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).
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).
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.