II: Tricky Issues, Public Domain and Fair Use
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1. What are they? What does is all mean exactly?
FAIR USE
Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of [sections 106] and [106A], 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 —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
2. How do you determine if a work is in the public domain?
PUBLIC DOMAIN
The Public Domain is the status of a creative work that is not protected by copyright and which may be freely used by everyone. There are three ways in which a work enters the Public Domain. (1) the term of copyright for the work has expired (2) the author failed to satisfy statutory formalities to perfect the copyright (3) the work is a work of the U.S. Government.
The list below shows a works term of Protection and when it enter the Public Domain.
DATE OF WORK: Created 1-1-78 or after
PROTECTED FROM: When work is fixed in tangible medium of expression
TERM: Life + 70 years1(or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
DATE OF WORK: Published before 1923
PROTECTED FROM: In public domain
TERM: None
DATE OF WORK:Published from 1923 - 63
PROTECTED FROM: When published with notice3
TERM:28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
DATE OF WORK: Published from 1964 - 77
PROTECTED FROM: When published with notice
TERM:28 years for first term; now automatic extension of 67 years for second term
DATE OF WORK: Created before 1-1-78 but not published
PROTECTED FROM: 1-1-78, the effective date of the 1976 Act which eliminated common law copyright
TERM: Life + 70 years or 12-31-2002, whichever is greater
DATE OF WORK: Created before 1-1-78 but published between then and 12-31-2002
PROTECTED FROM: 1-1-78, the effective date of the 1976 Act which eliminated common law copyright
TERM:Life + 70 years or 12-31-2047 whichever is greater
Notes
1 Term of joint works is measured by life of the longest-lived author.
2 Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).
3 Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405.(Notes courtesy of Professor Tom Field, Franklin Pierce Law Center and Lolly Gasaway)
As you can see from the list, in order to determine a creative works copyright status, the first and most important piece of information is the date of the work. The reason the date is so important, is that it defines which Copyright Act is used to calculate a works term of protection. For example, a work made on December 15, 2005 has a different term of protection from a work made on March 18, 1925.
Works created 1-01-78 or after
Copyright protection begins the moment a work is “fixed in a tangible medium of expression.” A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
Works Published before 1923
These works no longer have terms of protection and their status is the Public Domain.
Works Published 1923 - 1977
Unlike the automatic term of protection offered to works created on 1-01-78 and after. Works created in this time period did not receive automatic protection. This is a very different distinction from current Copyright Law. Under the Copyright Act of 1909, Copyright protection had to be secured. In order to Secure Copyright Protection, a person had to first register the work with the US Copyright Office and place notice on the work. If a person failed to do either, the work automatically entered the Public Domain.
Notice as defined in the Copyright Act 1909
The notice of copyright required by section nine of this Act consist either of the word "Copyright" or the abbreviation "Copr.", accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus:©,accompanied by the initials, monogram, mark, or symbol of the copyright proprietor.
Another important difference with the current Copyright Law and the Copyright Act of 1909 is the notion of Publication. Under current law, a works term begins the moment it is “fixed” in a tangible medium of expression. While under the Copyright Act of 1909, a works term of protection started when it was published.
Publication as defined in the Copyright Act of 1909
That in the interpretation and construction of this Act" the date of publication" shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.
Calculating when a Works Term of Protection Expires and enters the Public Domain.
Once you are able to determine the date of the work and its publication date (if needed), determining works term of protection is very easy. You simply add the years of protection to date of the work and you get the year the works term of protections ends.
Credits: List and notes courtesy of Lolly Gasaway, University of North Carolina at Chapel Hill [1] US Copyright Act of 1909[2] Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92 [3]
3. Orphan works, what do you do if you can’t find a copyright holder?
Orphan Works
The phrase “Orphan Work” refers to a copyrighted work whose owners may be impossible to identify and locate.
Use of Orphan works is not clear cut. While some sections in the Copyright Act of 1976 provide limited uses for all copyrighted works. There is no language in the Copyright Act of 1976 that exclusively deals with Orphan Works and their use.
In order to deal with the problems raised by Orphan Works, Senator Orrin Hatch and Senator Patrick Leahy submitted a request to the Registrar of Copyrights to study the issue of Orphan Works in January 2005. In response to their request, the U.S. Copyright Office studied all relevant issues related to the Orphan Works and submitted a final report on their findings to the Senate Judiciary Committee on January 31, 2006. The Report is also available for download from the U.S. Copyright Office, the [Full Report with Appendices], and the [Main Text] (no appendices). For more information about Orphan Works, please visit the U.S. Copyright Office [4].
Update on Orphan Works.
On May 22, Rep. Lamar Smith (R-TX), chair of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property, introduced H.R. 5439, the “Orphan Works Act of 2006.” The bill was marked up by the subcommittee on May 24 and referred to the House Judiciary Committee.
To Read the House of Representatives bill H. R. 5889 please click on the link below. [5]
To Read the Senate Bill S.2913 Shawn Bentley Orphan Works Act of 2008 (Introduced in Senate) please click on this link.Image:S2913(IS).pdf
To Read the Senate Bill S.2913 Shawn Bentley Orphan Works Act of 2008 (Reported in Senate) please click on this link. Image:S2913(RS).pdf
CREATIVE COMMONS REPORT - NONCOMMERCIAL USE STUDY INTERIM REPORT: U.S. CONTENT CREATORS ONLINE [6]
