Copyright C507 Scientific Writing Session 13

Why Have a Copyright Law?  Our Founding Fathers recognized that everyone would benefit if creative people were encouraged to create new intellectual and artistic works.  The US Constitution, written in 1789, include a Copyright Clause (Article 1, Section 8) The Congress shall have the Power…to promote the Progress of Science and useful Arts, by securing for limited times to Authors… the exclusive Rights to their… writings” The Congress shall have the Power…to promote the Progress of Science and useful Arts, by securing for limited times to Authors… the exclusive Rights to their… writings”

What is Copyright?  Copyright is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used

The Copyright Act of 1976  This is the federal law providing for copyright protection  It grants authors a bundle of intangible, exclusive rights over their work

The Copyright Act of 1976  These rights include: Reproduction right- the right to make copies of a protected work Reproduction right- the right to make copies of a protected work Distribution right- the right to sell of otherwise distribute copies to the public Distribution right- the right to sell of otherwise distribute copies to the public Right to create adaptations (“derivative works”)- the right to prepare new works based on the protected work Right to create adaptations (“derivative works”)- the right to prepare new works based on the protected work Performance and display rights- the right to perform a protected work or display a work in public Performance and display rights- the right to perform a protected work or display a work in public

Copyright  An author’s copyright rights may be exercised only by the author- or by a person or entity to whom the author has transferred all or part of her rights  If someone wrongfully uses the material covered by the copyright, the copyright owner can sue and obtain compensation for any losses suffered

Copyright  In a sense, copyright is a type of property- it belongs to the owner (usually the author) and the courts can be asked to intervene if anyone uses it without permission  And, like other forms of property, a copyright may be sold by the owner or otherwise exploited for economic benefit

How is Copyright Created and Protected?  A copyright automatically comes into existence the moment an author fixes his or her words in some tangible form- for example, the moment a book or article is typed, handwritten or dictated  No further action need be taken… but…  You should place a valid copyright notice on the work and register it with the USCO

How is Copyright Created and Protected?  Notice In the past, all published works had to contain a copyright notice, © followed by the publication date and owner’s name, to be protected. In the past, all published works had to contain a copyright notice, © followed by the publication date and owner’s name, to be protected. This is no longer true. Still, it is a good idea to include a notice on all published works so potential copiers will know the claim to ownership This is no longer true. Still, it is a good idea to include a notice on all published works so potential copiers will know the claim to ownership

How is Copyright Created and Protected?  Registration Prompt registration in the OSCO makes your copyright a matter of public record and provides a number of advantages if it needs to be enforced Prompt registration in the OSCO makes your copyright a matter of public record and provides a number of advantages if it needs to be enforced To register a work, you must fill out a registration form and deposit copies of your work with the USCO. This will cost $35. To register a work, you must fill out a registration form and deposit copies of your work with the USCO. This will cost $35.

What Copyright Protects  Copyright protects an author’s words if and to the extent they are original- that is, not copied from other author’s works  Thus, copyright extends only to material authors write themselves

What Copyright Protects  There is no reason to protect works whose creation is a purely mechanical or clerical act Protecting works such as a phone book or certain blank forms would not help develop the arts and sciences Protecting works such as a phone book or certain blank forms would not help develop the arts and sciences An author must employ a minimal amount of creativity in creating the work An author must employ a minimal amount of creativity in creating the work

What Copyright Protects  A work need not be entirely new to be protectible Copyright protects new material an author adds to a previously existing work Copyright protects new material an author adds to a previously existing work Copyright protects “derivative works.” These are works created by adapting or transforming previously written material into a new work of authorship, ie, a screenplay based on a novel or an English translation of a foreign work Copyright protects “derivative works.” These are works created by adapting or transforming previously written material into a new work of authorship, ie, a screenplay based on a novel or an English translation of a foreign work

What Copyright Protects  Copyright can also protect “compilations.” These are works in which preexisting materials are selected, coordinated and arranged so that a new work of authorship is created, ie, an anthology These are works in which preexisting materials are selected, coordinated and arranged so that a new work of authorship is created, ie, an anthology

Limitations on Copyright  We’ve seen that the purpose of copyright is to encourage intellectual and artistic creation  Paradoxically, giving authors too much copyright protection could inhibit rather than enhance creative growth  To avoid this, some important limitations on copyright protection have been developed

Limitations on Copyright  Ideas and facts are not protected Copyright only protects the words with which an author expressed facts and ideas; it does not protect the facts or ideas themselves. Facts and ideas are free for all to use Copyright only protects the words with which an author expressed facts and ideas; it does not protect the facts or ideas themselves. Facts and ideas are free for all to use You can see that works where the particular words used by the author are important enjoy the most protection, ie. novels, poems, plays You can see that works where the particular words used by the author are important enjoy the most protection, ie. novels, poems, plays

Limitations on Copyright  Fair use To foster the advancement of the arts and sciences, there must be a free flow of information and ideas. To foster the advancement of the arts and sciences, there must be a free flow of information and ideas. If no one could quote from a protected work without the author’s permission (which could be withheld or given only upon payment of a fee), the free flow of ideas would be stopped dead If no one could quote from a protected work without the author’s permission (which could be withheld or given only upon payment of a fee), the free flow of ideas would be stopped dead

Limitations on Copyright  Fair use To avoid this, a special “fair use” exception to author’s copyright was created To avoid this, a special “fair use” exception to author’s copyright was created Once can quote from a protected work for purposes such as teaching, criticism, reporting or research so long as the value of the copyrighted work is not diminished Once can quote from a protected work for purposes such as teaching, criticism, reporting or research so long as the value of the copyrighted work is not diminished

Limitations on Copyright  Works in the public domain Any work not protected by copyright is said to be in the public domain Any work not protected by copyright is said to be in the public domain This may include works where copyright was lost, has expired or is owned by the federal government This may include works where copyright was lost, has expired or is owned by the federal government This means the work belongs to public as a whole and anyone can use the work as he or she wishes This means the work belongs to public as a whole and anyone can use the work as he or she wishes Everything published 75 years ago or more is now in the public domain Everything published 75 years ago or more is now in the public domain

Copyright Ownership and Transfer of Ownership  The copyright in a protectible work is initially owned by the work’s author, but a person need not actually create the work to be its author for copyright purposes  A protectible work written by an employee as part of his or her job is initially owned by the employer (who is considered the author)  This is called a “work for hire”

Copyright Ownership and Transfer of Ownership  Like other property, copyright can be bought and sold  This happens all the time when authors work with publishers to publish their work, rather than self-publish  You transfer copyright to any journal you submit to. Why?

How Long A Copyright Lasts  If created after 1977, last for the life of an author plus 50 years  If created by an employee for an employer, it last 75 years from date of publication or 100 years from date of creation, whichever comes first  If created and published before 1978, lasts for 75 years from the date of publication

Copyright Infringement  Infringement occurs when a person other than the copyright owner exploits one or more of the owner’s exclusive rights without permission  This is also called copyright piracy

Copyright Infringement  The legal remedy for infringement is to sue in federal court  If you win, you can stop infringement, destroy copies, obtain damages and recover any losses

Other Protections for Intellectual Property  Trademarks  Patents  Trade Secrets  Contract Protection for Ideas

Copyright Registration  This is a legal formality by which a copyright holder makes a public record in the USCO in Washington, DC of some of the basic information about a copyrighted work, such as title, who wrote it and when and who owns the copyright

Copyright Registration  To register, you need to fill out an application form (Form TX), pay an application fee ($35) and send this with 2 copies of the work  Remember, this is registration, not the creation of copyright; that occurred at the moment you put your words down

Copyright Registration  Registration is a prerequisite for any infringement suit  Do not wait; if you do, and you face a suit down the road, it will cost an additional $200 to have an “expedited registration”  And if you are timely in registration and sue, you can automatically be awarded damages of up to $100,000 plus costs if you are successful

Timely Registration  Within 3 months of the first publication, or  Before the date the copyright infringement occurred  “Published” means when copies are made available to the public on an unrestricted basis

What Can and Should be Copyrighted  Any work containing material that is protected by copyright may be registered Published works- any published work of value should be registered within 3 months of publication Published works- any published work of value should be registered within 3 months of publication Unpublished works- consider who may see it and how likely they are to copy it Unpublished works- consider who may see it and how likely they are to copy it

Transfer of Copyright  This is done when, for example, you submit a paper to JMPT  This is called an “Assignment” of copyright- this means a transfer of all the exclusive rights that make up that copyright

Transfer of Copyright  “Exclusive license” is when a transfer is on an exclusive basis of one or more, but less than all, of a copyright owner’s exclusive rights  “Nonexclusive license” is when you give the right to someone one or more of a copyright owner’s rights on a nonexclusive basis- so you can give those same rights to as many others as you wish. This does not transfer copyright ownership

Using Other Author’s Words  This deals with those occasions where we need to use the words that others have written  Under what terms can we do so?

Using Other Author’s Words  Three-step analysis to determine if permission is required: 1. Are you taking another author’s expression? 1. Are you taking another author’s expression? This refers to the sequence of wordsThis refers to the sequence of words 2. Is the author’s expression protected by copyright 2. Is the author’s expression protected by copyright 3. Does your intended use of the protected expression go beyond the bounds of fair use? 3. Does your intended use of the protected expression go beyond the bounds of fair use?

Fair Use  Fair use allows us to use another author’s work without asking permission in certain limited situations

Fair Use Rules  Rule 1: Competing uses are not fair uses You cannot use the work in a way to impair the market for that work You cannot use the work in a way to impair the market for that work  Rule 2: Attribution does not make a use fair, but should always be provided Simply citing the work is not sufficient Simply citing the work is not sufficient  Rule 3: The more you take, the less fair your use is likely to be Consider quality as well as quantity Consider quality as well as quantity

Uses That Are Generally Fair Uses  Criticism and comment  News reporting  Research and scholarship  Non-profit education uses

Photocopying  This is generally not fair use  Teachers may photocopy for classroom use when The material to be copied is brief The material to be copied is brief The copying is done spontaneously The copying is done spontaneously The “cumulative effect” test is met The “cumulative effect” test is met One copy for one course onlyOne copy for one course only No more than 9 such episodes per termNo more than 9 such episodes per term Each copy contains a copyright notice Each copy contains a copyright notice