What is copyright?
Copyright is a form of legal protection for intellectual and creative works. It is provided to authors and creators of original works of expression, including literary, musical, dramatic, artistic, sound, and audiovisual works. Copyright applies to both published and unpublished works. Copyright law places a social value on personal expression and creativity by recognizing the author for having created the work and granting to the author rights associated with the work.
Copyright is human right under the United Nations Universal Declaration of Human Rights that states in Article 27(2): “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Authors and creators internationally have the right to decide when and how their works are disseminated to the public. Copyright is integral to individual freedom of expression and to peoples' ability to benefit from their own work in print, digital, and broadcast media. Copryight makes it possible for musicians to make a living from their music, for writers to dream of writing a bestseller, for filmmakers to recoup production costs by distributing their films, and for visual artists to be recognized for their original creations. It allows faculty and student authors the freedom to publish their works in venues of their choice to achieve success, and to make individual choices as to how and when their work is made available to the public. Copyright offers personal freedom for people everywhere to benefit from their intellectual and creative talent.
Nations adopt copyright laws to ensure that creativity and expression are appropriately rewarded and encouraged. The Copyright Act of 1976 (title 17, U.S. Code) is the current copyright law in the United States. This law applies to works created or published in the United States as well as to eligible foreign works being used in the U.S. It establishes whether a work is copyrighted in the U.S., who holds the copyright, how long it is copyrighted, and how a work may be used lawfully. Built into the law are limitations and exceptions intended to balance the rights granted to authors and copyright holders with the needs of people seeking to use their works.
Nearly all countries have copyright laws that protect the rights of authors and creators of works. Copyright laws differ from country to country; no two are alike. National copyright laws apply on the territory of each country. Copyright laws form a global system or web through the international treaties and agreements that countries negotiate to protect authors’ rights among nations. In the digital environment, the global dimension of copyright has taken on a new meaning, often requiring us to think beyond the provisions of U.S. law to the global copyright status of works.
Requirements for copyright protection in U.S.
There are certain basic requirements for copyright protection. A work must be original and minimally creative. In addition, in the Unites States, a work has to be fixed in a tangible medium of expression (written, recorded, taped, drawn, etched, etc.) to acquire copyright protection.
In the United States, copyright exists upon creation of the work. Before March 1, 1989 it was necessary in the U.S. for a copyright notice to appear on a published work as a condition for copyright protection, but it was never required as a condition of copyright protection for unpublished works . A copyright notice is the notice that appears on most published works that includes the symbol © or the word “Copyright,” or the abbreviation “Copr.”, the year of first publication, and the name of the copyright owner. Today a copyright notice is not required but is often recommended as a way of identifying the author or creator.
Copyright registration is not necessary to establish copyright in a work in the United States today. It is optional for either published or unpublished works. However, there are certain advantages to registration. Among them are that registration establishes a public record of the copyright. It is a requirement before an infringement suit may be filed in court for U.S. works, and it enables a copyright holder to seek claims for statutory damages and attorney’s fees in successful litigation. In other words, registration provides a way of enforcing one’s copyright but it does not establish the copyright. See FAQ on copyright registration.
Exclusive rights of the copyright holder
The U.S. Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- Makes reproductions of the work
- Create derivative works, or adaptations, from the original work- such as translations, new versions, films from novels, songs from poems, and musical arrangements
- Publicly distribute copies of the work by sale or other transfer of ownership, or by rental, lease, or lending
- Publicly perform the work
- Publicly display the work
- In the case of sound recordings, to publicly perform the work by means of digital audio transmission.
What is protected by copyright in the U.S.
Copyright law protects virtually all types of works created and used in educational institutions:
- Literary works, including compilations meeting minimal requirements for originality and creativity in selection and arrangement of content
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings, with the exception of U.S. sound recordings fixed before February 15, 1972 that are protected by state laws until they acquire federal copyright protection in 2067
- Architectural works- both architectural plans and physical constructions
What is not protected by copyright in the U.S.
- Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries
- U.S. federal government works
- Works in the public domain
- Data as fact. However, while factual data elements are not protected by copyright in the U.S., these forms of data may be protected:
- Data as a copyrighted work (literary work, chart, graph, audiovisual work, sound recording, etc.)
- Data as a compilation of data elements
The creator of a work is generally regarded as the author of a work.
However, in the United States if a work is created within the scope of employment or if it commissioned under certain conditions, the copyright will be held by the employer or commissioning entity under the definition of “work made for hire” in U.S. copyright law.
Also, copyright ownership may be set by contract or set out in an institutional policy. Scholars, instructors, and students often sign contracts that stipulate who holds copyright in the works they create. For example, adjunct faculty or instructors commissioned to create course materials for special types of academic programs may sign contracts setting ownership terms of the course materials. Before signing any contract that sets terms on copyright ownership, you should read the contract carefully and make sure that you understand what it means for your future use of the course materials you create.
Universities handle issues of copyright ownership by setting policies. Two policies at Rutgers University clarify copyright ownership in scholarly works, teaching materials, and student works:
It is important to understand the terms of any contract or policy that applies to works you produce at, for, or associated with the university. This is a fundamental responsibility of all faculty, students, and staff.
Copyright ownership: The Rutgers University Copyright Policy
Faculty, staff, and students employed by or studying at Rutgers should become familiar with the Rutgers University Copyright Policy. It defines who holds copyright in works created by faculty, staff, and students in Section IV.
This is an abbreviated summary of Section III on ownership:
- The Rutgers policy reaffirms the rights of faculty members to hold copyright in the scholarly and artistic works they create, such as books, monographs, journal articles, musical compositions, and artwork, in whatever format they are created, print or electronic, without regard to the extend [sic] of university resources involved in the creation of these works.
- Faculty, teaching assistants, and graduate assistants own copyright to pedagogical materials that they develop in the regular course of their teaching duties using resources ordinarily available to all or most faculty members.
- Copyright to works created by a teaching assistant or graduate assistant at the direction of a faculty member or the university typically will be owned by the faculty member or the university.
- Students typically own the copyright to works created as a requirement of their coursework, degree, or certificate program. The university, however, retains the right to use student works for pedagogical, scholarly, and administrative purposes.
- The university holds copyright in the following situations:
- Works created at the university’s direction, unless the university enters into a written agreement that provides otherwise
- Works created by staff within the scope of their employment
- Works created by students in their capacity as employees of the university
- Works created as a result of external funding where the terms of the funding require that copyright be in the name of the university.
- The university may also elect to own the copyright to works created using Substantial University Resources, as described Section IV of the policy.
- Copyrightable works that also qualify for protection under patent laws as inventions or discoveries or that arise from matters that also are covered by the university’s patent policy, shall be owned by the university and governed by the university’s patent policy, unless the university elects not to file a patent application or otherwise commercialize information that has been disclosed to it, or unless the university assigns its rights in the invention or discovery to the creator.
- The university claims no ownership of copyright to un-patentable software unless the software was created at the university’s direction, made use of Substantial University Resources, or was created by non-faculty employees working within the scope of their employment.
- Works created collaboratively by students, staff, faculty, and/or others may be owned in whole or in part by the university if they fall within one of the categories described above. When works are created collaboratively with other entities or institutions, the university’s interests and rights in such works shall be recognized and protected as consistent with this policy.
- In many other situations involving individuals who are not regular employees of Rutgers, the university requires that copyright to works created to support the functions of the university be assigned to the university by means of a written agreement. Consultants or contractors are also required to execute an agreement which includes the required assignment to the university prior to the work being performed.
Copyright ownership: The Legacy UMDNJ Copyright Policy
Faculty, staff, and students employed by or studying at legacy UMDNJ should become familiar with the Legacy UMDNJ policies associated with Intellectual Property: Copyrights & Royalties. It defines who holds copyright in works created by faculty, staff, and students in Section VII.A.
This is an abbreviated summary of Section VII.A on ownership:
- Institutional Works and Instructional Materials, as defined in the policy, shall be deemed as having been created within the scope of employment of the Creator, as defined in the policy, and copyrights in such works will be owned by the university, unless otherwise agreed in writing.
- Traditional Works of Scholarship, as defined in the policy, shall be deemed as having been created outside the scope of employment of the Creator, and copyright ownership in such works will be owned by the Creator.
- Ownership of the copyright in Other Intellectual Property, as defined in the policy, will be determined by the university on a case-by-case basis, based upon the level of use of University Resources in its creation.
- Absent the establishment of such by law or contract, the university shall assert no ownership rights to any Copyrightable Material, as defined in the policy, developed by a Creator before joining the university.
Joint copyright ownership, collective works, and compilations
Copyright ownership may be shared by more than one person or entity. Sometimes people collaborate to produce a work of research or scholarship. If you plan to collaborate with others, it may be a good idea to clarify up front who will hold copyright in the work and to set that in a contract if the project is high-profile or is likely to lead to financial or career opportunities.
When two or more persons create one work, several situations can exist: joint authorship, collective works, and compilations.
Joint authorship. Joint authorship involves works that form a unitary whole of which the parts are inseparable and the contributions are indistinguishable, such as when two or more people brainstorm and one work is produced. The copyright law defines a joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Typically all the coauthors will be listed as authors on a joint work.
Collective works. In other situations, separate works of different authors are put together to create a collective whole, such as when individually authored articles are put together into a journal issue. The copyright law defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” The term “composite work” is also sometimes used in this context, referring to a work which puts together the separate works of different authors.
Compilations. Compilations involve assembling works or other materials to create an original work of authorship that may acquire copyright in the original and creative selection and arrangement of material, apart from any copyright in the preexisting material. A typical example is an edited book compilation of articles. The copyright obtained in a compilation is sometimes referred to as a “compilation copyright.” The copyright law defines a compilation as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term ‘compilation’ includes collective works.”
Copyright transfer and inheritance
Copyrights may be transferred in part or in whole to other people or entities or they may be inherited by one or more heirs. Over time, the copyright to a work may belong to more than one person or entity. There is no comprehensive national or international registry for copyright transfers or inheritance. Some transfers are recorded in the records of the U.S. Copyright Office but most are not. This situation in part has created the issue of “orphan works,” works for which copyright holders cannot be identified or located because there is no practical way to search for them. The "orphan works" issues is often experienced by scholars when they need permission to use a work in a publication but cannot identify or locate the copryight holder.
The issue of copyright transfer is particularly relevant to scholars who sign publication agreements with publishers. Some publishers require that authors transfer their copyrights to the publisher as a condition for publication. Others base publication agreements on a non-exclusive license with the author, such that the copyright is not transferred.
It is important to understand the terms of your publication agreements. A publication agreement is a legal contract. Before signing a publication agreement, you should read it carefully and make sure that you understand what it means for your future use of the scholarly works you create. See section below on “Copyright in Academic Research and Publication” for further information on publication agreements.
Limitations and exceptions to exclusive rights
Limitations and exceptions in copyright law provide for a balance between the rights granted to authors and copyright holders, on the one side, and those of the people who wish to use works, on the other.
A number of limitations and exceptions in U.S. law enable uses of copyrighted works without prior permission or payment of a royalty. They include these exceptions that are relevant for educational institutions and libraries:
- Section 107 (Fair use)
- Section 108 (Limited rights for libraries and archives to reproduce and distribute works)
- Section 109 (First sale doctrine)
- Face to face classroom teaching exception (§110(1))
- Virtual classroom exception (§110(2) and §112)
- Reproduction for blind or other people with disabilities (§121)
The most important exception for educational institutions is the fair use exception. Fair use provides flexibility to courts for interpreting the law in specific situations if a use is challenged by a rightsholder and is used as a defense to copyright infringement. Unlike other exceptions, it does not consist of specific instructions for how works may be used.
The key to understanding fair use is that it does not define up front what exact uses may be made of a work and what uses would be infringing. Fair use is sometimes described as a “strategy for litigation” because the fairness of uses is determined by judges in court actions, based on the specific contexts of the case. Outside of litigation, the fairness of uses may be assessed by faculty, students, and staff by using reasonable judgment based on legal precedent. Rutgers University provides guidelines on fair use to help you make these judgments.
U.S. copyright terms vary according to the date a work was created, or the date a work was first published, or the date the author died. This is because before the current U.S. copyright law went into effect on January 1, 1978, the United States based copyright terms on the date of publication for published works. After January 1, 1978 general copyright terms were based on the lifespan of the author. The current general copyright term is "life of the author plus 70 years," but different terms apply to older works.
Copyright terms in the United States are set in Chapter 3 of the copyright law. This is a brief summary:
- If published before 1923, in public domain
- If published with notice from 1923-1963 and renewed, 95 years from date of publication
- If published with notice from 1964-1977, 95 years from date of publication
- If created, but not published, before 1978, life of author + 70 years or 12/31/2002, whichever is greater*
- If created before 1978 and published between 1978 and 12/31/2002, life of author + 70 years or 12/31/2047, whichever is greater
- If created from 1978- , life of author + 70 years*
- If published without notice from 1/1/1978-3/1/1989 and registered within 5 years, or if published with notice in that period, life of author + 70 years)
*for works of corporate authorship, works for hire, anonymous and pseudonymous works, term is the shorter of 95 years from publication or 120 years from creation.
This excellent chart provides more detail on copyright terms and make U.S. copyright terms easier to understand:
Peter Hirtle, “Copyright Term and the Public Domain in the United States”