by publicly exposing what they have done. But these recourses demand great care, for the infringer’s publication of your work might fall within exemptions permitted by the Copyright Act. Whether or not the use is an infringement or fair use, your public protest might make you a target for a barrage of online insults known as flames, your computer might become the target of malware and you might even be subjected to a legal action by a person or persons who believe they were wrongly accused of being an infringer.

The Federal government classifies copyright infringement as intellectual property theft, a white collar crime. If your copyright is registered and has significant value, and you are persuaded that the infringement is disallowed by the Copyright Act, you can complain to the Federal Bureau of Investigation.

FBI Antipiracy Label
The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by fines and federal imprisonment.

[The presentation of the image, text and outline above are required by the FBI. Please see details by clicking on the text.—EDITOR]

Keep in mind that the FBI is a very busy organization. Their main concerns about intellectual property theft include counterfeit products and pirated trade secrets, music, movies and software. If your complaint might not be considered a high priority and you want to proceed, then consider hiring an intellectual property attorney to contact the infringer. If that doesn’t succeed, your attorney can sue the infringer in a Federal court. Most such suits are settled out of court, since courts can award winners substantial statutory damages and attorney’s fees. But the outcome cannot be guaranteed, for the judge might find that the infringement is fair use or that your copyright is somehow invalid. Lawsuits are expensive, time-consuming and emotionally draining, and there is the risk that a lawsuit might cost more in time and money than the value of the purloined intellectual property. In the end, the most notorious pirate sites located in foreign countries might not remove your copyrighted work even if you win a lawsuit.

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) of 1998 amended the Copyright Act of 1976. A Copyright Office summary of the act explains its origin, its international implications and two matters of high significance to copyright owners under Title II of the Act [PDF]:

Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. 

The primary purpose of Title II is the creation of a “safe harbor” that greatly limits the liability of Internet service providers that may store or transfer copyrighted material. In return, under § 512. Limitations on liability relating to material online, websites and service providers must meet certain requirements and must also provide copyright owners with a means for reporting infringements of their copyrights. This requirement is met by what is commonly known as a DMCA “takedown notice,” a communication to the service provider or agent that includes the following information given in § 512 (C)(3) :

ELEMENTS OF NOTIFICATION.

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In my experience, DMCA takedown notices usually work best when sent via email to websites run by individuals. They often work only temporarily when sent to major sites that host numerous copyrighted books, articles, movies and sound recordings. While these site may take down the copyrights listed in a DMCA takedown notice, soon thereafter the identical copyrighted items may be uploaded by others. At least that’s been my experience. Takedown notices require at least twenty minutes to prepare, so it’s simply not practical for individual authors to send notices to the hundreds or even thousands of sites that host their copyrighted books and articles. My books are pirated by thousands of sites all across the web, and I long ago gave up sending DMCA takedown notices. Nick Bilton summarized why in “Internet Pirates Will Always Win” (The New York Times, August 4, 2012) when he wrote:

Stopping online piracy is like playing the world’s largest game of Whac-A-Mole.

Hit one, countless others appear. Quickly. And the mallet is heavy and slow.

The Electronic Frontiers Foundation (EFF) has a different take on the DMCA takedown provision, which they have strongly criticized. Those of us who earn a living from our copyrighted books are simply trying to protect our paychecks. But the EFF apparently views successful takedowns as censorship. The organization’s media office declined to respond to emails that asked: “Does this apply to individual authors who are simply trying to protect their income from sales of their copyrighted books?” The organization has also criticized other provisions of the DMCA, and a list of its criticisms is here.

Recently, the EEF made news with its support of the company Defense Distributed in its court battle with the US Department of State. The opening paragraph of a press release entitled: “EFF to Court: Posting 3-D Design Files Online Is Free Speech” defends the free speech nature of 3-D design files. Not until the second paragraph is the file in question identified as one that permits the construction of a single-shot plastic gun, the same gun whose plans have been hosted on The Pirate Bay, one of the most notorious pirate sites. In a TorrentFreak news story about this, founder and editor-in-chief Ernesto Van der Sar reported that  “a Pirate Bay (TPB) insider” told TorrentFreak:

TPB has for close to 10 years been operating without taking down one single torrent due to pressure from the outside. And it will never start doing that.

The Future of the US Copyright Act

In spite of objections to the idea of copyright by pirate uploaders and downloaders, the copyright clause has remained in the US Constitution for more than two centuries and is here to stay. As in the case of the DMCA, copyright’s Constitutional status doesn’t mean the Congress cannot revise current laws to better cope with technological advances. Since the 1998 adoption of the DMCA, unforeseen circumstances and advances in technology have created important gaps and difficulties in current US copyright laws, and Maria A. Pallante, director of the US Copyright Office, is well aware of these issues. She addressed them in detail in“The Next Great Copyright Act”, her 2013 Horace S. Manges lecture at Columbia Law School. Pallante followed her lecture with “The Register’s Call for Updates to the US Copyright Act,” a presentation she gave before a 2013 Congressional hearing. The Subcommittee on Courts, Intellectual Property and the Internet of the US House of Representatives Judiciary Committee has since held a series of hearings on various copyright issues. Ms. Pallante’s lecture is a must-read for anyone who has concerns about the current status of US copyright laws in the Internet era.

Check out Part 2!

About Forrest Mims

Forrest Mims, an amateur scientist and Rolex Award recipient whose research has appeared in leading scientific journals, was named one of the “Fifty Best Brains in Science” by Discover Magazine. He has written more than a thousand journal, magazine, and newspaper articles and more than fifty books. His science is featured at forrestmims.org. Follow him on Facebook, Twitter, and YouTube. Email him at fmims@aol.com.

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