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                        GENERAL ARTICLES
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                      What is a Copyright?
                   Shannon Talley (1:275/311)

Originally published by Fidonews Editor, Henk Wolsink, in Volume 15,
Number 39, 28 September 1998

A copyright gives the owner of a creative work the right to keep
others from using the work without the owner's permission. The key
to understanding copyright law is to understand the difference
between an idea and the expression of the idea. Copyright applies
only to a particular expression, not to the ideas or facts underlying
the expression. For instance, copyright may protect a particular
song, novel or computer game about a romance in space, but it cannot
protect the underlying idea of having a love affair among the stars.

More specifically, a creative work (often referred to as a "work of
authorship") must meet all of these three criteria to be protected by
copyright:
It must be original. In other words, the author must have created
rather than copied it.
It must be fixed in a tangible (concrete) medium of expression. For
example, it might be expressed on paper, audio or video tape, computer
disk, clay or canvas.
It must have at least some creativity--that is, it must be produced by
an exercise of human intellect. There is no hard and fast rule as to
how much creativity is enough. To give an example, it must go beyond
the creativity found in the telephone white pages, which involve a
non-discretionary alphabetic listing of telephone numbers rather than
a creative selection of listings.

How long does a copyright last?

For works published after 1977, the copyright lasts for the life of
the author plus 50 years. However, if the work is a work for hire
(that is, the work is done in the course of employment or has been
specifically commissioned) or is published anonymously or under a
pseudonym, the copyright lasts between 75 and 100 years, depending
on the date the work is published.

If the work was published before 1978 and the copyright has been
properly renewed, the copyright expires 75 years after date of
publication. If the work was created, but not published, before
1978, the copyright lasts for the life of the author plus 50 years.
However, even if the author died over 50 years ago, the copyright in
an unpublished work lasts until December 31, 2002. And if such a
work is published before 2003, the copyright lasts until December 31,
2027.

International Copyright Protection.

Copyright protection rules are fairly similar worldwide, due to
several international copyright treaties, the most important of
which is the Berne Convention. Under this treaty, all member countries
--and there are more than 100, including virtually all industrialized
nations--must afford copyright protection to authors who are nationals
of any member country. This protection must last for at least the life
of the author plus 50 years, and must be automatic without the need
for the author to take any legal steps to preserve the copyright.

In addition to the Berne Convention, the GATT (General Agreement on
Tariffs and Trade) treaty contains a number of provisions that affect
copyright protection in signatory countries. Together, the Berne
Copyright Convention and the GATT treaty allow U.S. authors to enforce
their copyrights in most industrialized nations, and allow the
nationals of those nations to enforce their copyrights in the U.S.

With one important exception, you should assume that every work is
protected by copyright unless you can establish that it is not. As
mentioned above, you can't rely on the presence or absence of a
copyright notice ((c)) to make this determination, because a notice
is not required for works published after March 1, 1989. And even for
works published before 1989, the absence of a copyright notice may
not affect the validity of the copyright.

The exception is for materials put to work under the "fair use rule."
This rule recognizes that society can often benefit from the
unauthorized use of copyrighted materials when the purpose of the
use serves the ends of scholarship, education or an informed public.
For example, scholars must be free to quote from their research
resources in order to comment on the material.

Copyright (c)1995, The Trustees of California State University.

When Copying Is OK: The 'Fair Use' Rule
by Stephen Fishman Copyright (c) Nolo Press

Sooner or later, almost all writers quote or closely paraphrase what
others have written. For example:
Andy, putting together a newsletter on his home computer, reprints an
editorial he likes from a daily newspaper.
Phil, a biographer and historian, quotes from several unpublished
letters and diaries written by his subject.

Regina, a freelance writer, closely paraphrases two paragraphs from
the Encyclopedia Britannica in an article she's writing.
Sylvia, a poet, quotes a line from a poem by T.S. Eliot in one of her
own poems.
Donnie, a comedian, writes a parody of the famous song "Blue Moon" he
performs in his comedy act.

Assuming the material quoted in these examples is protected by
copyright, do Phil, Regina, Sylvia, Andy and Donnie need permission
from the author or other copyright owner to use it? It may surprise
you to learn that the answer is "not necessarily."

Under the "fair use" rule of copyright law, an author may make
limited use of another author's work without asking permission. The
fair use privilege is perhaps the most significant limitation on a
copyright owner's exclusive rights. If you write or publish, you
need a basic understanding of what is and is not fair use.

Uses That Are Generally Fair Uses.

Subject to some general limitations discussed later in this article,
the following types of uses are usually deemed fair uses:
Criticism and comment--for example, quoting or excerpting a work in
a review or criticism for purposes of illustration or comment.

News reporting--for example, summarizing an address or article, with
brief quotations, in a news report.
Research and scholarship--for example, quoting a short passage in a
scholarly, scientific or technical work for illustration or clarifi-
cation of the author's observations.
Nonprofit educational uses--for example, photocopying of limited
portions of written works by teachers for classroom use.
Parody--that is, a work that ridicules another, usually well-known,
work by imitating it in a comic way.

In most other situations, copying is not legally a fair use. Without
an author's permission, such a use violates the author's copyright.

Violations often occur when the use is motivated primarily by a
desire for commercial gain. The fact that a work is published
primarily for private commercial gain weighs against a finding of
fair use. For example, using the Bob Dylan line "You don't need a
weatherman to know which way the wind blows" in a poem published in
a small literary journal would probably be a fair use; using the same
line in an advertisement for raincoats probably would not be.

A commercial motive doesn't always disqualify someone from claiming a
fair use. A use that benefits the public can qualify as a fair use,
even if it makes money for the user.

For example, a vacuum cleaner manufacturer was permitted in its
advertising to quote from a Consumer Reports article comparing vacuum
cleaners. Why? The ad significantly increased the number of people
exposed to the Consumers Union's evaluations and thereby disseminated
helpful consumer information. The same rationale probably applies to
the widespread practice of quoting from favorable reviews in
advertisements for books, films and plays.

Copying From Unpublished Materials.

When it comes to fair use, unpublished works are inherently different
from published works. Publishing an author's unpublished work before
he or she has authorized it infringes upon the author's right to
decide when and whether the work will be made public. Some courts
have held that fair use never applies to unpublished material.

As you might expect, publishers, authors' groups, biographers and
historians were highly critical of this view. They got Congress to
amend the fair use provision in the Copyright Act to make clear that
the fact that a work is unpublished weighs against fair use, but is
not determinative in and of itself. If the other fair use factors
favor fair use, it can be permissible to use part of an unpublished
work without permission. This is particularly likely where the use
benefits the public by furthering the fundamental purpose of the
copyright laws--the advancement of human knowledge. For example, a
court held that it was a fair use for a biographer to use a modest
amount of material from unpublished letters and journals by the
author Richard Wright. (Wright v. Warner Books, Inc., 953 F.2d 731
(2d Cir. 1991).)

When Is a Use a 'Fair Use'?

There are five basic rules to keep in mind when deciding whether or
not a particular use of an author's work is a fair use:

Rule 1: Are You Just Copying or Creating Something New?
The purpose and character of your intended use of the material
involved is the single most important factor in determining whether
a use is a fair use.
The question to ask here is whether you are merely copying someone
else's work verbatim or instead using it to help create something
new. The Supreme Court calls such a new work "transformative." The
more transformative your work, the more likely your use is a fair
use.

Rule 2: Don't Compete With the Source You're Copying From.
Without consent, you ordinarily cannot use another person's protected
expression in a way that impairs (or even potentially impairs) the
market for his or her work. Thus, if you want to use an author's
protected expression in a work of your own that is similar to the
prior work and aimed at the same market, your intended use isn't
likely a fair use.

For example, say Nick, a golf pro, writes a book on how to play golf.
Not a good putter himself, he copies several brilliant paragraphs on
putting from a book by Lee Trevino, one of the greatest putters in
golf history. Because Nick intends his book to compete with and
hopefully supplant Trevino's, this use could not be a fair use. In
effect, Nick is trying to use Trevino's protected expression to eat
into the sales of Trevino's own book.

An interesting example is when a teacher copies parts of books for
students to use. In one recent case, a group of seven major publishers
went to court and stopped a duplicating business from copying excerpts
from books without permission, compiling them into "course packets"
and selling them to college students.

Rule 3: Giving the Author Credit Doesn't Let You Off the Hook.
Some people mistakenly believe that they can use any material as long
as they properly give the author credit. Not true. Giving credit and
fair use are completely separate concepts. Either you have the right
to use another author's material under the fair use rule or you
don't. The fact that you attribute the material to the other author
doesn't change that.

Rule 4: The More You Take, the Less Fair Your Use Is Likely to Be.
The more material you take, the less likely it is that your use will
be a fair use. However, to preserve the free flow of information,
authors have more leeway in using material from factual works
(scholarly, technical, scientific works, etc.) than to works of fancy
such as novels, poems and plays. This is true especially where it's
necessary to use extensive quotations to ensure the accuracy of the
information conveyed.

As a general rule, never quote more than a few successive paragraphs
from a book or article, or take more than one chart or diagram. It
is never proper to include an illustration or other artwork in a book
or newsletter without the artist's permission. Don't quote more than
one or two lines from a poem.

Many publishers require their authors to obtain permission from an
author to quote more then a specified number of words, ranging from
about 100 to 1000 words.

Contrary to what many people believe, there is no absolute word limit
on fair use. For example, it is not always okay to take one paragraph
or less than 200 words. Copying 12 words from a 14-word haiku poem
wouldn't be fair use. Nor would copying 200 words from a work of 300
words likely qualify as a fair use. However, copying 2000 words from
a work of 500,000 words might be fair.

It all depends on the circumstances.

Rule 5: The Quality of the Material Used Is as Important as the
Quantity.
The more important the material is to the original work, the less
likely your use of it will be considered a fair use.

In one famous case, The Nation magazine obtained a copy of Gerald
Ford's memoirs before their publication. In the magazine's article
about the memoirs, only 300 words from Ford's 200,000-word manuscript
were quoted verbatim. The Supreme Court ruled that this was not a
fair use because the material quoted (dealing with the Nixon pardon)
was the "heart of the book ...the most interesting and moving parts
of the entire manuscript," and that pre-publication disclosure of
this material would cut into value or sales of the book.

Determining whether your intended use of another author's protected
work constitutes a fair use is usually not difficult. It's really
just a matter of common sense. There is no more commonsensical
definition of fair use than the golden rule: Take from someone else
only what you wouldn't mind someone taking from you.

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