Copyright Basics, The Public Domain, and Orphan Works Insert Date Insert Instructors’ Names / Titles The following slides are based on the work of the UCLA Library Scholarly Communications Steering Committee

Objectives Important Definitions Materials Covered by Copyright The “Bundle of Rights” Duration of Copyright The Public Domain Orphan Works

Disclaimer I am not an attorney, and cannot offer legal advice. The following information is presented to educate about copyright law and institutional policy in general terms. If you are unclear about your options when confronted with a specific legal issue related to copyright, you are urged to consult with an attorney with a background in copyright law.

Important Definitions Intellectual Property: Creations of the mind - creative works or ideas embodied in a form that can be shared or can enable others to recreate, emulate, or manufacture them. There are four ways to protect intellectual property - patents, trademarks, copyrights or trade secrets Copyrights protect works of authorship, such as writings, music, and works of art that have been tangibly expressed. (cont’d)

Important Definitions Patents are a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted. Trademarks protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce. Trade Secrets is information that companies keep secret to give them an advantage over their competitors.

Copyright’s legislative evolution Basic concept of Copyright can be traced to 5th Century Ireland Modern Origins in British law (Statute of Anne, 1709) First US law in 1790; many revisions over the years. The Copyright Act of 1976 is current law, also known as Title 17 of the U.S. Code. But there have been significant amendments to the law, such as: - changes spurred by joining the Berne Convention in The Digital Millennium Copyright Act (DMCA) of the Copyright Term Extension Act of 1998 (the “Sonny Bono Act”) - the “TEACH Act” of 2002.

“ The Congress shall have Power …To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  From Article 1, Section 8 of the U.S. Constitution The Copyright Act’s Constitutional Basis

“The primary objective of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and Useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of sciences and art.” –Justice Sandra Day O’Connor FEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340, (1991 )

What is covered under Copyright? § 102(a) Subject matter of copyright: original works of authorship fixed in any tangible medium of expression, from which they can be perceived, reproduced, or communicated, either directly or with the aid of a machine or device.

What Works are Protected? (1) literary works; (2) musical works, including accompanying words; (3) dramatic works, including accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

What is Not Covered Section 102(b): any idea, procedure, process, system, method of operation, concept, principle, or discovery Works in the public domain

§ 106: Exclusive Rights of the Copyright Holder (aka the “Bundle of Rights”) …the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (cont’d)

§ 106: Exclusive Rights of the Copyright Holder (aka the “Bundle of Rights”) …the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Exclusive Rights of the Copyright Holder (aka the “Bundle of Rights”) To sum up, the copyright holder retains authority to:  Make copies of the work  Make derivative works based on the original work  Distribute the work  Perform the work publicly  Display the work in a commercial setting The copyright owner may license some or all of these rights to others.

Works in the Public Domain “A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include: (1) the term of copyright for the work has expired; (2) the author failed to satisfy statutory formalities to perfect the copyright or (3) the work is a work of the U.S. Government” – Laura Gasaway

The trouble is… When do works fall into the public domain? –Works published in the U.S. before 1923 –Works published by the U.S. Federal Government –Between : Maybe… –Unpublished works: Maybe… It’s complicated!

Copyright Notice no longer required Prior to March 1, 1989: © notice required After March 1, 1989 : © notice optional …but still highly recommended

Copyright Term Extension Initial Term 14 years years years years years years years years years years years

Current Copyright Term For most works produced in the US since 1/1/1978*: For Works by an individual author:  Life of the Author + 70 Years For Corporate Works:  95 years from publication, or  120 years from creation, whichever expires first *items produced from 1978 through 3/1/89 that were published without a copyright notice, and without subsequent registration within 5 years, are now in the Public Domain.

“Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all the ways available to us. As you know, there is also Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.” Rep. Mary Bono (R-Cal) Congressional Record. October 7, 1998.

The “Copyright Genie” for Determining Copyright Status From the ALA Office for Information Technology Policy

Orphan Works Orphan works: works under copyright for which the owner cannot be identified –Ownership of works can (sometimes) be traced through the US copyright Office –Works no longer require formal registration with copyright office (since 1989); “no formalities” –Term of copyright is extremely long –Those choosing to use Orphan Works must carefully perform “due diligence” in attempting to locate the original author

Orphan Works Tracking copyright registration: The U.S. Copyright Office provides a searchable, online database of works registered and documents recorded by the U.S. Copyright Office since January 1, 1978 at: They will also search earlier years for a fee. Google Books has digitized the entire run of the Catalog of Copyright Entries prior to 1978, which can be found here:

Orphan Works However, the user of an orphan work is liable for copyright infringement and punitive damages if the copyright owner emerges (up to $150,000 per infringement!) These works are copied or adapted at the user’s peril The situation stifles the creative reuse and expansion of these works New orphan work legislation stopped short of being passed by 110 th Congress (Senate bill passed; House bill did not pass)

Questions/Help ? The UCLA Library can help when determining whether an item is protected by copyright. When in doubt, consult with a librarian! us:

Thank You! Acknowledgements The preceding slides are based on the work of the UCLA Library Scholarly Communications Steering Committee Photo from flickr: