September 7, 2004 Features

Understanding Copyright Law

Everyone can freely use the words in a language. One cannot steal "words," but one can steal another person's ideas and "creative forms of expression." That is why understanding copyright law is so important.

Safeguards are in place to protect authors, dating back to 1710 when the Statute of Anne was enacted in England. The world's first copyright act, this statute had a two-fold purpose: to respect the rights of authors in their original works and to abate censorship. In the United States, the Constitution first secured authors' rights in 1787. Additional protections came later in the U.S. Copyright Act of 1790 and the First Amendment to the Constitution in 1791.

Scope of the U.S. Copyright Act

The U.S. Copyright Act is found in Title 17 of the United States Code (USC), and is available on the Library of Congress Web site. The Copyright Act has been amended numerous times (e.g., 1909, 1976), and was harmonized with the international Berne Convention for the Protection of Literary and Artistic Works in 1989 (Goldstein, 1993, p. 538). A 1998 amendment increased the term of copyright for literary works to the life of the author plus 70 years (17 U.S.C., § 302(a)), while the Technology, Education and Copyright Harmonization Act of 2002 laid down special rules for digital media and distance education. 

Copyright law pertains to "original works of authorship fixed in any tangible medium of expression" (17 U.S.C., s 102(a)). Works of authorship include: "(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 audiovisual works; (7) sound recordings; and (8) architectural works" (17 U.S.C., § 102(a)).

Copyright does not extend to: works that lack originality, works in the public domain, U.S. government works (17 U.S.C., § 105), ideas, procedures, processes, systems, methods of operation, concepts, principles, discoveries (17 U.S.C., § 102(b)), or names, titles, and short phrases (e.g., mottoes, slogans; Circular 34, 2002). Patent, trademark, and contract law are potential sources of protection for ideas, data, discoveries, or creative slogans that are not protected by copyright law.

Words, Ideas, and "Creative Forms of Expression"

Examples of thoughts that are not creative are "the sky is blue" or "the U.S. Constitution was adopted in 1787." These statements can be made without fear of plagiarism or copyright infringement. They are factual, part of common knowledge, and not attributable to the ideas or creative language of any single individual.

However, if this is written without attribution, "The American Revolution unfolded in a leisurely enough manner to allow Hamilton a fairly rich social life amid the grim necessities of war," it is a different matter. It would represent stealing the ideas and creative language of historian Ron Chernow, from his book, Alexander Hamilton (2004, p. 126).

Plagiarism and Copyright Infringement

Plagiarism is a form of dishonesty because it involves passing off the ideas or creative expression of someone else as one's own; it involves the misappropriation of ideas or creative language without attribution (Office of Research Integrity, 1994, p. 7). Copyright infringement is the misappropriation of original authors' original language-their creative forms of expression.

Consider three complementary concepts regarding common-knowledge ideas, original ideas, and original "creative forms of expression" used to articulate these ideas. First, if I wrote "Alexander Hamilton was involved in the Revolutionary War," I would not be plagiarizing or infringing copyright because this idea is in the public domain. Second, by contrast, if I paraphrased Chernow by writing, "Hamilton had some leisure time despite his intensive involvement in the war," I would be using Chernow's original ideas (generated from his original research). As such, I would commit "paraphrase plagiarism" if I failed to attribute these ideas to Chernow (2004, p. 126).

Third, if I were to use both Chernow's ideas and his actual language, I would commit both plagiarism and copyright infringement. To avoid infringing Chernow's copyright, I must place his language in quotations and cite his original copyrighted work (using the year and page number).

In summary, plagiarism is the use of another person's ideas or creative form of expression without attribution; copyright infringement is the use of another person's creative form of expression without attribution and citation. Plagiarism is a form of scientific misconduct; copyright infringement is a violation of federal law.

What Copyright Protects

The U.S. Copyright Act protects the intellectual property rights of original authors in their creative forms of expression-their creative works. Copyright law accomplishes this by giving authors exclusive rights to their creative works. The phrase "exclusive rights" refers to the legal rights of authors of original works to exclude others from engaging in specific activities. Under copyright law, authors may exclude others from reproducing the work, preparing new versions (derivative works), distributing copies to the public, performing the work publicly, displaying the work, giving permission (a license) to others to use the work, or, finally, from transferring the copyright to others (17 U.S.C., § 106). In short, the U.S. Copyright Act gives authors exclusive rights of ownership in their original works.

When Protection Begins

The law is explicit that "a work is 'created' when it is fixed in a copy…for the first time" (17 U.S.C., § 101). Imagine that I am working on a manuscript. I save Draft #1 as an electronic file (or as a hard copy). Is this draft manuscript copyrighted? Yes. Assuming my work is creative-and not a merely a list of mundane things to do tomorrow (e.g., "get groceries," "pick up dry cleaning"), or recitative, non-creative lecture notes-my work is protected by copyright the first time it is "fixed" in a "tangible medium of expression" (17 U.S.C., §§ 101). In fact, Draft #1 is the first copy of my copyrighted work, and copyright law gives me exclusive ownership rights-"copy…rights"-in my original work of authorship, whether it is published or not (17 U.S.C., § 101, 104, 201).

What Copyright Includes

If, in my manuscript, I quote the eloquent sentence from Chernow's book (cited above), does my copyright encompass his creative work as well? No, because I am permitted under law to copyright only my creative work, not the work of individuals whom I cite. When I purchased Chernow's book, I purchased a copy of his work, but I did not purchase his copyright (17 U.S.C., § 202). Therefore, my copyright only attaches to those creative forms of expression attributable to me. The quotation regarding Hamilton remains the intellectual property of Chernow-or of his publisher, depending on if copyright was transferred at the time of publication.

Legally, I am allowed to use the quotation from Chernow's biography of Hamilton under the fair use doctrine, which is explained later in this article. When using a long excerpt, a table, or a figure from a copyrighted work in a new work intended for publication, or when distributing substantial excerpts, authors should obtain permission from the copyright holder directly or should pay a royalty to the Copyright Clearance Center (see APA Publication Manual, 2001, p. 356).

When A Notice Is Required

Assume I have prepared a final draft of my manuscript, and am ready to send it out for peer review. Do I need to attach the notice "Copyright © Jennifer Horner, 2004" to my manuscript (17 U.S.C., § 401)? Technically, no. Current copyright law does not require a copyright notice. Nevertheless, all authors are well advised to attach it. The copyright notice advises all readers as to whom the author is, and the date of creation (i.e., the most recent date of "fixation" in a "tangible medium of expression").

Nor does the copyright need to be registered with the U.S. Copyright Office (17 U.S.C., § 408). The bundle of rights that are exclusive to the author attach to the work whether it is registered or not. However, if I wish to sue a third party for infringing my copyright, I must register my work beforehand with the U.S. Copyright Office (17 U.S.C., § 411). This is a simple matter, and requires a modest fee (see Library of Congress).

Transferring Copyright

To be legally effective, copyright transfer must be in writing (17 U.S.C., § 204). All owners of the copyright must sign the copyright transfer. On a single-author work, only a single signature is required. On collaborative works, all authors must sign the transfer, because co-authors are "co-owners" of the copyright (17 U.S.C., § 201(a)). Whereas each may independently use, distribute, and create derivative works from the collaborative work, none may transfer copyright to a third party (such as a publisher) without the signatures of all other authors.

Once the copyright is transferred, the recipient owns all the exclusive rights formerly held by the author. For example, the coverleaf of Chernow's book displays this notice: Copyright © Ron Chernow, 2004, meaning he did not transfer copyright to the Penguin Press. In contrast, the coverleaf of Nadeau, Gonzalez Rothi, and Cross's book, Aphasia and Language, displays this notice: © 2000 The Guilford Press.

When to Use Attribution

Imagine using the following language without attribution: "Ethical problems, issues, and dilemmas occur for most people on a daily basis. Whenever we ask the question, 'What should I do?' there is a good chance that an ethical issue or concern lurks in the background" (from Shamoo and Resnik's book, Responsible Conduct of Research, 2003, p. 3). Or imagine making a copy of Shamoo and Resnik's book, and selling it to students. The potential risk, in either case, is that the copyright owner, Oxford University Press, might sue me for infringement of its copyright.

In contrast, what if I used, as a title of my new work, "The Cognitive Cloud" (borrowing from G. Albyn Davis's work, originally published in 1989 as "The Cognitive Cloud and Language Disorders" in Aphasiology, 3, 723ÿ)? Unfortunately for Davis, he could not sue me for copyright infringement, because copyright does not protect titles, names, or short phrases (see Circular 34, 2002).

"Fair Use"

The "fair use doctrine" is very important to scientists and educators because, according to copyright law, use of copyrighted material "…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" (17 U.S.C., § 107).

Although the law is liberal, it does not give us unfettered rights to use others' copyrighted work. To determine whether an individual's use is "fair" (and legal), a court will look at: "(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" (17 U.S.C., § 107).

For an in-depth discussion of the fair use doctrine, see Circular 21, published by the U.S. Copyright Office. When disputes arise regarding plagiarism, copyright infringement, or theft or misappropriation of intellectual property, an academic honor society-or a court of law-will engage in a fact-dependent inquiry to determine who authored a work, its originality, when the work was created, and the "substantiality" of the alleged infringing use. A hypothetical case involving alleged plagiarism and copyright infringement-and answers to the problem-supplements this article.

A Free Society

Copyright law enumerates specific and exclusive ownership rights to authors of creative literary works. At the same time, out of respect for the value of freedom of expression-encompassing citizens ' rights to learn, to read, to know, and to build on the creativity of others-copyright law gives scholars the right to use others' works. To be "fair" to the creativity and to the legal ownership rights of original authors (and the economic interests of publishers), it is essential that professionals and scholars always "give credit where credit is due" by citing original works meticulously, by seeking permission from authors and publishers before using substantial portions of original works, and/or by paying royalty fees before distributing articles and chapters for scientific and educational purposes.

In the United States, copyright protections and freedom of speech go hand-in-hand. The founding fathers of the United States recognized that the freedom to express ideas is a hallmark of a free society. They also understood the need to protect ownership rights in original works of authorship, so as to establish incentives for creativity. These complementary notions regarding liberty and economic interests are fundamental to our lives as citizens of the United States, and especially to our work as students, educators, professionals, and scholars. To preserve the moral and legal rights associated with authorship, it is essential that we credit and cite the ideas and creative works of those who inspire our own creative works. 

Jennifer Horner, is an associate professor in the College of Health Professions, Medical University of South Carolina. She is program director of communication sciences and disorders and chair, Department of Rehabilitation Sciences. She also holds a degree in law. Contact Horner at hornerj@musc.edu.

cite as: Horner, J. (2004, September 07). Understanding Copyright Law. The ASHA Leader.

Copyright Resources

American Psychological Association. (2001). Publication manual (5th ed.). Washington, DC.

Copyright Clearance Center. www.copyright.com.

Copyright Office. (1998). Reproduction of copyrighted works by educators and librarians (Circular 21). Washington, DC: Library of Congress. www.loc.gov/copyright.

Copyright Office. (2002). Names, titles and short phrases not protected by copyright (Circular 34). Washington, DC: Library of Congress. www.loc.gov/copyright.

Copyright Term Extension Act (CTEA). (1998). U.S. Copyright Act, 17 U.S. Code, s 303.
Dartmouth College. (1998). Sources: Their use and acknowledgment. Hanover, NH: Trustees of Dartmouth College. www.dartmouth.edu/~sources.

Goldstein, P. (1993). Copyright, patent, trademark and related state doctrines: Cases and materials on the law of intellectual property (3rd ed.). Westbury, NY: The Foundation Press.

Office of Research Integrity (U.S. Department of Health and Human Services). (1994). ORI provides a working definition of plagiarism. ORI Newsletter, 3(1), 6. http://ori.dhhs.gov/documents/newsletters/vol3_no1.pdf.

Office of Science and Technology (OSTP). (2000, Dec. 6). Federal policy on research misconduct (Final Policy). Federal Register, 65, 76260-76264.

Resnik D. B. (1998). The ethics of science: An introduction. London: Routledge.

Shamoo, A. E., & Resnik, D. B. (2003). Responsible conduct of research. New York: Oxford University Press.

Sheikh, A. (2000). Publication ethics and the research assessment exercise: Reflections on the troubled question of authorship. Journal of Medical Ethics, 26(6), 422.

Statute of Anne. (1710). Original text and transcript. www.copyrighthistory.com/anne.html.

Technology, Education and Copyright Harmonization Act (The TEACH Act). (2002). U.S. Copyright Act, 17 U.S.C., §§ 110, 112.

University of Indiana. (n.d.). Plagiarism: What it is and how to recognize and avoid it. Bloomington, IN: Writing Tutorial Services. Online tutorial: http://www.indiana.edu/~wts/pamphlets/plagiarism.shtml.

U.S. Copyright Act of 1976, 17 U.S.C., §§ 101 et seq. (as amended). www.copyright.gov



Hypothetical Case Involving Plagiarism and Copyright Infringement

Brilliant Betty beat everyone to the punch by turning in her research project before the deadline. Prof. Eagle Eyes glanced at her paper, and saw a lot of creative thinking. After all, he knew that her work was always good, so in the interest of time, he slapped an A on the paper and ran off to his lab.

Meg Molasses was moving more slowly, and managed to turn her research paper in, just in time. Last week, she had inadvertently misplaced the rough draft of her manuscript in the student lounge, and had to recreate it from her notes and drafts, causing her to get behind the eight ball.

When Prof. Eagle Eyes read Meg Molasses's paper he thought, "this sounds familiar, what gives? " On close reading of Meg Molasses's paper, he noticed that some sections of Betty Brilliant 's paper were copied in their entirety. Even the title was the same! The main difference was that Brilliant Betty's ideas were "obviously" original because there were no quotations or citations. Meg Molasses's paper, in contrast, had all kinds of quotations and citations.

Prof. Eagle Eyes called Meg Molasses into his office, and said, "It appears to me, young lady, that you copied Brilliant Betty's work. Not only that, but you used so much of her original work that you cannot call this paper your own. I will have to give you an F and report you to the Academic Dishonesty Board."

Meg Molasses denied the allegation vehemently, and said, "I think Brilliant Betty" copied my work! I am going to sue her for plagiarism and for infringement of my copyright!

Questions

Before reporting Meg Molasses to the Academic Dishonesty Board:

How can Prof. Eagle Eyes determine who is the original author, and who is the plagiarist? What is the difference between plagiarism and copyright infringement?

Assuming Meg Molasses is the original author, what type of rights does she have under the U.S. Copyright Act?

Case Notes to the Copyright Hypothetical

Q: Does copyright protect facts & ideas? (Did Brilliant Betty infringe Meg Molasses's copyright because she lifted the facts and ideas?)

A: No. "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." (17 USC s 102 [b]).

Q: Does copyright protect names, titles & short phrases (catchwords, catchphrases, mottoes, slogans)? (Did BRILLIANT BETTY infringe MEG MOLASSES's copyright because she lifted the title of MEG' s paper?)

A: No. (Circular 34, 2002).

Q: Does copyright protect "form of expression"? (Did BRILLIANT BETTY infringe MEG MOLASSES's copyright because she lifted the form of expression?)

A: Yes. "Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression…Works of authorship include…(1) literary works…." (17 USC s102[a]).

Q: Does copyright protect "literary works"? (Does copyright protect MEG's work?)

A: Yes. "'Literary works' are works…expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless…[of how] they are embodied." (17 USC s101).

Q: When does copyright protection start? (When did MEG's work become copyrighted?)

A: When it was created.

Creation: "A work is ‘created' when it is fixed in a copy…for the first time…" (17 USC s 101).

Fixation: "A work is ‘fixed' in a tangible medium of expression when its embodiment in a copy…by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration…." (17 USC s 101).

Copy/ies: "'Copies' are material objects… in which a work is fixed by any method…from which the work can be perceived, reproduced, or otherwise communicated…The term ‘copies' includes the material object…in which the work is first fixed." (17 USC s 101; see also 17 USC s 202).

Q: Does copyright only protect published works? (Does MEG's work have to be published in order to be copyrighted?)

A: No. Both unpublished and published works are protected by the Copyright Act. (17 USC s 104).

Q: Did MEG "publish" her work when she turned it into PROF. EAGLE EYES?

A: No. Although she gave a copy of her work to her professor, she did not "publish" the work in the legal sense. Legally, "‘Publication' is the distribution of copies…to the public by sale or other transfer of ownership, or by rental, lease or lending." (17 USC s 101).

Q: Once MEG proves that she is the author of an original work, what, in fact, does she "own"?

A: MEG owns the copyright. MEG does not own the ideas or the facts in the work; she merely owns copyright to her original forms of expression. She does not own any of the material she has quoted from other authors' works, she owns only her own creative expression. And, if she publishes and sells copies of the work, she does not own the copies. (17 U.S.C. s 202).

Q: Does MEG—as the author, and therefore, the copyright owner—have the right to exclude BETTY from reproducing her work?

A: Yes. The copyright owner with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right." (17 USC s 101).

Exclusive rights: As the copyright owner, she has exclusive rights—i.e., the right to exclude others from exercising certain rights: "[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

to reproduce the copyrighted work in copies…; to prepare derivative works based on the copyrighted work; to distribute copies…of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending; in the case of literary…works,…to perform the copyrighted work publicly; in the case of literary…works,…to display the copyrighted work publicly…. " (17 USC s 106).

Q: Does another student have the right to reproduce or create derivative works from MEG's literary work?

A: No. MEG, as the author of the literary work, has the exclusive right to reproduce her work or to creative derivative works from her original work of authorship.

Q: Does the professor have the right to publish her work, or to transfer copyright to a commercial publisher?

A: No. MEG, as the author of the literary work has exclusive rights to transfer copyright ownership to a publisher or to otherwise distribute her work to the public. (If, on the other hand, the professor gave MEG the idea for the paper, and helped her write the paper, he would be a co-author, and therefore co-owner of the copyright.)

Q: Is owning a copyright the same as owning a copy of a work?

A: No. "Ownership of a copyright, or any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy…in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object." (17 USC s 202).

Q: How does the author transfer copyright?

A: In writing.

"Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." (17 USC s 204).

Q: What is the duration of copyright?

A: Life of author plus 70 years. Copyright Extension Term Act (CETA, 1998). (17 USC s 302(a)).

Q: How does the author give the public notice of copyright?

A: The symbol ©; the year of first publication of the work, and the name of the owner of copyright, e.g., Copyright © 2003 Meg Molasses. (17 USC s 401).

Q: Is a literary work protected without formal registration?

A: Yes. (17 USC s 408).

Q: In order to sue for infringement, is registration required?

A: Yes. (17 USC s 411).

Q: Does the author own the copyright of a work "made for hire"?

A: No.

"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." (17 USC s 201[b]).

Q: Can other authors use some of the original author's work under the "fair use" doctrine?

A: Yes, as long as the use is "fair."

"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. 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." (17 USC s 107).



  

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