Copyright

It used to be that in order to be afforded any copyright protection, one needed to put the world on notice by attaching a copyright notice to the work. While this is no longer the case, it is still customary to attach a copyright notice on copyrighted works in order to be eligible for certain types of damages. In the copyright notice below, notice the four elements that include the copyright symbol, the term "Copyright", the year of copyright, the name of the copyright holder, and the phrase "All Rights Reserved".

Copyright © 2004 Your Name
All Rights Reserved

Copyright Term

The term "Copyright" is technically not required in the copyright notice. However, it should be noted that the term "Copyright" may now be used in lieu of the © Copyright Symbol in the U.S.

Copyright Symbol

The © Copyright Symbol is generally the standard identifier of a Copyright Notice. This symbol is required in many foreign countries in order for copyright protection to attach. However, in the United States, the term "Copyright" may now be used in lieu of the Copyright Symbol.

Year of Publication

Whenever a Copyright Notice is given, it is required that the year of publication be included in the notice.

Name of Copyright Holder

The Copyright Notice must also include the name of the owner of the copyright. The legal owner of the copyright is not necessarily the author or creator of the work. Works created by employees in the course of their employment or independent workers who sign "Work for Hire" agreements are considered to be creating the work on behalf of the employer. Consequently, these works are referred to as "Works for Hire", and the copyright is vested in the person doing the hiring.

Fair Use Provision of the Copyright Act

…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 -

• the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• 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.

Factor 1 - Purpose and Character of Use

This first factor looks at the new work takes into account the following three sub-factors.

• Commercial nature or non-profit educational purposes. This simply looks at the new work and determines whether it was created primarily as a for profit venture or was created for a non-profit educational purpose. This test indicates that preference will be granted to works that were created for non-profit educational purposes
• Preamble Purposes. The second sub-factor looks to see if the new work is for one of the purposes that are mentioned in the preamble of the fair use provision. It should be noted that this list is not restrictive. However, the burden of showing fair use is somewhat easier if the work is for one of these purposes. Examples include:
  • Criticism
  • Comment
  • News reporting
  • Teaching
  • Scholarship
  • Research
• Degree of Transformation. The third sub-factor looks at the degree of transformation accomplished by the new work. In other words, this sub-factor seeks to determine whether the new work merely supplants the original, or whether it adds something new, with a further purpose or different character, thereby altering the first with new expression, meaning or message.

Factor 2 - Nature of Copyrighted Work

This second factor acknowledges that fact that some works are simply more deserving of copyright protection than others. Consequently, this portion of the test looks at the original work and attempts to determine where that work is in the spectrum of worthiness of copyright protection.

Factor 3 - Relative Amount

The third factor looks at the amount and substantiality of the copying in relation to the work as a whole. However, the critical determination is whether the quality and value of the materials used are reasonable in relation to the purpose of copying. This is not a pure ratio test in that using a whole work may be fair use in some circumstances, whereas using a tiny fraction of a work may not qualify for fair use in other circumstances.

Therefore, the quantity, as well as the quality and importance, of the copied material must be considered. Some Justices have looked to see that "no more was taken than was necessary" to achieve the purpose for which the materials were copied.

Factor 4 - Effect upon Potential Market

The fourth factor considers the extent of harm to the market or potential market of the original work caused by the infringement. This takes into account harm to the original, as well as harm to derivative works

Public Domain

Copyrighted works on the Net include news stories, software, novels, screenplays, graphics, pictures, and even email. In fact, the frightening reality is that the vast majority of the items on the Net are protected by copyright law.

However, there are a lot of works on the Net that are in the public domain. The Public Domain is that repository of all works that for whatever reason are not protected by copyright. As such, they are free for all to use without permission. Works in the Public Domain include works with the following characteristics:

Originally Non-copyrightable

These are items that by their very nature are not eligible for copyright protection. These items include:

• Ideas
• Facts
• Titles
• Names
• Short phrases
• Blank forms

Lost Copyright

The public domain contains all works which previously had copyright protection, but which subsequently lost that protection due to pilot error. While it is all but impossible to lose copyright protection under today's laws, previous statutory schemes have not been so generous. For example, all works published before January 1, 1978 that did not contain a valid copyright notice may be considered to be in the public domain.

Owners of works published between 1978 and March 1, 1989 that did not contain a valid copyright notice were given a five-year grace period in which to correct the problem of publication without notice before their work was unceremoniously tossed into the public domain.

Expired Copyright

The public domain contains all works for which the statutory copyright period has expired. Additionally, you are free to copy any work published before 1964 in which the copyright owner failed to renew his copyright.

Government Documents

Federal documents and publications are not copyrighted, and therefore are considered to be in the Public Domain. Consequently, if you obtain a government document from the net, such as a law, statute, agency circular, federal report, or any other document published or generated by the government, you are free to copy or distribute the document.

Works Granted to the Public Domain

Copyrightable works may also enter the public domain if the copyright owner grants the work to the public domain.

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