September 2013

What Journalists Need to Know About Copyright

What Journalists Need to Know About Copyright

The Purpose of Copyright

In the United States, the concepts of copyright and patent law were carried over from the laws of England to state laws, and were then introduced at the federal level in the U.S. Constitution in 1787. Article I, Section 8, Clause 8, of the Constitution reads: the Congress shall have powerto promote the progress of science and the useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries. In 1790, the First Congress implemented the copyright provision of the U.S. Constitution. The original United States copyright law was based on the Statute of Anne, enacted eighty years earlier by Englands Parliament in 1710. The Statute of Anne established initial ownership of copyright by authors and a fixed term of protection. Since the U. S. Copyright Act of 1790, United States copyright statutes have been revised numerous times. The scope of copyright protection has been broadened to include the products of new technologies; the term of copyright has been gradually, but substantially, lengthened; and case law has evolved to account for the many ways in which works can be used, licensed and infringed.

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What Journalists Need to Know About Copyright

In the United States, copyright protection exists from the moment a work is fixed in a tangible form of expression, such as a writing, or an audio or video recording.

US Copyright Law
Based on specific language in the United States Constitution, copyright law exists to foster creativity and spur the distribution of new works. The law initially grants authors, such as musicians, artists, writers and other types of creators, the exclusive rights to their works. The copyright in a work immediately becomes the property of the author who created it. Only the author, or those deriving their rights from or through the author, can rightfully claim copyright. In the case of works made for hire the employernot the writeris considered the author. Generally speaking, works made for hire are works made i the scope of the employment relationship and certain commissioned works if specified by contract. United States copyright law protects both published and unpublished works, regardless of the nationality or domicile of the author. As stated in the U.S. Copyright Act, copyright law protects original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works fixed in any tangible means of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated directly or with the aid of a machine or device. In the United States, copyright protection exists from the moment a work is fixed in a tangible form of expression, such as a writing, or an audio or video recording. Works that are not fixed may not be protected by copyright. For example, an improvisational dance routine would not be protected by copyright until it is written in dance movement notation, recorded on video or otherwise fixed in a tangible medium. Further, it is the expression of the work, rather than the idea or concept that is protected by copyright. Thus, for example, nothing in copyright would prevent two authors from independently writing novels on the very same topic, or two artists from rendering their own respective paintings of the same portion of landscape, so long as no unauthorized copying is taking place. If, by contrast, an author were to incorporate into its own novel specific fictitious characters from another authors work without obtaining permission, then, barring fair use or another exemption, this would be an example of protected expression being used in violation of the copyright owners rights, resulting in copyright infringement. The categories of subject matter identified in the copyright law should be viewed broadly. For example, computer programs and most compilations may be registered as literary works; maps and architectural plans may be registered as pictorial, graphic, and sculptural works.

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What Journalists Need to Know About Copyright

Any exclusive transfer of the rights of the copyright owner must be in writing and bear the signature of the copyright owner in order to be valid and enforceable.

Initial Copyright Ownership

The copyright in a creative work is initially the property of the author. Only the author, or those deriving rights through or from the author, can claim copyright rights. Copyright is secured automatically when the work is created and fixed in a tangible form, as discussed previously. In the case of works created in the scope of an employment relationship and other works made for hire under the copyright law, the employer is the copyright holder of the works created by its employees. For works that are contracted, however, the party performing the contracted work is considered the author of the work unless the agreement for the contracted work specifies otherwise. And, in the case of joint works, two or more authors can own the copyright to a work. It is unlawful to violate any of the rights provided to the owner of a copyright. Section 106 of the Copyright Act lists the primary exclusive rights of the copyright holder. They are: The right to reproduce the work The right to create a derivative work The right to distribute copies The right to perform the work publicly The right to display the work publicly

Transfer
Any exclusive transfer of the rights of the copyright owner must be in writing and bear the signature of the copyright owner in order to be valid and enforceable. There are two types of exclusive transfers. The first is called an exclusive license, which provides the licensee with the exclusive right to exercise some or all of the rights of the copyright owner subject to the terms imposed by the copyright owner. The second type of exclusive transfer is called an assignment of copyright, which conveys ownership of all or some part of the copyright owners exclusive rights to the transferee. In addition to exclusive transfers, the copyright owner may grant non-exclusive licenses, or permissions, to use its copyrighted work; these are not required to be in writing. Unique to transfers of copyright is a non-revocable right for the original copyright owner to terminate a copyright transfer within a designated window that opens a certain number of years after the transfer, generally 35 years in the U.S. The provision was included to ensure that the original creator or his or her heirs would have an additional opportunity to market a work where its value may have significantly increased in the time following the transfer.

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What Journalists Need to Know About Copyright

The use of a copyright notice is recommended, whether or not the work is registered with the United States Copyright Office, because it reminds the public that the work is protected by copyright.

Divisibility of Rights
The copyright owners rights in his or her work may be viewed as a bundle of sticks, each of which represents a separate right, and each of which can be independently sold, licensed or otherwise transferred. On a high level, the bundle consists of the five main exclusive rights of the copyright holder listed in the copyright law: 1.copying 2.reproduction 3. creation of derivative works 4. public performance 5. public display Each of those rights is divisible into smaller and smaller pieces that are themselves independently transferable. For example, the author of a novel may assign his or her exclusive reproduction and distribution rights to one publisher for the U.S., to another publisher for all of Europe and to yet another publisher for the rest of the world. The author may assign its right to create a film version of its novel but retain the right to create new novels based on the novel. In principle, there is no limit on the divisibility of the copyright owners rights.

Copyright Registration
The way copyright protection is secured in the United States is frequently misunderstood. Once a work is fixed in a tangible form, no other action is required to secure copyright protection. Registration with the U.S. Copyright Office is recommended because infringement lawsuits may be brought only on registered works. While a work may be registered at any time, no damages are available for infringements that occur before registration of the copyright. In addition, statutory damages are only available for works that were registered with the Copyright Office within a certain timeframe specified in the copyright law. A U.S. work must be registered with the U.S. Copyright Office before suit may be brought for copyright infringement.

Copyright Notice
The use of a copyright notice is no longer required under United States law. This requirement was eliminated when the United States adopted the Berne Convention, effective on March 1, 1989. However, the use of a copyright notice is recommended, whether or not the work is registered with the United States Copyright Office, because it reminds the public that the work is protected by copyright.

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What Journalists Need to Know About Copyright

Under current U.S. law, a work created on or after January 1, 1978 is ordinarily protected by copyright from the moment of its creation until 70 years after the authors death.

Copyright Duration
Under current U.S. law, a work created on or after January 1, 1978 is ordinarily protected by copyright from the moment of its creation until 70 years after the authors death. For works published prior to January 1, 1978 and still protected by copyright on that day, the term of protection was increased by 20 years. Therefore works created in 1923 or later that were still protected by copyright in 1998 will begin entering the public domain in 2019. However, some works published in 1923 or later may already be in the public domain if their copyrights were not registered and renewed between 1923 and 1978. The meaning of the term public domain as used in copyright law is discussed in the next section of this workbook. For works made for hire, anonymous works and pseudonymous works, the duration of copyright protection is currently 95 years from publication or 120 years from creation, whichever is shorter.

Public Domain
A work is said to be in the public domain if it is no longer protected by copyright, or if it was never protected by copyright. It is a common misconception that if a work can be accessed for free on the Internet, it is in the public domain and can be freely used this is not true. Simply because a work is publicly available does not mean that it is in the public domain. Indeed, in most cases, works that are made publicly available via the Internet or otherwise are protected by copyright and require permission to be copied, redistributed or otherwise used in any way that would implicate the copyright owners rights in the work. Works created prior to 1923 are in the public domain in the United States because of the lapse of time. Works created by the United States government at any time are likewise in the public domain because U.S. law denies protection to such works based on the belief that such works belong to all citizens. A work can be dedicated, or donated, to the public domain. If the copyright holder of a work does not want to retain his/her copyright rights and would rather allow the free use of materials without the user needing to obtain permission or pay royalty fees, the author may donate the work to the public domain. A work can be donated to the public domain simply by attaching a statement to that effect to the work. To avoid falling into the public domain, works published between 1923 and 1963 had to be registered with the U.S. Copyright Office on a timely basis and then renewed in their 28th year. Further, for a U.S. work created prior to 1989, failure to include proper copyright notice in the published edition ordinarily placed the work in the public domain. It is often very difficult to determine if a work is in the public domain. In some cases an extensive copyright search may be necessary.

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What Journalists Need to Know About Copyright

About Copyright Clearance Center

Representing copyright holders from around the world, Copyright Clearance Center (CCC) is a global rights broker for the worlds most sought after content, including in- and out-of-print books, e-books, journals, blogs, newspapers, magazines and images. Started in 1978, CCC provides smart solutions that simplify the access and licensing of content for businesses, academic institutions and government agencies to use and share copyright-protected materials while compensating authors, publishers and other creators for the use of their works. CCC serves organizations of all types and sizes, and licenses millions of content users in over 180countries.

Digital Content and Copyright

Digital or electronic content, such as e-books, photographs on websites, electronic databases and other content found on the Internet, is subject to the same protections under the U.S. copyright law as non-digital, traditional, or analog works. People frequently assume that online content, including content found on websites, is not subject to copyright law and may be freely used and modified without permission. Others think that online content is not protected unless it carries a copyright notice. Neither assumption is true. Copyright law protects almost all content on the Web or in any other digital or electronic form. Therefore, to use a work in any instance that is not exempted under fair use or another exemption, permission is most likely required. Because new technologies have created situations that were not specifically addressed in the 1976 Copyright Act, there has been regular pressure to develop new provisions to in order to modernize copyright law.

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