The Constitutional Basis of Copyright Protection

The Copyright Act, the federal statute establishing the terms of copyright protection, has its basis in the United States Constitution, which confers upon Congress the power "to promote the Progress of Science and useful Arts, by securing for limited times to Authors . . . the exclusive Right to their . . . writings" (Art. I, Sect. 8).  The Act is designed to fulfill this Constitutional purpose by securing intellectual property rights in works of authorship as a means of incenting their creation and dissemination.  Of course, the prospect of economic gain is often immaterial to the creation of art and scholarship in an academic community, but it is important to note that copyrights in such works often belong to publishers, including academic presses, that need the protection of the law in order to recover their investment in the publication, marketing and distribution of such works.  Equally important to the fulfillment of the Act's Constitutional purpose (and critical to the academic mission of this University) are its express exemptions, such as the "fair use" exemption, that allow certain uses of copyrighted works without the permission of the copyright holder.  As a general matter, these exemptions are designed "to promote the Progress of Science and useful Arts" by permitting certain uses of copyrighted works under conditions that are not likely to undermine the copyright holder's economic incentives to create and disseminate such works.  It is important to remember, however, that non-commercial or educational uses of copyrighted works are not always "fair" uses under the Act.

The Scope and Nature of Copyright Protection

The Copyright Act protects all types of expression or authorship fixed in any tangible medium, including written works, paintings, sculptures, photographs, videos, recorded music, sheet music, computer programs, video games, architectural design, and choreography.  It is important to note, however, that the Act does not protect the underlying facts or ideas in a copyrighted work -- only the "expression" of those facts or ideas.  For example, while the Act protects Tom and Jerry, it does not preclude others from portraying comic struggles between hapless cats and cheeky mice.  Nor does the Act protect factual information that may be presented in a work, even if the information or data was previously unknown and required great effort to discover or collect.

Copyrights vest in an author upon the creation of a work, regardless of whether the work has been published, registered with the U.S. Copyright Office, or marked with a copyright notice.  The term of copyright protection, which Congress extended in 2000, generally lasts for the life of the author plus 70 years or, in the case of works-for-hire and corporate works, for 135 years.  To determine the applicable term of protection for a given work, see Gassaway's "When Works Pass into the Public Domain."

During the applicable term of protection, the author of the work possesses certain exclusive rights (which may be assigned to another party such as the publisher or distributor).  These exclusive rights include: (1) the right to copy the work; (2) the right to create derivative works; (3) the right to distribute the work; and (4) the right to display, perform or broadcast the work.  Therefore, before exercising any of these rights with respect to a given work, you must obtain permission from the copyright holder unless a statutory exception such as "fair use" applies or the work is in the public domain.

Statutory Exemptions 

To promote the creation and dissemination of works, the Copyright Act not only secures to authors certain exclusive rights but also creates a number of limited exemptions that are designed to accommodate certain educational, artistic and scholarly uses of those works:

• The "Fair Use" Exemption
• The Face-to-Face and Distance Education Exemptions
• Library Exemptions

The Public Domain and Other "Free" Works

Copyright protection does not extend to works in the public domain, which include: (1) works for which the applicable term of protection has expired; (2) works published by the federal government (e.g., published by the Centers for Disease Control or the National Oceanic and Atmospheric Association); (3) works that lack sufficient originality or expression to qualify for copyright protection (e.g., unadorned calendars, indices, phonebooks, databases); and (4) works expressly donated to the public domain.  Such works may be copied and used without the permission of the author or publisher.

A work that is subject to a GPL or a Copyright Commons agreement may also be used at no charge provided that you agree to distribute the work and any derivative works that you create under identical terms and conditions, thereby ensuring that these works remain available for use by others at no charge.  For further information, go to CreativeCommons.org.