What Journalists Need to Know About Copyright

7/27/2019 What Journalists Need to Know About Copyright

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September 2013

What Journalists

Need to Know

About Copyright


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What Journalists Need to Know

About Copyright

The Purpose o Copyright

In the United States, the concepts o copyright and patent law were

carried over rom the laws o England to state laws, and were then

introduced at the ederal level in the U.S. Constitution in 1787. Article

I, Section 8, Clause 8, o the Constitution reads: the Congress shall

have powerto promote the progress o science and the useul arts, by

securing or limited time to authors and inventors the exclusive right to

their respective writings and discoveries.

In 1790, the First Congress implemented the copyright provision o the

U.S. Constitution. The original United States copyright law was based on

the Statute o Anne, enacted eighty years earlier by Englands Parliament

in 1710. The Statute o Anne established initial ownership o copyright by

authors and a xed term o protection.

Since the U. S. Copyright Act o 1790, United States copyright statutes

have been revised numerous times. The scope o copyright protection

has been broadened to include the products o new technologies; the

term o copyright has been gradually, but substantially, lengthened; and

case law has evolved to account or the many ways in which works can

be used, licensed and inringed.


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About Copyright

US Copyright LawBased on specic language in the United States Constitution, copyright law exists to

oster creativity and spur the distribution o new works. The law initially grants authors,

such as musicians, artists, writers and other types o creators, the exclusive rights to

their works.

The copyright in a work immediately becomes the property o the author who created it.

Only the author, or those deriving their rights rom or through the author, can rightully

claim copyright. In the case o works made or hire the employernot the writeris

considered the author. Generally speaking, works made or hire are works made i

the scope o the employment relationship and certain commissioned works i specied

by contract.

United States copyright law protects both published and unpublished works, regardless

o the nationality or domicile o the author.

As stated in the U.S. Copyright Act, copyright law protects original works o authorship,

including literary, dramatic, musical, artistic, and certain other intellectual works xed

in any tangible means o expression, now known or later developed, rom which they

can be perceived, reproduced or otherwise communicated directly or with the aid o a

machine or device.

In the United States, copyright protection exists rom the moment a work is xed in a

tangible orm o expression, such as a writing, or an audio or video recording.

Works that are not xed may not be protected by copyright. For example, an

improvisational dance routine would not be protected by copyright until it is written in

dance movement notation, recorded on video or otherwise xed in a tangible medium.

Further, it is the expression o the work, rather than the idea or concept that is protected

by copyright. Thus, or example, nothing in copyright would prevent two authors

rom independently writing novels on the very same topic, or two artists rom rendering

their own respective paintings o the same portion o landscape, so long as no

unauthorized copying is taking place. I, by contrast, an author were to incorporate into

its own novel specic ctitious characters rom another authors work without obtaining

permission, then, barring air use or another exemption, this would be an example o

protected expression being used in violation o the copyright owners rights, resulting

in copyright inringement.

The categories o subject matter identied in the copyright law should be viewed

broadly. For example, computer programs and most compilations may be registered as

literary works; maps and architectural plans may be registered as pictorial, graphic, and

sculptural works.

In the UnitedStates, copyrightprotection existsrom the momenta work is xed ina tangible orm oexpression, suchas a writing, or

an audio or videorecording.


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About Copyright

Initial Copyright OwnershipThe copyright in a creative work is initially the property o the author. Only the author, or

those deriving rights through or rom the author, can claim copyright rights. Copyright

is secured automaticallywhen the work is created and xed in a tangible orm, as

discussed previously.

In the case o works created in the scope o an employment relationship and other works

made or hire under the copyright law, the employer is the copyright holder o the works

created by its employees. For works that are contracted, however, the party perorming

the contracted work is considered the author o the work unless the agreement or the

contracted work species otherwise. And, in the case o joint works, two or more authors

can own the copyright to a work.

It is unlawul to violate any o the rights provided to the owner o a copyright.

Section 106 o the Copyright Act lists the primary exclusive rights o the copyright

holder. They are:

The right to reproduce the work

The right to create a derivative work

The right to distribute copies

The right to perorm the work publicly

The right to display the work publicly

Transer

Any exclusive transer o the rights o the copyright owner must be in writing and bear

the signature o the copyright owner in order to be valid and enorceable. There are two

types o exclusive transers. The rst is called an exclusive license, which provides the

licensee with the exclusive right to exercise some or all o the rights o the copyright

owner subject to the terms imposed by the copyright owner. The second type o

exclusive transer is called an assignment o copyright, which conveys ownership o

all or some part o the copyright owners exclusive rights to the transeree. In addition

to exclusive transers, the copyright owner may grant non-exclusive licenses, or

permissions, to use its copyrighted work; these are not required to be in writing.

Unique to transers o copyright is a non-revocable right or the original copyright

owner to terminate a copyright transer within a designated window that opens a

certain number o years ater the transer, generally 35 years in the U.S. The provision was

included to ensure that the original creator or his or her heirs would have an additional

opportunity to market a work where its value may have signicantly increased in the

time ollowing the transer.

Any exclusivetranser o therights o thecopyright ownermust be in writingand bear thesignature o thecopyright owner

in order to be validand enorceable.


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About Copyright

The use o acopyright noticeis recommended,whether or not thework is registeredwith the UnitedStates CopyrightOce, because

it reminds thepublic that thework is protectedby copyright.

Divisibility o RightsThe copyright owners rights in his or her work may be viewed as a bundle o sticks,

each o which represents a separate right, and each o which can be independently sold,

licensed or otherwise transerred. On a high level, the bundle consists o the ve main

exclusive rights o the copyright holder listed in the copyright law:

1. copying

2. reproduction

3. creation o derivative works

4. public perormance

5. public display

Each o those rights is divisible into smaller and smaller pieces that are themselves

independently transerable. For example, the author o a novel may assign his or her

exclusive reproduction and distribution rights to one publisher or the U.S., to another

publisher or all o Europe and to yet another publisher or the rest o the world. The

author may assign its right to create a lm version o its novel but retain the right to

create new novels based on the novel. In principle, there is no limit on the divisibility

o the copyright owners rights.

Copyright Registration

The way copyright protection is secured in the United States is requently

misunderstood. Once a work is xed in a tangible orm, no other action is required to

secure copyright protection. Registration with the U.S. Copyright Oce is recommended

because inringement lawsuits may be brought only on registered works. While a work

may be registered at any time, no damages are available or inringements that occur

beore registration o the copyright. In addition, statutory damages are only available

or works that were registered with the Copyright Oce within a certain timerame

specied in the copyright law. A U.S. work must be registered with the U.S. Copyright

Oce beore suit may be brought or copyright inringement.

Copyright Notice

The use o a copyright notice is no longer required under United States law. This

requirement was eliminated when the United States adopted the Berne Convention,

efective on March 1, 1989. However, the use o a copyright notice is recommended,

whether or not the work is registered with the United States Copyright Oce, because

it reminds the public that the work is protected by copyright.


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About Copyright

Copyright DurationUnder current U.S. law, a work created on or ater January 1, 1978 is ordinarily protected

by copyright rom the moment o its creation until 70 years ater the authors death.

For works published prior to January 1, 1978 and still protected by copyright on that day,

the term o protection was increased by 20 years. Thereore works created in 1923 or

later that were still protected by copyright in 1998 will begin entering the public domain

in 2019. However, some works published in 1923 or later may already be in the public

domain i their copyrights were not registered and renewed between 1923 and 1978.

The meaning o the term public domain as used in copyright law is discussed in the

next section o this workbook.

For works made or hire, anonymous works and pseudonymous works, the duration ocopyright protection is currently 95 years rom publication or 120 years rom creation,

whichever is shorter.

Public Domain

A work is said to be in the public domain i it is no longer protected by copyright, or i it

was never protected by copyright. It is a common misconception that i a work can be

accessed or ree on the Internet, it is in the public domain and can be reely used this

is not true. Simply because a work is publicly available does not mean that it is in the

public domain. Indeed, in most cases, works that are made publicly available via theInternet or otherwise are protected by copyright and require permission to be copied,

redistributed or otherwise used in any way that would implicate the copyright owners

rights in the work.

Works created prior to 1923 are in the public domain in the United States because o the

lapse o time. Works created by the United States government at any time are likewise in

the public domain because U.S. law denies protection to such works based on the belie

that such works belong to all citizens.

A work can be dedicated, or donated, to the public domain. I the copyright holder o

a work does not want to retain his/her copyright rights and would rather allow the ree

use o materials without the user needing to obtain permission or pay royalty ees, the

author may donate the work to the public domain. A work can be donated to the public

domain simply by attaching a statement to that efect to the work.

To avoid alling into the public domain, works published between 1923 and 1963 had

to be registered with the U.S. Copyright Oce on a timely basis and then renewed in

their 28th year. Further, or a U.S. work created prior to 1989, ailure to include proper

copyright notice in the published edition ordinarily placed the work in the public

domain. It is oten very dicult to determine i a work is in the public domain. In some

cases an extensive copyright search may be necessary.

Under currentU.S. law, a workcreated on or aterJanuary 1, 1978is ordinarilyprotected bycopyright romthe moment o

its creation until70 years ater theauthors death.


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About Copyright

Digital Content and CopyrightDigital or electronic content, such as e-books, photographs on websites, electronic

databases and other content ound on the Internet, is subject to the same protections

under the U.S. copyright law as non-digital, traditional, or analog works.

People requently assume that online content, including content ound on websites, is not

subject to copyright law and may be reely used and modied without permission. Others

think that online content is not protected unless it carries a copyright notice. Neither

assumption is true. Copyright law protects almost all content on the Web or in any other

digital or electronic orm. Thereore, to use a work in any instance that is not exempted

under air use or another exemption, permission is most likely required.

Because new technologies have created situations that were not specically addressed inthe 1976 Copyright Act, there has been regular pressure to develop new provisions to in

order to modernize copyright law.

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[email protected]

www.copyright.com CRP0913

About Copyright Clearance Center

Representing copyright holders rom

around the world, Copyright Clearance

Center (CCC) is a global rights broker

or the worlds most sought ater

content, including in- and out-o-print

books, e-books, journals, blogs,

newspapers, magazines and images.

Started in 1978, CCC provides

smart solutions that simpliy the

access and licensing o content or

businesses, academic institutions and

government agencies to use and sharecopyright-protected materials while

compensating authors, publishers

and other creators or the use o their

works. CCC serves organizations o all

types and sizes, and licenses millions o

content users in over 180 countries.

2013 Copyright Clearance Center, Inc.

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What Journalists Need to Know About Copyright