Learn about the foundations of U.S. copyright law and how they apply in a higher education setting, including the concept of fair use and the TEACH Act.
U.S. Copyright Law
Derived from specific language in the Constitution, U.S. copyright law (found in Title 17 of the U.S. Code) exists to foster creativity and spur the distribution of new and original works. It does this by protecting original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. This protection covers both published and unpublished works, regardless of the nationality or domicile of the author. The law grants copyright holders, such as publishers, writers, and other types of creators, the exclusive right to reproduce, perform, distribute, translate, and publicly display their original works. The law balances these rights with several exceptions and limitations, such as fair use. Simply stated, this means that unless the situation meets one of the exceptions outlined in the Copyright Act, users should get the copyright holder’s explicit permission to lawfully reuse, reproduce, or redistribute a copyright-protected work—even if that takes place within the walls of one institution.
In the U.S., copyright protection automatically exists from the moment an original work is fixed in a tangible form of expression. A work is “original” if it is created independently (i.e., not copied from elsewhere) and sufficiently creative. A work is “fixed” when it is expressed in a sufficiently permanent medium so that it can be perceived, reproduced, or communicated for more than a short time, like when you write it down or record it (even electronically).
Because it’s automatic upon fixation, copyright owners do not need to take any other steps like filing for registration with the U.S. Copyright Office or using a copyright notice (the familiar © symbol and information) to protect their works.
Nevertheless, it is a good idea to register your works with U.S. Copyright Office and to use a copyright notice. First, registration is very beneficial. Registering your works with the U.S. Copyright Office provides evidence that everything on the registration certificate is accurate (such as the owner and date of creation). Additionally, if the work is a U.S. work, you have to register it with the Copyright Office before you can bring a lawsuit for infringement. Also, importantly, if you ever need to seek statutory damages or attorney fees in an infringement case, you must have registered your work (all works—not just U.S. works) with the Copyright Office within a certain time frame. Second, using a copyright notice is useful because it lets people know that you are asserting your copyright claim to the work. Copyright notices should include three elements: (1) the symbol © (the letter C in a circle), or the word “Copyright” or the abbreviation “Copr.”; (2) the year when the work was first created; and (3) the name of the holder of the copyright. An example is “© 2021 Jane Doe.”
Only the author, or those deriving their rights through the author, can rightfully claim copyright. In the case of works made for hire, the employer—not the writer—is considered the author.
Difference Between Ownership of Copyright and Ownership of Physical Items Including Copyright Protected Materials
Physical ownership of an item such as a book, painting, manuscript, or CD is not the same as owning the copyright to the work embodied in that item. Why? Because the transfer of the physical copy does not transfer the copyright holder’s rights to the work. This means that, if you obtain a physical copy of something like a book, you have not obtained the right to reproduce, publicly display, or perform it, or otherwise exercise one of the copyright owner’s exclusive rights. Even including an attribution on a copy of a work that was copied by an individual (for example, putting the author’s name on it) does not eliminate the need to obtain the copyright holder’s consent for further uses that implicate one of the holder’s exclusive rights.
To use copyrighted materials lawfully, you should get permission from the applicable copyright holder or a copyright licensing agent or confirm that the use isn’t subject to an exception or limitation like the first sale doctrine, mentioned below. When an organization is a licensee of one of CCC’s annual copyright licenses, the legal or library team may be able to verify coverage. For non-licensees, individual permissions—also known as pay-per-use—can also be requested on CCC Marketplace.
It is important to note that, even though you don’t own the copyright just by obtaining a physical object, copyright’s First Sale Doctrine (Section 109 of the U.S. Copyright Act) allows owners of a physical copy of a copyright-protected work to lend, resell, dispose, etc., of the physical item.
Duration of Copyright
The term of copyright protection depends upon the date of creation or publication. A work created on or after January 1, 1978, is ordinarily protected by copyright from the moment of its creation until 70 years after the author’s death.
For works made for hire, anonymous works, and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), however, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.
For works created, published, or registered before January 1, 1978, or for more detailed information, you may wish to refer to the public domain section of this guide, below, or read the U.S. Copyright Office’s Circular 6a (“Renewal of Copyright”), Circular 15a (“Duration of Copyright”), and Circular 15t (“Extension of Copyright Terms”), all available at the U.S. Copyright Office’s website, www.copyright.gov/circs.
All original works created since 1989, except those created by the U.S. federal government, are presumptively protected by U.S. copyright law. As a result, the chances are high that many of the materials of greatest interest to students and faculty are protected by copyright.
U.S. copyright law’s protections, however, do not apply to works in the public domain. The public domain does not refer to all works that are publicly available. Instead, the public domain comprises all works that are either no longer protected by copyright or never were.
Public domain materials generally fall into one of categories:
- Things never protected by copyright, including:
- Facts, numbers, ideas, methods, and processes
- Materials that are not sufficiently creative, such as words and short phrases, mere listings of ingredients or contents, and common symbols and shapes, among other things
- Materials created by the U.S. federal government
- Works that were once protected by have fallen out of copyright, including:
- All works first published in the United States before 1926.
- Works published from 1926 to 1963 on which copyright registrations were not renewed. Under the law existing at the time, works that were published in the United States but not registered for copyright prior to 1963 entered the public domain within several years of their publication.
- Works published before March 1989 that failed to include a proper notice of copyright.
Works may also be “dedicated” (i.e., donated) to the public domain but it is usually hard to prove that dedication has occurred.
It is also recommended that people consider other forms of possible legal protection that may be in place, such as trademark or patent protection, before reusing third-party content.
Penalties for Copyright Infringement
By reproducing, republishing, or redistributing the work of a copyright holder without permission, you may be violating that holder’s rights under the Copyright Act. If the copyright holder has registered the work with the U.S. Copyright Office prior to filing suit for infringement, the copyright holder may sue for compensation as well as for an injunction to cease further infringement. Court-ordered compensation may include attorneys’ fees and damages such as (i) the plaintiff’s lost profits or the defendant’s ill-gotten profits from the infringing activity or (ii) statutory damages ranging from $250 to $30,000 per infringing act (or up to $150,000 per infringing act if the court determines that the infringement was willful).
All claims alleging violations of the Copyright Act must be brought in federal, not state, court. There is also an alternative, voluntary tribunal in the U.S. Copyright Office in which some so-called small copyright claims can be heard (those claims must have a monetary value of $30,000 or less).
You may also be criminally liable if you willfully copy a work for profit or financial gain, or if the copied work has a value of more than $1,000. In these cases, penalties can include a one-year jail sentence plus fines. If the value is more than $2,500, you may be sentenced to five years in jail plus fines. Criminal penalties generally apply to large-scale commercial piracy.
There is no such thing as an “international” copyright that automatically protects a work throughout the world. However, the Berne Convention, the principal international copyright treaty, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them.
As of October 2020, 179 countries, including the United States, belong to the Berne Convention.
The Berne Convention further states that the copyright protections are based upon the laws of the country where the misuse of the copyright-protected work takes place (rather than the country where the work originated). For example, if you photocopy an article in the U.S., then U.S. copyright law applies to determine whether that copy was lawful. Similarly, if you digitize an image in the UK, the copyright laws of the UK apply to determine whether that digitized use is lawful. There are grey areas, however, when it comes to the online usage of copyright-protected content. For example, if an article is uploaded in the U.S. and then viewed on a website in Australia, where is the “copying” taking place—and is more than one “copy” being made? Courts have yet to provide definitive answers as to what country’s laws should be used to determine online copyright infringement in this case. To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of “when in doubt, obtain permission” in these situations.
What Is Protected by Copyright?
- Literary works
- 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
- Architectural works
- Computer software
- Works that have not been fixed in a tangible form of expression by being written, recorded or captured electronically.
- Titles, names, short phrases and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listings of ingredients or contents.
- Ideas, facts, data, procedures, methods, systems, processes, concepts, principles, discoveries or devices, as distinguished from a description, explanation or illustration.
- Works consisting entirely of information that are natural or self-evident facts, containing no original authorship, such as the white pages of telephone books, standard calendars, height and weight charts and tape measures and rulers.
- Works created by the U.S. Government.
- Works for which copyright has expired; works in the public domain.
Understanding Fair Use
Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works, by their nature, do not require permission from the copyright holder or its agent.
The Copyright Act does not spell out the specific types of content reproduction that qualify as fair use. It offers an outline as to how to analyze whether fair use may apply in a particular situation. As a result, the Copyright Act leaves it up to the individual to determine, based upon the factors in Section 107 of the Act, whether fair use applies in each particular circumstance (and then leaves it up to a judge to make the final determination in a case if the copyright holder files suit for infringement). To avoid a potential legal challenge from the copyright holder, many institutions follow a policy of “when in doubt, obtain permission.”
Determining Fair Use
Fair use is very fact-specific and often applies to commentary, parody, news reporting, research, and education. However, not all uses in an academic context are automatically considered fair use, and not all uses in a business context are automatically not fair use.
U.S. copyright law specifies four factors for use in fair uses analyses. No one factor alone dictates whether a particular use is indeed fair use. Consideration of all four factors in Section 107 of the Copyright Act, weighing each separately and then all together, is needed to help determine whether or not copyright permission is required.
The four factors listed in Section 107 are described below.
- The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.
In evaluating the purpose and character of the use, the history of the statute tends to favor non-profit educational uses over commercial ones. However, there are instances in which commercial uses would qualify as fair use and other instances where educational uses would not meet the criteria.
Courts also favor uses that yield a “transformational” result. Thus, extensive quoting from a work the purpose of which is to produce a critical analysis of that work is more likely a fair use. In contrast, “slavish copying” that merely reproduces a copyrighted work (and thereby simply replaces paid-for copies of the work) is less likely a fair use.
- The nature of the copyrighted work.
This factor focuses on the work allegedly being infringed. The legislative history states that there is a difference between reproducing a short news note and reproducing a full musical score. Uses of factual works such as scientific articles are more likely to be found fair uses than uses of creative works such as novels; however, any distinction between “factual” and “creative” is vague enough that many courts give this factor less weight.
- The amount and substantiality of the portion used in relation to the copyright-protected work as a whole.
This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. Generally, the larger the amount used, the less likely a court will find the use to be a fair use. “Amount and substantiality” is also a qualitative test; that is, even though one takes only a small portion of a work, it still may be too much if what is taken is the “heart of the work.”
Click here for a U.S. Supreme Court example of a use of “the heart of the work” (but still less than 1/3 of 1 percent of the total work) being found to not be a fair use.
- The effect of the use on the potential market for or value of the copyright-protected work.
This factor considers whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. It looks at whether the nature of the use competes with or diminishes the potential market for the use that the owner is already exploiting or can reasonably be expected soon to exploit. Even if the immediate loss is not substantial, courts have found that, should the loss become great if the practice were to become widespread, then this factor favors the copyright holder.
While these four factors are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a simple formula; therefore, any fair use analysis must be conducted on a case-by-case basis considering each of the four factors separately, and then weighing them together, in light of the circumstances of the situation at hand.
Examples of fair use:
- Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations.
- A parody that includes short portions of a work.
- A summary of an address or article, or a review of the work, which may include quotations of short passages of the copyright-protected work.
Exceptions for Libraries and Archives
Section 108 of the Copyright Act provides specific exceptions for libraries and archives in which they may make reproductions without obtaining permission from, or providing compensation to, the copyright holder.
To qualify for the exception, the library or archive must:
- Produce no more than three reproductions (and in some circumstances no more than one reproduction) of a given work.
- Derive no direct or indirect commercial gain from the reproduction.
- Be open to the general public or to persons researching the specialized area in the library collection.
- Include a notice of copyright or, in the absence of a notice on the work copied, a note that the work may be protected under copyright law.
In these instances, reproduction is meant to be isolated and unrelated; it should not result in the related or concerted reproduction of the same materials over a period of time. Neither should reproduction be systematic and serve as a substitute for a subscription to or purchase of the original work.
Reproduction under the exception may be done for the purpose of:
- Library user requests for articles and short excerpts. At the request of a library user or another library on behalf of a library user, the library or archive may make one reproduction of an article from a periodical or a small part of any other work. The reproduction must become the property of the library user. The library must have no reason to believe that the reproduction will be used for purposes other than private study, scholarship, and research. The library must also display the copyright register’s notice at the place where library users make their reproduction requests.
- Archival reproductions of unpublished works. Up to three reproductions of any unpublished work may be made for preservation, security, or deposit for research use in another library or archive. This may be a photocopy or digital reproduction. If it is a digital reproduction, it may not be made available to the public outside the library or archive premises. The library or archive must also own the copy of the work in its collection before reproducing it.
- Replacement of lost, damaged, or obsolete copies. The library or archive may make up to three reproductions (including digital copies) of a published work that is lost, stolen, damaged, deteriorating or stored in an obsolete format. Any digital reproductions must be kept within the confines of the library (that is, available on its computer but not placed on a public network).
- Library user requests for entire works. If certain conditions are met, the library may make one reproduction of an entire book or periodical at the request of either a library user or another library on behalf of a user. The library must first determine after reasonable investigation that a reproduction cannot be obtained at a reasonable price. The reproduction must become the property of the library user. The library must have no reason to believe that the reproduction will be used for purposes other than private study, scholarship, and research.
The TEACH Act
Roles, Rules, and Responsibilities for Academic Institutions
Enacted in 2002, the Technology, Education, and Copyright Harmonization (TEACH) Act was the product of discussion and negotiation among academic institutions, publishers, library organizations, and Congress. It offered many improvements over previous regulations, specifically by amending sections 110(2) and 112(f) of the U.S. Copyright Act.
A Brief Guide to TEACH
Although copyright law generally treats digital and non-digital copyright-protected works in a similar manner, special digital uses, such as online distance learning and learning management systems, require special attention. Some of the special copyright requirements of online distance learning are specifically addressed by the TEACH Act.
The TEACH Act facilitates and enables the performance and display of copyrighted materials for distance education by accredited, non-profit educational institutions (and some government entities) that meet the Act’s qualifying requirements. Its primary purpose is to balance the needs of distance learners and educators with the rights of copyright holders. TEACH applies to distance education that includes the participation of any enrolled student, on or off campus.
- Instructors may use a wider range of works in distance learning environments.
- Students may participate in distance learning sessions from virtually any location.
- All participants enjoy greater latitude when it comes to storing, copying and digitizing materials.
In exchange for unprecedented access to copyright-protected material for distance education, TEACH requires that the academic institution meet specific requirements for copyright compliance and education.
In order for the use of copyrighted materials in distance education to qualify for the TEACH exemptions, the following criteria must be met:
- The institution must be an accredited, non-profit educational institution.
- The use must be part of mediated instructional activities.
- The use must be limited to students enrolled in a specific class.
- The use must either be for ‘live’ or asynchronous class sessions.
- The use must not include the transmission of textbook materials, materials “typically purchased or acquired by students,” or works developed specifically for online uses.
- Only “reasonable and limited portions,” such as might be performed or displayed during a typical live classroom session, may be used.
- The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright and include a notice of copyright on the online materials.
- The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut & paste disabling, etc.
What TEACH Does Not Allow
The exemptions under TEACH specifically do not extend to:
- Electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL).
- Commercial document delivery.
- Textbooks or other digital content provided under license from the author, publisher, aggregator, or other entity.
- Conversion of materials from analog to digital formats, except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures.
It is also important to note that TEACH does not supersede fair use or existing digital license agreements.
Ultimately, it is up to each academic institution to decide whether to take advantage of the copyright exemptions under TEACH. This decision should consider both the extent of the institution’s distance-education programs and its ability to meet the education, compliance, and technological requirements of TEACH.
The Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) was enacted into law in 1998 to amend U.S. copyright law to address some of the issues unique to copyright in the digital environment. In order to help copyright holders, protect their digital content while also encouraging online models, the updated law contains provisions providing internet service providers (ISPs) with a safe harbor against certain claims of infringement if they implement a notice and takedown system, forbidding circumvention of digital protections, and protecting copyright management information.
The anti-circumvention provisions, included in Section 1201, prohibit the unauthorized circumvention of technological measures that control access to or restrict the use of a copyright-protected work. Such technological measures may involve a password or encryption; breaking the password or encryption is illegal unless there is a specific exception. There are several permanent exceptions, and the U.S. Copyright Office holds a triennial rulemaking, supervised by the Library of Congress, to issue additional exceptions.
The copyright management information provision, included in Section 1202, prohibits certain types of removal of information that identifies copyright ownership in a work. Copyright management information includes the title of a work, the name of the author or copyright holder and other identifying information. There is also a provision more generally known as the notice and takedown provision. Section 512 provides some safe harbors for ISPs that set up a notice and takedown system in which copyright owners can request infringing material be removed, subject to a counternotice by the alleged infringer. To take advantage of the safe harbor, an ISP must comply with all of Section 512’s relevant requirements, which include, among other things, appointing a designated agent to receive reports of copyright infringement, registering the designated agent with the U.S. Copyright Office, developing an adequate notice and takedown process, complying with that process, and implementing policies for repeat infringers.