Radio Jim : Copyright Basics

9:15 am May 19, 2004

Eric Slater, manager, Copyrights & Permissions, American Chemical Society

[This is a very basic review of copyright law. A very conservative view of the act. Does not give much respect to efforts of Lessig, copyleft, and others that want to ‘liberalize’ copyright laws]

Definition of work made for hire – (important to know if the owner is the author, or the sponsor (employer, grantor, etc)).

A work made for hire falls within nine categories:

Contribution to a collective work
A translation
Compilation
Supplementary work
An instructional text
A test
Answer material for a test

AND the parties expressly agree in a written instrument that the work shall be considered a work made for hire

What’s Protected

Section 102(a) of Copyright Act (What’s protected)

Literary

Musical

Pantomume

Dramatic

Pictorial

Motion Picture

Computer programs (generally considered to be literary works)

Sound recordings

Architectural works

Remember these categories are designed to be very broad

What’s not protected (Section 102 (b))

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

Works not fixed in tangible medium
Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, devices (may be protected under patent law)
Standard calendars, rulers, lists or tables taken from public domain documents or soures and other works containing no original authorship
Titles, names, short phrases, slogans, familiar symbols or designs
Listings of ingredients or contents

Key to remember nuances between copyright and trademark when it comes to titles.

Notice of Copyright

Works published prior to March 1, 1989 must contain a copyright notive to avoid loss of copyright. After that date, it is voluntary.

Lots of folks have posted content on Internet without a notice. Those that assume that no notice means no copyright are wrong. There is also the idea if it is on the Internet it is free – and that is not true either.

Concepts and other Categories

Originality and fixed in tangible medium

Applies to any format

Idea/expression

Ideas fixed in a tangible expression are protected

Facts and compilations

Facts alone are not protected
Feist – phonebooks are not a creative endeavor and therefore are not protected

Compilations

A work formed by collecting and assembling pre-existing materials in such a way that the new work constitutes an original work of authorship

Collective Work

Compilation of materials that separately constitute independent works, such as an anthology, or periodical issue.

Derivative works

Recasting, adapting, transforming

Owners have Exclusive rights (section 106)to

Reproduce
Prepare derivative
Distribute
Perform
Display sound recordings

Fair Use (Section 107)

What does it mean?

Allows to do things otherwise exclusive (fair use as defined in the act is a very small part of the act. But based on questions and statements to our office, you would think fair use was half the law. ) Fair use means you can refer to copyrighted content for :

Criticism
Comment
News reporting
Teaching (not all teaching uses constitute fair use)
scholarship

Must pass four-factor test

Purpose and character
Nature of work
Amount of work used
Affect on market value of work

Points out that Supreme Court held fair use applied to Sony Betamax case but Ninth District in Napster case said no. Course, the technology of Napster allows distribution at an instantaneous level that copying of beta tapes did not support.

Section 108 (libraries)

Very limited abilities to copy (the list of exceptions is more than a page – see code).

Uses 1923 as cutoff as to what works in public domain

Registration

Required to obtain statutory damages, to institute an infringement suit
Don’t have to renew work.
Says rights became rights plus 50 in 1976

Works can be

Transferred
In writing
May be recorded in Copyright office

DMCA

(more in next session)

Questions

Primer RPAC available in primer

As an individual person, if I convert to alternative format for use, is that a violation of copyright?

If for personal use, probably not. Though I do not want to say definitively.

The only reason not is if it fell under fair use exception. There’s been no court decision if that is fair use. Better response from practical aspect where there’s no rights holder in the world that would prosecute the situation even though it is a copyright infringement (probably).

Is there any reference to the ‘for sale’ doctoring…

You can give it away, sell at a flea market or garage sale. Would not permit copies and distribution of the copies.

Basically applies to disposition of physical copy of the work. Has nothing to do with respect to rights of work within the physical. Electronic transmittal of the work involves reproduction and is therefore not permissible.

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