Copyright Basics
Introduction:
The University adheres to US copyright law (Title 17 of the US Code). Virtually all intellectual creations can be protected by some form of intellectual property law. Intellectual property is typically divided into three areas: copyrights, trademarks, and patents.
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Copyright law protects expression in original works of authorship.
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Trademark law protects names.
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Patents protect ideas and inventions.
Most copyright questions that arise at a University relate to issues of copyright ownership in new works or fair use of existing works. These materials offer basic information and resources regarding copyright laws that may impact members of the University community.
What is copyright?
The Copyright Act, 17 U.S.C. §101, et seq., provides protection to creators of original works of authorship including literary, dramatic, musical, artistic, architectural, and certain other intellectual works. Copyright protection is available for both published and unpublished works. Copyright protects the form of expression not ideas or facts.
What materials cannot be copyrighted?
Generally, the following types of materials are not eligible for copyright protection:
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Works that have not been fixed in a tangible form of expression;
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Works in the public domain;
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Materials that may be protected by trademark such as (titles, names, short phrases, and slogans; symbols or designs; typographic ornamentation, lettering, or coloring; listings of ingredients or contents). Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration; and
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Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
What are the rights of copyright owners?
A copyright owner secures copyright to his or her work when the work is created in a fixed form in a tangible form of media. As a general rule, the copyright owner is the initial owner of the copyright in the work. However, if a work is created as a “work made for hire”, i.e. a work created within the scope of employment, an employer may own the work. In addition, a copyright can be sold or transferred via agreement so the original author may not necessarily be the current copyright owner. Ownership of copyrights and other forms of intellectual property created by faculty, staff or students at Illinois State
University institutions is governed by University Policy 4.1.10 Intellectual Property .
Copyright law gives a copyright owner limited exclusive rights to:
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Reproduce a work
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Prepare derivative works based on the original
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Distribute copies
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Perform the work
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Display the work
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Perform the work publicly by means of a digital audio transmission, in the case of sound recordings.
Do I need a copyright notice?
No, works are protected under copyright law as soon as the work is fixed in a tangible form. Copyright notices are not required for works created after 1978. It may be beneficial to an author to include a copyright notice on works to reinforce the protected nature of works and inform individuals who to contact for permission to reproduce a work.
The standard copyright notice consists of 4 elements:
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A copyright symbol.
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The year the work was first published.
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The name of the copyright owner.
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The phrase “All Rights Reserved” is required to obtain copyright protection in some countries.
Before affixing a copyright notice, please consult University Policy 4.1.10 Intellectual Property regarding ownership rights. Ownership of copyrights and other forms of intellectual property created by faculty, staff or students at Illinois State University institutions is governed by the policy.
Potential Penalties for Copyright Infringement
The Copyright Act includes a range of penalties for copyright infringement. Copyright infringement is the act of violating any of a copyright owner’s exclusive rights to their work. Penalties for copyright infringement can range from:
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Payment of actual damages and lost profits;
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Statutory infringement penalties ranging from $200 to $150,000 for each work infringed.
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Payment of attorney’s fees and costs;
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Injunction to stop the infringement;
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Impoundment of the illegal works;
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Potential criminal penalties, including jail time.
Basic Copyright Exceptions
There are a few Copyright Exceptions important for educators including: the public domain exception, the fair use exception, and the face-to-face teaching exception.
Public Domain Exception
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Works belonging to the public domain are not protected by copyright. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but the work can never be owned. Materials can enter the public domain if: a copyright has expired, a copyright owner dedicates a work to the public domain, or if copyright law does not protect the work.
Some works in the public domain include:
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Works whose copyright protection has expired, including any work published 90 years on or before December 31 of the current year.
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Works created by the federal government or its agencies, with the exception of seals, insignias, and currency.
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Works created by the state of Illinois and Illinois state agencies, with the exception of seals and insignias.
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Works that are ineligible for copyright protection (e.g. works in the public domain).
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Works whose creators have specifically refused copyright protection and granted these works to the public domain.
Additional works may also fall in the public domain. Please be aware that finding information on the internet does not guarantee the work is in the public domain. If you have a question whether something from the internet falls in the public domain, please consult with the Copyright Officer for assistance.
Fair Use Exception
Section 107 of the Copyright Act permits the Fair Use of a copyrighted work without the copyright owner’s permission. Fair Use permits the reasonable and limited use of copyrighted work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research. Fair Use does not automatically protect educational uses of copyrighted materials. Instead, the Copyright Act requires an individual to consider four Fair Use Factors each time he or she wants to use a copyrighted work. The
Fair Use Exception may apply if the individual balances the Fair Use Factors and finds they support the proposed use of the work.
Additional information regarding the Fair Use Exception is detailed in the Fair Use Guidelines.
Face-To-Face Classroom Exception
The face-to-face exception permits a non-profit educational institution to use small portions of books, short video and song clips, slides/images of paintings, etc., in a classroom or a similar place used solely for instruction during face-to-face teaching activities. Specifically, Section 110(1) of the Copyright Act authorizes instructors or students to perform or display copyrighted works in face-to-face teaching activities in a classroom or other place of instruction provided that:
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Performances and displays of audiovisual works are made from legitimate copies;
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Performances and displays are part of a course of instruction and not for entertainment, recreation or cultural value of the audience;
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Performances and displays must be given by the instructors or students;
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Performances must be given in a classroom or other place of instruction (e.g. residence hall lounge would not qualify);
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Performances must be part of the teaching activities of the institution; and
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Attendance must be limited to the instructors, students and guest lecturers.
This exception applies only to performed or displayed materials not materials that are copied or distributed to students like course readings. Materials used under this exception cannot be transmitted
electronically or broadcast to other locations at other times.
Section 110(2) of the Copyright Act or the “TEACH Act”
The TEACH Act allows instructors and students to use some copyrighted works in distance education or other online courses when face-to-face teaching is not possible.
Under the TEACH Act, the following types of works can be performed or displayed in an online-course:
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Performances of non-dramatic literary or musical works. (A non-dramatic literary work might include a poetry or short story reading. Audiovisual works however (e.g. a movie or television show) would not fall in this category. A non-dramatic musical work might include a symphony or recording, but would not include “dramatic” musical works e.g. opera, musicals, or music videos.)
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Reasonable and limited portions of other works including: films and videos.
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Works comparable to those available under the face-to-face teaching exception. (Distribution of entire textbooks, course-packs or supplemental readings would not be authorized under the
TEACH Act.)
The TEACH Act does not authorize use of the following:
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Works specifically created for use as distance learning products.
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Works that you know or have reason to believe are not lawfully made.
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Conversion of print or other analog versions of works into digital formats unless no digital version of the work is available for purchase.
In order to qualify for the TEACH Act Exception, these courses must meet certain technical requirements.
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The material must be provided at the direction or under the supervision of an instructor and must be an integral part of the course curriculum (i.e., not merely entertainment or unrelated background material).
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The instructor must provide notice to students that materials distributed in the course may be subject to copyright protection.
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The transmission of material is limited to students enrolled in the course (through passwordrestricted access or other similar measures);
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The material is available to students for a limited duration no longer than the "class session" i.e., the period during which a student is logged on to the server.
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Students are not permitted to further disseminate it.
How to Seek Permission
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To seek permission, you must first identify the copyright holder or their agent. For print publications, generally the publisher is the copyright owner. Many publishers have online copyright permission pages on their websites, and you can request permission by completing a webform or sending an e-mail to the publisher’s permissions department. If the publisher is not the copyright owner, they can probably direct you to the copyright owner. For some works, permission may be required from more than one source. This is especially true in the case of artwork or media.
Most publishers can be determined by checking for the copyright statement on print publications or on discs or liner notes for audio-visual materials. However, copyrights are often sold or transferred to other people and organizations, so the printed copyright statement may no longer be current.
The Copyright Officer can assist you to identify the copyright holder and can provide templates for permissions letters.
When Permission is Granted
Congratulations! We recommend that you retain copies of your permission for at least 3 years in the event the copyright owner later seeks to challenge the use of the work.
If a Request is Denied or if the Copyright Owner Does not Respond
If the copyright owner refuses your request or simply does not respond, you may not use their work, unless your proposed use qualifies as Fair Use. If your request is denied you could:
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Consider modifying your use of the work, such as using a smaller portion of the work, so your use favors fair use; or
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Substitute another work for which you can obtain permission.
Creative Commons:
Many copyright owners want to make their works available for others to use without having to seek permission. These copyright owners attach a Creative Commons license to their works, which explicitly informs people how the works may be used without securing permissions. Although the terms of the licenses vary, works are generally shareable and useable so long as proper attribution is given to the copyright owners. Works with a Creative Commons license can be searched for at http://search.creativecommons.org/
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