Copyright Questions and Answers for Information Professionals: From the Columns of Against the Grain

Chapter 1: Copyright Basics

1 CHAPTER 1 Copyright Basics Librarians and others have asked a large number of fundamental copyright questions over the years that deal with basic copyright issues rather than with library copying, Internet use of copyrighted works, and so forth—questions such as, what does it take to create a copyrighted work? who owns the copyright in a specific work? and, what happens to the copyright in a work when the author is an employee or is now deceased? Section 102(a) of the Copyright Act of 1976 states that copyright attaches when an author creates an original work that is fixed in a tangible medium of expression. Works in which there is no copyright are in the public domain. Not all works can qualify for copyright, and section 102(b) details some exclusions from protection, including facts, processes, formulae, ideas, and procedures. The exclusive rights of the copyright holder are listed in section 106: reproduction, distribution , adaptation, public performance, public display and, for sound recordings, public performance by digital means. The statute dictates that the author of the work is the initial owner of the copyright, but the author may transfer one or more of these rights to a publisher or someone else. If a work is a work made for hire, then the employer is the author. There are significant copyright ownership issues concerning faculty authors in colleges and universities, as well as corporate employee authors. Chapter 1 2 Copyright ownership is separate from copyright registration, and one may own a copyright without registering it. Although registration of the work with the U.S. Copyright Office is not mandatory, it does provide important remedies for the owner. Moreover, an owner may bring suit only for registered works. Further, the owner may receive statutory damages and attorneys’ fees if the work was registered before the infringement occurred. In order to register a work, the owner completes a form and pays a one-time fee to the U.S. Copyright Office , which then provides a certificate of registration. One may use the records at the U.S. Copyright Office to determine whether a work produced after 1978 was registered (see http://www.copyright.gov/ records/). Although earlier records may be searched year by year, it is not easy to do. The University of Pennsylvania also has early records , and they are somewhat easier to search (see http://onlinebooks. library.upenn.edu/cce/). Many of the questions in this chapter center on the ability to copyright works such as legal briefs and translations of existing works. Formalities of copyright, including registration, duration of copyright, and notice, are also addressed. This chapter also contains questions concerning derivative works and the copyright status of works published in other countries. While most of the issues deal with the current Copyright Act,1 the previous statute, the 1909 Copyright Act2 is still relevant, especially for the term of copyright. The 1976 Copyright Act became effective January 1, 1978, and the term of copyright is life of the author plus 70 years for works with a personal author and for other works, 95 years after the date of first publication or 120 years after creation, whichever expires first. Under the 1909 Act, only published works received federal copyright protection, as opposed to those created and fixed. The term of copyright was 28 years and could be renewed for a second 28 years. Today, a work is eligible for copyright protection from the time it is created and fixed in a tangible medium of expression, whether or not it is published. In contrast, under the 1909 Act, unpublished works were protected by common law copyright, which meant 1 17U.S.C.§§101–1332(2006)(seehttp://www.copyright.gov/history/1909act.pdf). 2 Pub. L. 60–349, 35 Stat. 1075 (Mar. 4, 1909; repealed Jan. 1, 1978). Copyright Basics 3 that they had an indefinite term of copyright and never entered into the public domain. The variety of questions in this chapter is indicative of the degree of concern that librarians, faculty members, authors, and publishers have about copyright and the wide range of their interests. • • • Q1 What does it take to create a copyrighted work? Does it have to be registered for protection? Under the current law, the Copyright Act of 1976, to create a copyrighted work, all one has to do is to create an original work (one that is not copied from someone else...