Copyright

What is copyright?

The U.S. Copyright Act of 1976 (17 USC) acts as the primary basis for copyright protection (and exceptions) in the United States. 17 USC § 102(a) states that copyright is vested immediately, with or without a registered copyright, upon the creation of "original works of authorship" that are "fixed in any tangible medium of expression." The objective of copyright is to encourage creativity, innovation, and the dissemination of new works.

- So what constitutes an original work? Originality implies a some "minimum amount of creativity" and that the work was not copied from another source. Copyright law also protects new works that are based on an existing work (called a derivative work), even if the existing work is no longer protected by copyright law.
- A "tangible medium of expression" means that the work must be fixed in a physical form that exists for more than a "transitory duration," which means that almost anything that can be seen, heard, or read by a machine is to be considered eligible.

What isn't protected by copyright?

Ideas, theories, facts, and discoveries (but creative compilations, interpretations, or works about facts may be protected)
Works produced by the U.S. government (but works produced by non-federal governments, contractors, or federal grant-funded works may be)
Works with expired copyright that have entered the public domain
Works that have not been fixed in a tangible medium

How long do copyrights last?

After a change in copyright law in 1989, no formal notice or registration of copyright needs to occur for a work to be protected - it is immediate and automatic. Most new works are protected by the Copyright Act for the duration of the life of the author or creator + 70 years, but some copyright holders extend copyright for longer.

Works published between 1923 and 1978 often are protected for up to 95 years after being "fixed in any tangible medium," but the law at that time required that copyright be renewed 28 years after first publication. Remember that works produced before 1978 may have expired copyright due to failure to formally register, produce a notice (©), or renew copyright! If the copyright was renewed, then it may have been for another 28 years, or another 47 years if published after 1960 (for a total of 75 years of protection). When the laws were changed yet again in 1978, a renewal could equal protection for up to 95 years, so it's safest to assume a 95 year copyright on these works.
Works that are made for hire (in which the rights belong to an employer or other legal entity rather than the original author) receive automatic copyright as well, but the copyright expires after the shorter of either 120 years from creation of the work or 95 years from its publication.
These rules of American copyright law also generally apply to foreign works that enter the jurisdictional boundaries of the U.S. At one point many foreign works were considered public domain in the U.S. but still protected in the author's home country, but this issue was remedied in 1996. Copyright was restored for many older foreign works at this time. For example, a Swiss publication from 1940 would get the full benefit of 95 years of protection, meaning it would not enter the public domain until 2035.

Who owns the copyright?

Typically, the creator of a new work is the copyright owner. However, if two or more authors work together to produce a work they share joint copyright ownership and cannot grant exclusive rights to anyone else without the consent of the other co-owner(s). A work made for hire usually provides the employer with copyright for the work produced, unless a contract allows the author to retain copyright over works produced within the scope of his or her employment. Copyright is not always retained by the original copyright holder - all or some of the inherent rights can be transferred to a publisher or anyone else by means of a written instrument signed by the original copyright owner.

Rights of a copyright holder

reproduce their work
distribute the work
prepare derivative works
publicly display the work
publicly perform the work

Acting in good faith

One of the most important things to remember when considering use of copyrighted material for an educational purpose is to execute a diligent and well-documented good faith effort for determining acceptable use. (See the section FAIR USE below.)

TEACH Act

The TEACH Act was added in order to provide additional guidance and protections for long-distance education programs.7 However, the TEACH Act only protects those who comply with a lengthy list of conditions, so educators and their educational institutions must take careful steps to fully implement these conditions before the TEACH Act can be used. Some requirements include:

Can only be used by accredited, non-profit educational institutions
Institutional policies must provide and institute policies specifying standards for complying with copyright law and provide informational materials regarding copyright3
Must provide a "notice to students that materials used in connection with the course may be subject to copyright protection"
Access to copyrighted materials must be limited to currently enrolled students (password protection or LMS like Canvas)
Must reasonably attempt to stop students from downloading or disseminating the protected works
Can display any work "in an amount comparable to that which is typically displayed in the course of a live classroom session," so try to limit the amount shared to "reasonable and limited portions"

Fair Use

17 USC § 107

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

- Keep in mind that transformative use of copyrighted material is a highly influential argument for fair use.
- To minimize the possibility for students' final versions of their digital stories to violate copyright (inadvertently, of course), instruct students to not distribute their final projects anywhere--not via email attachment, nor certainly posting online anywhere--other than directly to their professor.

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