Copyright Protection: What it Is, How it Works

Frequently asked questions to help you protect your creative work and avoid infringing the rights of others.

Contents

1 What role does a copyright notice play?
2 What is a valid copyright notice?
- - 2.0.1 International Copyright Protection
3 When can I use a work without the author’s permission?
- - 3.0.1 If You Want to Use Material on the Internet

What role does a copyright notice play?

Until 1989, a published work had to contain a valid copyright notice to receive protection under the copyright laws. But this requirement is no longer in force — works first published after March 1, 1989 need not include a copyright notice to gain protection under the law.

But even though a copyright notice is not required, it’s still important to include one. When a work contains a valid notice, an infringer cannot claim in court that he or she didn’t know it was copyrighted. This makes it much easier to win a copyright infringement case and perhaps collect enough damages to make the cost of the case worthwhile. And the very existence of a notice might discourage infringement.

Finally, including a copyright notice may make it easier for a potential infringer to track down a copyright owner and legitimately obtain permission to use the work.

What is a valid copyright notice?

A copyright notice should contain:

the word “copyright”
a “c” in a circle (©)
the date of publication, and
the name of either the author or the owner of all the copyright rights in the published work.

In the United States, a copyright owner can significantly enhance the protection afforded by a basic copyright. This is done by registering the copyright with the U.S. Copyright office. See Copyright Registration and Enforcement.

International Copyright Protection

Copyright protection rules are fairly similar worldwide, due to several international copyright treaties, the most important of which is the Berne Convention. Under this treaty, all member countries — and there are more than 100, including virtually all industrialized nations — must afford copyright protection to authors who are nationals of any member country. This protection must last for at least the life of the author plus 50 years, and must be automatic without the need for the author to take any legal steps to preserve the copyright.

In addition to the Berne Convention, the GATT (General Agreement on Tariffs and Trade) treaty contains a number of provisions that affect copyright protection in signatory countries. Together, the Berne Copyright Convention and the GATT treaty allow U.S. authors to enforce their copyrights in most industrialized nations, and allow the nationals of those nations to enforce their copyrights in the U.S.

When can I use a work without the author’s permission?

When a work becomes available for use without permission from a copyright owner, it is said to be “in the public domain.” Most works enter the public domain because their copyrights have expired.

To determine whether a work is in the public domain and available for use without the author’s permission, you first have to find out when it was published. Then apply the following rules to see if the copyright has expired:

All works published in the United States before 1923 are in the public domain.
Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.
For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
Lastly, if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.

The Copyright Office will check renewal information for you, at a charge of $150 per hour. (Call the Reference & Bibliography Section at 202-707-6850.) You can also hire a private copyright search firm to see if a renewal was filed. Finally, you may be able to conduct a renewal search yourself. The renewal records for works published from 1950 to the present are available online at www.copyright.gov. Renewal searches for earlier works can be conducted at the Copyright Office in Washington D.C. or by visiting one of the many government depository libraries throughout the country. Call the Copyright Office for more information.

With one important exception, you should assume that every work is protected by copyright unless you can establish that it is not. As mentioned above, you can’t rely on the presence or absence of a copyright notice (©) to make this determination, because a notice is not required for works published after March 1, 1989. And even for works published before 1989, the absence of a copyright notice may not affect the validity of the copyright — for example, if the author made diligent attempts to correct the situation.

The exception is for materials put to work under the “fair use rule.” This rule recognizes that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public. For example, scholars must be free to quote from their research resources in order to comment on the material. To strike a balance between the needs of a public to be well-informed and the rights of copyright owners to profit from their creativity, Congress passed a law authorizing the use of copyrighted materials in certain circumstances deemed to be “fair” — even if the copyright owner doesn’t give permission.

Often, it’s difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:

Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it’s usually not fair.)
How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use that if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).

As a general rule, if you are using a small portion of somebody else’s work in a non-competitive way and the purpose for your use is to benefit the public, you’re on pretty safe ground. On the other hand, if you take large portions of someone else’s expression for your own purely commercial reasons, the rule usually won’t apply.

If You Want to Use Material on the Internet

Each day, people post vast quantities of creative material on the Internet — material that is available for downloading by anyone who has the right computer equipment. Because the information is stored somewhere on an Internet server, it is fixed in a tangible medium and potentially qualifies for copyright protection. Whether it does, in fact, qualify depends on other factors that you would have no way of knowing about, such as when the work was first published (which affects the need for a copyright notice), whether the copyright in the work has been renewed (for works published before 1978), whether the work is a work made for hire (which affects the length of the copyright) and whether the copyright owner intends to dedicate the work to the public domain. If you want to download the material for use in your own work, you should be cautious. It’s best to track down the author of the material and ask for permission. Generally, you can claim a fair use right for using a very small portion of text for commentary, scholarship or smilar purposes.