18th-19th Centuries | 20th-21st Centuries | Bibliography and Resources
The history of American copyright law originated with the introduction of the printing press to England in the late fifteenth century. As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England. The Licensing Act of 1662 confirmed that monopoly and established a register of licensed books to be administered by the Stationers' Company, a group of printers with the authority to censor publications. The 1662 act lapsed in 1695 leading to a relaxation of government censorship, and in 1710 Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers. The 1710 act established the principles of authors' ownership of copyright and a fixed term of protection of copyrighted works (fourteen years, and renewable for fourteen more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a "public domain" for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use. While the statute did provide for an author's copyright, the benefit was minimal because in order to be paid for a work an author had to assign it to a bookseller or publisher.
Since the Statute of Anne almost three hundred years ago, U.S. law has been revised to broaden the scope of copyright, to change the term of copyright protection, and to address new technologies. For several years, the U.S. has considered and acted on copyright reform. The Canadian government is considering copyright reform as well.
1787: U.S. Constitution
According to Article I, Section 8, Clause 8 of the U.S. Constitution, "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
1790: Copyright Act of 1790
The First Congress implemented the copyright provision of the U.S. Constitution in 1790. The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modeled on the Statute of Anne (1710). It granted American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew for another fourteen. The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of "science and the useful arts" through wide public access to works in the "public domain." Major revisions to the act were implemented in 1831, 1870, 1909, and 1976.
1831: Revision of the Copyright Act
The term of protection of copyrighted works was extended to twenty-eight years with the possibility of a fourteen-year extension. Congress claimed that it extended the term in order to give American authors the same protection as those in Europe. The extension applied both to future works and those current works whose copyright had not expired.
1834: Wheaton v. Peters
The case arose from a dispute between the official reporter of U.S. Supreme Court decisions, Richard Peters, and the previous reporter, Henry Wheaton. Peters began publishing "Condensed Reports" of cases decided during Wheaton's tenure and Wheaton sued. The case went before the U.S. Supreme Court. Peters argued that Wheaton had failed to properly obtain copyright, while Wheaton argued that authors were entitled to perpetual property rights in their works. Justice McLean delivered the majority decision, stating that "since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world." The decision struck a decisive blow against the notion of copyright as a perpetual natural right, and the utilitarian view of copyright embodied in the U.S. Constitution prevailed, i.e., "that patents and copyrights are exclusive rights of limited duration, granted in order to serve the public interest in promoting the creation and dissemination of new works." See the amicus brief submitted to the U.S. Supreme Court by Tyler Ochoa and Mark Rose in the case of Eldred v. Ashcroft,May 20, 2002.
1841: Folsom v. Marsh
In a case brought before the Massachusetts Circuit Court in 1841, the owner and editor of a multi-volume collection of George Washington's letters sued Charles Upham for using hundreds of pages of the letters, in their entirety, in a volume on the life of Washington. Justice Joseph Story found that Upham had infringed the owner's copyright in publishing some 350 pages of Washington's letters in his 866-page book. Upham argued that Washington's letters were not "proper subjects of copyright" because their publication would not harm the deceased author, and because they were not literary in nature. Story disagreed and held that letter writers and their designated heirs, not the persons to whom the letters are addressed, possess copyright in the letters they have written, no matter the content.
Upham also argued that he had "a right to abridge and select, and use the materials . . . for [his] work, which . . . is an original and new work, and that it constitutes, in no just sense, a piracy of the work of the plaintiffs." Again, Story disagreed, saying that Upham's work was "a selection of the entire contents of particular letters, from the whole collection or mass of letters of the work of the plaintiffs. . . . [and] that these letters are the most instructive, useful and interesting to be found in that large collection." In explaining the nature of the infringement, Story said, "It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another,that is sufficient, in point of law, to constitute a piracy pro tanto" (my emphasis). The court's definition of what constituted a "justifiable use of the original materials" formed the basis of the "fair use" doctrine. Put another way, Story said that, "the question of piracy, often depend[s] upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of the materials."
1853: Stowe v. Thomas
Harriet Beecher Stowe sued F.W. Thomas, publisher of a German-language periodical, Die Freie Presse, in 1853. Thomas translated Uncle Tom's Cabininto German and sold it in the United States without the author's permission. Judge Robert Grier of the Third Circuit Court of Appeals explained in the decision that once an author published her or his work, "and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them." With regard to translations, he continued, "the same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or 'copy' of the same 'book.'" According to Siva Vaidhyanathan, the "antiproperty" rhetoric in the decision encouraged many American authors to take a stand in favor of copyright as property until the copyright law was revised in 1870 (Vaidhyanathan, 48-50).
1870: Revision of Copyright Act
The administration of copyright registrations moved from the individual district courts to the Library of Congress Copyright Office. The term of protection was not extended in this revision.
1886: Berne Convention
The goals of the Berne Conventionprovided the basis for mutual recognition of copyright between sovereign nations and promoted the development of international norms in copyright protection. European nations established a mutually satisfactory uniform copyright law to replace the need for separate registration in every country. The treaty has been revised five times since 1886. Of particular note are the revisions in 1908 and 1928. In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection. In 1928, the Rome Act first recognized the moral rights of authors and artists, giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artists' reputations. The United States became a Berne signatory in 1988.
1891: International Copyright Treaty
Because American copyright law applied only to American publications, European authors were unable to profit from the publication and sale of their works at extemely low prices during the nineteenth century. The so-called "cheap books" movement, spread rapidly by small upstart publishers after the Civil War, threatened the "courtesy principle" of gentlemanly price-fixing adhered to by the large, established publishers such as Henry Holt. By the 1880s cheap books flooded the American market. By 1890 authors, publishers, and printers' unions joined together to support an international copyright bill (Vaidhyanathan, 50-55).
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1909: Revision of the U.S. Copyright Act
A major revision of the U.S. Copyright Act was completed in 1909. The bill broadened the scope of categories protected to include all works of authorship, and extended the term of protection to twenty-eight years with a possible renewal of twenty-eight. The Congress addressed the difficulty of balancing the public interest with proprietor's rights:
"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests" (H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7 ).
1973: Williams and Wilkins Co. v. United States
Williams and Wilkins, publishers of specialized medical journals, sued the National Library of Medicine (NLM) and the National Institutes of Health (NIH)charging that the agencies had infringed copyright by making unauthorized photocopies of articles featured within their publications and distributing them to medical researchers. The U.S. Court of Claims held that medicine, and medical research would be harmed by finding an infringement, and since the Copyright Act was under revision by Congress, it was better to allow the status quo to continue in the interim. In the decision, Judge Davis stated, "the court holds, based on the type and context of use by NIH and NLM as shown by the record, that there has been no infringement, that the challenged use is 'fair' in view of the combination of all of the factors involved in consideration of 'fair' or 'unfair' use enumerated in the opinion, that the record fails to show a significant detriment to plaintiff but demonstrates injury to medical and scientific research if photocopying of this kind is held unlawful, and that there is a need for congressional treatment of the problems of photocopying."
1976: Revision of the U.S. Copyright Act
The 1976 revision was undertaken for two primary reasons. First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement needed to be addressed. Second, the revision was undertaken in anticipation of Berne Conventionadherence by the U.S. It was felt that the statute needed to be amended to bring the U.S. into accord with international copyright law, practices, and policies. The 1976 act preempted all previous copyright law and extended the term of protection to life of the author plus 50 years (works for hire were protected for 75 years). The act covered the following areas: scope and subject matter of works covered, exclusive rights, copyright term, copyright notice and copyright registration, copyright infringement, fair use and defenses and remedies to infringement. With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works. In addition, a new section was added, section 108, that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan under certain circumstances.
In addition to section 108, section 107 is important to libraries because it contains an exception to the exclusive rights of owners to make and distribute copies of their works. It states that "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." To determine whether the use of a work is a fair use, the following four factors are to be considered: purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market. See Title 17of the U.S. Code.
1976: Classroom Guidelines
In addition to legislative reforms, private negotiations between owners and users of copyrighted materials resulted in guidelines for classroom and educational use as well as reserve room use. These guidelines were not part of the statute but were included in the House report accompanying the 1976 act. The 1976 "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals" was adopted by thirty-eight educational organizations and the publishing industry. According to the text of the guidelines, the purpose was "to state the minimum and not the maximum standards of educational fair use under section 107 of the [Copyright Act of 1976]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying may be permissible under revised guidelines."
1976: CONTU Process
The National Commission on New Technological Uses of Copyrighted Works (CONTU) was appointed by Congress in 1976 to establish guidelines for the "minimum standards of educational fair use" under the 1976 act. "The CONTU guidelines were developed to assist librarians and copyright proprietors in understanding the amount of photocopying for use in interlibrary loan arrangements permitted under the copyright law." Guidelineswere established for copying for interlibrary loan.
1983: Encyclopedia Britannica Educational Corp. v. Crooks
Encyclopedia Britannicasued the Board of Cooperative Educational Services, a consortium of public school districts, for systematically taping educational programs that were broadcast on public television stations and making copies available to member schools. The court found that the actions of the school board would have a detrimental effect on the market of the commercially produced programs and that the use was not a fair use.
1986: Maxtone-Graham v. Burtchaell
Maxtone-Graham wrote a book containing women's stories of unwanted pregnancy and abortion in 1973. She denied Burtchaell's request to use excerpts from her published interviews. He published them anyway. The Second Circuit Court of Appeals found that quoting 4.3% of an author's work was not excessive and that Burtchaell's use of the narratives was a fair use.
1987: Salinger v. Random House
After an initial decisionin favor of J.D. Salinger's unauthorized biographer, Ian Hamilton, the Second Circuit Court of Appeals found that quoting or paraphrasing from unpublished materials (Salinger's letters) in an unauthorized biography was not fair use and the book was never published.
1988: Berne Convention
The United States became a Bernesignatory in 1988. The major changes for the U.S. copyright system as a result of Berne were: greater protection for proprietors, new copyright relationships with twenty-four countries, and elimination of the requirement of copyright notice for copyright protection.
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1990: Circulation of Computer Software
Congress amended the Copyright Act to prohibit commercial lending of computer software. The amendment noted that libraries could lend software provided the "copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright." The amendment was a modification of the first sale doctrine.
1991: Basic Books, Inc. v. Kinko's Graphics Corp.
A Federal District Court in New York ruled that Kinko's Graphic Corporation infringed copyrights, and did not exercise fair use, when it photocopied coursepacks that included book chapters, and then sold them to students for classwork. The court found that most of the fair use factors worked against Kinko's in this case, especially given Kinko's profit motive in making the copies. Additionally, the court found that the classroom guidelines did not apply to Kinko's. The court did not rule that coursepacks cannot constitute fair use in other circumstances.
1991: Feist Publications v. Rural Telephone Service Co., Inc.
The U.S. Supreme Court found that the U.S. Constitution requires that, for a work to receive copyright protection, it must reflect creative expression or originality. Thus, the compilation of a telephone directory by Feist was not an infringement even though it was compiled from the information in the Rural Telephone Service White Pages. The information in the white pages was not copyrightable because it comprised "comprehensive collections of facts arranged in conventional formats."
1992: American Geophysical Union v. Texaco
American Geophysical Union v. Texacoresulted from a class action suit brought by six scientific publishers (on behalf of other publishers registered with the Copyright Clearance Center). In July 1992, a U.S. District judge ruled in the seven-year-old copyright case that a Texaco scientist violated the Copyright Law when he copied complete journal articles without providing the appropriate fee to the publishers. Texaco argued that the copying fell within fair use. The court ruled that the profit motive of the company was a relevant consideration in the analysis of the purpose of the use. They also found against Texaco in considering the amount of the work used, and found that the market was affected because Texaco could have paid royalties through the CCC.
In 1994, the Second Circuit Court of Appeals upheld the lower court decision. In April 1995, Texaco petitioned the Supreme Court to review the case. On May 15, 1995, Texaco and a steering committee representing the publishers announced that they had agreed upon terms to settle the case. Texaco, which conceded no wrongdoing in the proposed settlement, paid a seven figure settlement and retroactive licensing fee to the CCC. In addition, Texaco entered into standard annual license agreements with the CCC over the next five years.
1992: Amendment to Section 304 of Title 17
Congress amended Section 304 of Title 17making copyright renewal automatic. The amendment dramatically curtailed the entry into the public domain of works protected by copyright before 1978.
1993: Playboy Enterprises Inc. v. Frena
The Florida Northern District Court held that Frena, an electronic bulletin board operator, had violated Playboy'scopyright when one of their photographs was digitized and placed on the bulletin board system by one subscriber and downloaded by another subscriber. According to the decision, "it does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature."
1993: NII Initiative
The Working Group on Intellectual Property Rights was established to explore the application and effectiveness of copyright law and the National Information Infrastructure. The NII was described as "a seamless web of communications networks, computers, databases, and consumer electronics" (Information Infrastructure Task Force, National Telecommunications and Information Administration, National Information Infrastructure: Agenda for Action,1993).
1994: Campbell v. Acuff-Rose Music Inc.
The Supreme Court ruled that 2 Live Crew's parody of Roy Orbison's song, "Pretty Woman," was a fair use. The court found that a commercial use could be a fair use especially when the markets for an original work and a transformative work are different (Vaidhyanathan, 148-49).
1994: Working Group's Green Paper
The Working Group on Intellectual Property Rights sponsored a series of activities to solicit input on copyright issues and the NII. These included public hearings and, in June 1994, a draft NII report was circulated for comment and review (the Green Paper). Part of the review process included three hearings (held in Los Angeles, Chicago, and Washington, DC) hosted by the Working Group, where members of the stakeholder community presented reactions to the Green Paper.
The Working Group on Intellectual Property Rights sponsored the Conference on Fair Use (CONFU). Established in September 1994, CONFU was the venue for a discussion of issues of fair use in the electronic environment. CONFU participants developed guidelines for fair use of educational multimedia, and proposed guidelines in a number of areas including interlibrary loan, electronic reserves, digital images, and distance education. According to the final report[PDF file], issued in 1998, "it was clear that fair use was alive and well in the digital age, and that attempts to draft widely supported guidelines will be complicated by the often competing interests of the copyright owner and user communities" (p. 18).
1995: Religious Technology Center v. Netcom
A federal judge in the Northern District Court of California ruled that Netcom, an Internet Service Provider (ISP), was liable for contributory infringement (as opposed to direct infringement) of copyright because the company did not remove copyrighted materials posted by a subscriber. Justice Whyte found that "mere possession of a digital copy on a [server] that is accessible to some members of the public" may not constitute direct infringement of the exclusive right to publicly distribute and display. The case was significant for its implications for Internet Service Providers' knowledge of and liability for infringers' activities, as well as their use of the fair use doctrine as an affirmative defense against charges of contributory infringement. In 1998, the DMCA limited the liability of "service providers" for some forms of infringement. For more information on ISP liability, see the Copyright Crash Course, "Is Your Library an Internet Service Provider Under the DMCA?"
1995: Release of the White Paper
The culmination of the NII Working Group's efforts was release of the white paper in September 1995. The white paper contained recommendations to amend the Copyright Act of 1976 and presented a lengthy legal analysis of current copyright law. The white paper's legislative amendments and recommendations were introduced in Congress as the NII Copyright Protection Act of 1995 (S. 1284 and H.R. 2441).
1996: TRIPS Agreement
In December 1994, President Clinton signed the Uruguay Round Agreements Act (URAA) which implemented the General Agreement on Tariffs and Trade (GATT) including Trade-Related Aspects of Intellectual Property (TRIPs). Provisions in the URAA amended U.S. copyright law. On January 1, 1996, copyright for works from eligible countries was restored.
1996: Database Protection Legislation
In May 1996, Rep. Carlos Moorhead (Chair, House Judiciary Subcommittee on Courts and Intellectual Property, R-CA) introduced the Database Investment and Intellectual Property Antipiracy Act of 1996 (H.R. 3531). The legislation was comparable to a European sponsored initiative to protect databases for fifteen years from unauthorized extractions of more than an insubstantial part of the database contents. A variety of bills were introduced until 1999. Discussions on this extremely controversial legislation continued throughout 2002, with congressional staff trying to craft a compromise bill. See the ARL Public Policies information on database legislation site.
1996: Princeton University Press, MacMillan Inc., and St. Martin's Press v. Michigan Document Services, Inc., and James Smith
In November 1996, the Sixth Circuit Court of Appeals decided in an eight to five ruling in favor of publishers who sued Michigan Document Services (MDS). MDS was an off-campus, for-profit photocopy shop whose owner, James Smith, made coursepacks that included substantial portions of copyright protected books and sold them to students. Smith claimed his use of the material was a fair use and in February 1996 the same court had ruled in his favor. However, in April 1996 the judges of the court voted to rehear the case en banc,leading to the November ruling. MDS appealed the case in January 1997; however, the U.S. Supreme Court refused to hear the case.
1996: World Intellectual Property Organization (W.I.P.O.)
Delegates from 160 countries considered two treaties on international intellectual property law during a Diplomatic Conference convened in December 1996 in Geneva, Switzerland. The delegates adopted new versions of the proposed treaties resulting in a new approach to copyright issues. The Conference adopted a statement ensuring the two treaties would "permit application of fair use in the digital environment." The treaty language emphasized "the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information."
1998: Sonny Bono Copyright Term Extension Act
On October 7, 1998, the House and Senate passed S. 505, the Copyright Term Extension Act (CTEA). The law extended protection from life of the author plus fifty years to life of the author plus seventy years. President Clinton signed the measure into law on October 27, 1998 (P.L. 105-298). The law's provisions applied to works under copyright on the date of its implementation. An exception permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last twenty years of protection as if they were in the public domain for non-commercial purposes, under certain limited conditions. See the ARL Public Policies site for updates.
1998: Digital Millenium Copyright Act
President Clinton signed the Digital Millenium Copyright Act (DMCA) into law on October 28, 1998 (P.L. 105-304). The law's five titles implemented the WIPO Internet Treaties; established safe harbors for online service providers; permitted temporary copies of programs during computer maintenance; made miscellaneous amendments to the Copyright Act, including amendments which facilitated Internet broadcasting; and created sui generisprotection for boat hull designs. A controversial title establishing database protection was omitted by a House-Senate Conference.
Among the most controversial provisions of the DMCA is Section 1201. According to Jonathan Band of Morrison & Foerster, LLP, Section 1201 "prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work. This prohibition on unauthorized access takes effect two years after enactment of the DMCA." Over the next two years, the Librarian of Congress conducted a rulemakingproceeding to determine appropriate exceptions to the prohibition. Additional rulemakings will occur every three years.
For more information on the DMCA, see ARL's page on the Digital Millennium Copyright Act of 1998 and the Home Recording Rights Coalition: DMCA Legislative History.
1999: Bender v. West Publishing Co.
The U.S. Supreme Court denied certiorari, or refused to hear, two cases under appeal by West Publishing Company. By rejecting the request, the U.S. Supreme Court let stand two decisions by the Second Circuit Court of Appeals in favor of Matthew Bender & Co. and Hyperlaw, Inc.
The Second Circuit Court of Appeals limited the ability of West Publishing Corporation to copyright legal decisions. In two rulings, Matthew Bender v. West Publishing Co. and Matthew Bender Co. and Hyperlaw Inc. v. West Publishing Co. and West Publishing Corporation,the Court determined that the changes that West Publishing made to judicial opinions were not sufficient to warrant additional legal protection of the decisions. The Court noted that, "all of West's alterations to judicial opinions involve the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and therefore any creativity in these elements of West's case reports lies in West's selection and arrangement of this information. In light of accepted legal conventions and other external constraining factors, West's choices on selection and arrangement can reasonably be viewed as obvious, typical, and lacking even minimal creativity. Therefore, we cannot conclude that the district court clearly erred in finding that those elements that Hyperlaw seeks to copy from West's case reports are not copyrightable, and affirm."
1999: UCITA Passed by NCCUSL
In July 1999, the National Conference of Commissioners on Uniform State Laws (NCCUSL) passed the Uniform Computer Information Transaction Act (UCITA, formerly UCC 2B). UCITA is a proposed state law that seeks to create a unified approach to the licensing of software and information.
1999: Digital Theft Deterrence and Copyright Damages Improvement Act of 1999
Congress approved a significant hike in the minimum statutory damages for various types of copyright infringement in the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 (H.R. 3456). The law increased the minimum statutory damages for infringements from $500 to $750 and increased the maximum from $20,000 to $30,000. The maximum for willful infringement increased from $100,000 to $150,000.
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2000: Virginia Passed UCITA
On March 14, 2000, Governor Jim Gilmore of Virginia signed UCITA into law. Virginia was the first state to approve the legislation. Maryland passed it in April 2000. The highly controversial legislation is under consideration in several state legislatures.
2000: Librarian of Congress Issued Ruling on DMCA
The Anti-Circumvention Provision of the DMCA, Section 1201(a)(1), allows exemptions from the prohibition on circumvention of technological protection measures for "persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be . . . adversely affected." Congress directed the Register of Copyrights to review the section and to issue recommendations to the Librarian of Congress on "classes of works" that should be exempt from the ban on circumvention.
Members of the Shared Legal Capability (made up of representatives of the five major library associations: the American Library Association, the American Association of Law Libraries, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association) had called for a broad exemption from technological protection measures in order to ensure that library users could exercise fair use of protected material. The Assistant Secretary for Commerce, Gregory Rohde, noted that "information crucial to supporting scholarship, research, comment, criticism, new reporting, life long learning, and other related lawful uses of copyrighted information should never become available only to those with the ability to pay." He called for exemptions "grounded in the principle of fair use" that would allow the public to fully realize their access to lawfully acquired information.
On October 27, 2000, the Librarian of Congress announced the exemption of two narrow classes of works: compilations of lists of websites blocked by filtering software applications; and literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsolescence. In issuing the rulemaking, the Librarian of Congress noted several concerns and stated his intent to call upon Congress to reconsider selected aspects of the copyright legislation. In particular, he noted the "potential damage to scholarship" and possible harm to "American creativity" resulting from provisions in the statute.
The full recommendation of the Register of Copyrights and determination of the Librarian of Congress can be found at: http://www.loc.gov/copyright/1201/anticirc.html.
2000: Register.com v. Verio
Verio extracted information from the publicly available Register.com WHOIS database for use in telemarketing. In response, Register.com sued Verio and was successful in New York Southern District Court in December 2000. The judge ordered Verio to stop using customer contact information it had acquired through the WHOIS database for mass marketing purposes. At issue are limits on access to and use of personal information on publicly available online databases.
2001: Greenberg v. National Geographic Society
Two photographers claimed that the inclusion of their photographs in the National Geographic Society's (NGS) CD-ROM version of the NGS magazine violated their copyrights and that the NGS was not exempt under Section 201(c) of the Copyright Act. Section 201(c) permits the owner of copyright in a collective work, such as a magazine or encyclopedia, to reproduce and distribute an individual author's freelance contribution "as part of that particular collective work, any revision to that collective work, and any later collective work in the same series."
"The Complete National Geographic," a thirty-disc CD-ROM set, reproduced each monthly issue of the National Geographic magazine from 1888 through 1996. Each NGS magazine included in the CD-ROM is an exact replica of the entire magazine; thus a user encounters photographs of a freelance author's article in the original context.
2001: New York Times v. Tasini
On June 25, 2001, the U.S. Supreme Court issued its decision in the case of The New York Times v. Tasini.In a decisive 7-2 ruling, the Justices upheld an appeals court ruling that the reuse of a freelance author's work on CD-ROMs and in commercial electronic databases without the author's permission constituted copyright infringement. In its ruling, the Court rejected the publishers' argument that a ruling for the authors would have "devastating" consequences, requiring them to delete freelance writers' works in commercial electronic databases. The Supreme Court explicitly noted in its opinion that deletion of the freelance writers' articles was not necessarily the only outcome and that publishers could explore other alternatives. The Justices pointed out that there are "numerous models for distributing copyrighted works and remunerating authors for their distribution" such as the system of blanket performance licenses for musical compositions.
The New York Times now requires permission for electronic republication of works by freelance authors, but this was not standard industry practice until the 1990s. Equally important, implicit in the Court's decision was the recognition that the nation's libraries and archives continue to provide access to the historical record of periodicals and newspapers. In addition, the Court's ruling recognized that certain archival media, such as microfilm and microfiche, do not infringe freelance authors' copyrights. Ultimately, The New York Times and other publishers chose to remove the freelance writers' works, as many as 115,000 articles, from Lexis/Nexisand other full-text databases if the writers did not waive t heir claims for compensation under the decision.
2001: Russian Programmer Arrested for Copyright Circumvention
Among the first challenges to the DMCA was the case of Dmitri Sklyarov, a Russian programmer accused of circumventing copyright protections in Adobe Systems’ eBook Reader while working for a Russian software firm, ElcomSoft. Sklyarov was arrested in July 2001. ElcomSoft was charged with one count of conspiracy and four counts of trafficking in technology used to circumvent copyright protections.
On April 2, 2002, Judge Ronald Whyte of the Northern District of California denied a motion to dismiss the prosecution of ElcomSoft. ElcomSoft’s attorneys argued that the actions at issue in the case occurred outside of the U.S., and that the law banned tools that consumers could use for legitimate purposes, such as blind people converting e-books to audio files to be read aloud by their computers. Finally, the attorneys argued that computer code is speech and is therefore protected under the first amendment to the U.S. Constitution.
2001: State Sovereign Immunity
According to the Eleventh Amendment to the U.S. Constitution, state entities, including universities and libraries, may not be held liable in federal court cases. After a series of U.S. Supreme Court decisions held that the sovereign immunity clause exempts state entities from adherence to federal intellectual property laws, the Texas Northern District Court took up the question of state immunity from copyright infringement litigation in January 1998. The court concluded that a state agency cannot be held liable for copyright infringement in federal court. In April 1998, the Fifth Circuit Court of Appeals affirmed the decision, finding that the University of Houston, a state agency, could not be held liable in federal court for copyright infringements.
On November 1, 2001, Patrick Leahy (Chair, Committee on the Judiciary, D-VT) introduced S. 1611, the "Intellectual Property Protection Restoration Act of 2001," to address what is seen by many as an inequitable situation under which state entities can use federal law to protect their own intellectual property but may infringe the copyright, patent, and trademark laws that protect others' intellectual property. S. 1611 would make the availability of federal intellectual property protection laws contingent upon the voluntary waiver by states of their own immunity from suit under the sovereign immunity clause of the U.S. Constitution.
2002: Consumer Broadband and Digital Television Promotion Act (S. 2048) Introduced in Senate
On March 21, 2002, Sen. Ernest Hollings (Chair, Committee on Commerce, Science, and Transportation, D-SC) introduced the "Consumer Broadband and Digital Television Promotion Act" (S. 2048). The goal as stated in the bill is "to regulate interstate commerce in certain devices by providing for private sector development of technological protection measures to be implemented and enforced by Federal regulations to protect digital content and promote broadband, as well as the transition to digital television, and for other purposes." The bill requires that any device that can record, receive, or store copyrighted digital information comply with copy-protections encoded in digital works such as DVDs, CDs, and electronic books.
2002: ABA Issues UCITA Report
The National Conference of Commissioners on Uniform State Laws (NCCUSL), the body that introduced UCITA in 1999 and continues to promote its adoption by state legislatures, met in early August 2002. The UCITA Standby Committee, responsible for drafting UCITA, proposed thirty-eight amendments. Those amendments were adopted despite a lengthy debate in which delegates pushed for additional changes. Forty delegates signed a petition to downgrade UCITA from a "uniform law" to a "model law," a move that would remove NCCUSL's obligation to promote the law in state legislatures. Although the effort was unsuccessful, the debate revealed widespread disenchantment with UCITA within NCCUSL.
On January 31, 2002, the ABA Working Group assigned to review UCITA issued its report to the Board of Governors. UCITA seeks to replace the public law of copyright with the private law of contracts. UCITA was passed by state legislatures in Maryland and Virginia in 2000, but has yet to pass in other states due to significant opposition in the public and private sectors.
As part of the ABA review, NCCUSL, the body responsible for drafting UCITA in 1999, scheduled hearings in fall 2001 and invited interested parties to submit amendments. Representatives from ARL, ALA, and AALL drafted two amendments: 1.) To clarify that terms in non-negotiated licenses would not be enforceable if they prohibited activities normally permissible under federal copyright law; and 2.) To broaden the criteria for declaring such contract terms unenforceable.
2002: Senate Approves Distance Education Legislation
The "Technology Education and Copyright Harmonization Act," or the "TEACH Act" (S. 287) became law on November 2, 2002. The legislation supported by members of the higher education and library communities, implements recommendations made by the Copyright Office in 1999. Among the benefits of the Act for distance education are an expansion of the scope of materials that may be used in distance education; the ability to deliver content to students outside the classroom; the opportunity to retain archival copies of course materials on servers; and the authority to convert some works from analog to digital formats. On the other hand, the TEACH Act conditions those benefits on compliance with numerous restrictions and limitations. Among them are the need to adopt and disseminate copyright policies and information resources; implementation of technological restrictions on access and copying; adherence to limits on the quantity of certain works that may be digitized and included in distance education; and use of copyrighted materials in the context of "mediated instructional activities" akin in some respects to the conduct of a traditional course.
2003: Eldred v. Ashcroft
On January 15, 2003, the United States Supreme Court ruled in Eldred v. Ashcroft, a challenge to the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act. The Court rejected the plaintiff's argument that repeated retroactive copyright term extensions would be in violation of intent of the Constitution's Copyright Clause's "for limited Times" term.
2003: Dastar Corp. v. Twentieth Century Fox Film Corp.
In Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court ruled that works in the public domain could be repackaged and sold as new works without providing credit or citation to the original authors. Dastar had purchased videotapes of a TV series originally published by Fox that had entered into the public domain. When Dastar edited, repackaged, and sold the TV series, it provided no attribution back to the original authors. Fox sued Dastar for violation of §43(a) of the Lanham Act. The Court rejected this theory, reasoning that a plain text interpretation of §43(a) did not support Fox’s claims and that Fox’s interpretation of §43(a) would conflict with the policy goals of the Copyright Act provisions on public domain and the limited authorial rights in the Visual Artists Rights Act.
2003: Kelly v. Arriba Soft
In Kelly v. Arriba Soft, a photographer sued the search engine company, Arriba Soft, for thumbnails of and in–line linking to images hosted on his website. On appeal, the Ninth Circuit ruled that the thumbnails Arriba Soft created of Kelly's photos were covered by fair use exemptions and did not constitute copyright infringement.
2003: Rulemaking on Exemptions to the DMCA Anticircumvention Provisions
In 2003, the Librarian of Congress announced four classes of works that would be exempted from the prohibition against circumvention of technological protection measures: 1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites, or portions of websites; 2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete; 3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access; and 4) Literary works distributed in e-book format when all existing e-book editions of the work contain access controls that prevent the rendering of text into specialized formats. The full text of these categories of works is available here: http://www.copyright.gov/1201/2003/index.html. These exemptions would remain in effect until October 27, 2006.
2004: Chamberlain Group Inc. v. Skylink Techs. Inc.
In Chamberlain Group Inc. v. Skylink Techs. Inc., the Federal Circuit ruled in a court battle between a garage door manufacturer, Chamberlain, and the manufacturer of universal garage door openers, Skylink. In order to work with Chamberlain's garage door system, Skylink needed to circumvent a lockout code contained in Chamberlain's embedded software. Chamberlain claimed that Skylink, by doing so, violated the anti–circumvention provision of the Digital Millennium Copyright Act.
The court rejected Chamberlain's claim and found that the anti–circumvention provision of the Digital Millennium Copy Act required that the circumvention either infringe or contribute to infringement of copyright. Skylink's circumvention of the Chamberlain garage door opening code could not meet this requirement, as no copyright infringement was furthered by the Skylink universal garage door opener.
2004: Lexmark v. Static Control Components
In Lexmark v. Static Control Components, Lexmark sued Static Control Components to block third–party suppliers from providing discount ink cartridges compatible with Lexmark's printers. Lexmark printers contained proprietary software that would only accept Lexmark ink cartridges, which also contained proprietary software. Static Control Components reverse engineered the embedded Lexmark ink cartridge software and provided microchips to third–party companies who produced Lexmark compatible cartridges. Lexmark sued Static Control Components for both copyright infringement and violation of the DMCA's anti–circumvention provisions. The court, however, rejected both of these claims. In particular, the court found that the DMCA anti–circumvention provision could only apply if the circumvented measure protected copyright material from all forms of access. Lexmark's technological measure, however, restricted only one form of access.
2005: Family Entertainment and Copyright Act
The Family Entertainment and Copyright Act was enacted on April 27, 2005. One part of the Act, the Artist's Rights and Theft Prevention Act of 2005, created criminal penalties for individuals who record motion pictures in a theater or for individuals who distribute unpublished works, such as movies or software. The Family Entertainment and Copyright Act also included the Family Home Movie Act of 2005. The Family Home Movie Act provided a statutory exemption for DVD players and other home movie players that contain technology to skip objectionable content.
2005: Faulkner v. National Geographic Society
In Faulkner v. National Geographic Society, the National Geographic was sued by past contributors for copyright infringement for creating and selling a CD–ROM collection of past issues of the National Geographic Magazine. National Geographic argued that the CD–ROM collection of past magazines was a compilation revision, allowed under copyright law, and not a new derivative work. National Geographic had previously been sued and lost in the case, Greenberg v. National Geographic Society, for their CD–ROM collection.
Faulkner, however, was brought after the Supreme Court decided New York Times Co. v. Tasini and clarified which digital distributions could be considered revisions. The Second Circuit, relying on Tasini, split with the Eleventh Circuit Greenberg court and held that the National Geographic CD–ROMs were a revision under copyright law. The Supreme Court declined to hear an appeal from the Faulkner case, so a split persists between the Second and Eleventh Circuits.
2005: American Library Association v. Federal Communications Commission
In November of 2003, the Federal Communications Commission (FCC) adopted a rule that would have required manufacturers of digital television equipment to honor a "broadcast flag" — copy protection for digital TV — embedded in TV signals. Library and consumer organizations challenged the FCC order on the grounds that the FCC had exceeded their statutory authority. The U.S. Court of Appeals for the District of Columbia Circuit agreed with the plaintiffs and ruled, in American Library Association v. Federal Communications Commission, that the FCC's authority ended at the point of signal transmission.
2005: Metro-Goldwyn-Mayer Studios v. Grokster
On June 27, 2005, the United States Supreme Court ruled against Grokster, a peer-to-peer file-sharing company. Grokster had sought to avoid secondary copyright infringement liability by relying on Sony Corp. v. Universal City Studios. Grokster argued that Sony limited distributor liability for any technology that had substantial non–infringing uses.
In Metro-Goldwyn-Mayer Studios v. Grokster, the Court distinguished Sony and found that the possibility of substantial non–infringing use of a product did not shield a distributor who "promot[ed] its use to infringe copyright." The Court sent the case down for further proceedings, but adopted an active inducement theory that would hold any active inducers liable for secondary copyright infringement.
2005: Google Library Project
In 2005, Google launched a project to digitize and index the collections of several research libraries. Google seeks to use the digitized books in its search engine by providing brief, few sentence long or less, search results. Google will then provide links to websites from which the books can be purchased and libraries from which the books can be borrowed. Five publishers have sued Google for copyright infringement, and the Authors Guild has filed a separate class action against Google. Based on the limited quotations actually displayed to the user, Google has argued that its use of the books falls under the fair use provision of the Copyright Act.
2005: Mannion v. Coors Brewing Company
The Southern District Court of New York considered what the copyrightable elements of a photograph are. The dispute arose when the defendant, Coors Brewing Company, created a billboard that imitated Mannion's photo of basketball player Kevin Garnette posed in a white t-shirt in front of a background of clouded sky. The court noted that copyright protection in the plaintiff's photo was limited to the individual elements that constituted an "original work of authorship." Under the originality requirement, the court found that while the clouded sky, white t-shirt, and likeness of Garnette were unoriginal public domain elements—and therefore not copyrightable—the plaintiff's original composition and arrangement of the elements as a whole in the photograph was protected. Thus, Coors infringed Mannion's copyrighted photo to the extent that it copied the composition and arrangement of Mannion's photo without authorization. Find more information at http://scholar.google.com/scholar_case?q=mannion+v.+coors+brewing+company&hl=en&as_sdt=2,9&case=16977894138805983217&scilh=0.
2006: Field v. Google
On January 19, 2006, Google prevailed in a case brought by an author and lawyer who alleged that Google violated the reproduction and distribution rights of his original web content by providing copies through Google's website cache. The Court, however, found that Field had granted Google an implicit license by failing to indicate that the content should not be archived, even though he was aware of technical steps to block archiving. Furthermore, the Court found that Google's use of the web content was fair and that Google's automatic, non–volitional delivery of cached content could not constitute direct infringement under the Copyright Act.
2006: Perfect 10 v. Google
In Perfect 10 v. Google, the adult website and publisher Perfect 10 sued Google for direct and secondary copyright infringement stemming from Google Image Search. Google Image Search indexes images publicly available on the Web and presents the results as thumbnails of and links to responsive images. Google indexed third–party websites that hosted infringing Perfect 10 images and thus linked to and created thumbnails of Perfect 10 images. Perfect 10 sued Google for the thumbnails, the links to the infringing images, and for secondary infringement by creating an audience for the infringing content.
The district court in Perfect 10 v. Google ruled that Google did not infringe by linking to infringing images or by "creating an audience." The court adopted a "server test" for in–line linking that would hold Google liable only for content hosted on its own web servers. The court, however, distinguished Perfect 10 v. Google from Kelly v. Arriba Soft and ruled that Google's thumbnails were not covered under fair use. In Perfect 10, the court found that Google profited from ads placed on the infringing websites. The court also found that Google's thumbnails competed with similar size and quality images Perfect 10 licenses for mobile viewing.
Both Perfect 10 and Google have appealed the decision to the Ninth Circuit Court of appeals.
2006: HR 5439
In 2005, the Copyright Office began studying "Orphan Works," works still under copyright whose owners cannot be located. The Copyright Office conducted two roundtable discussions and several informal discussions with groups representing copyright owners and users. The office released a report to Congress detailing the problem and suggesting a possible legislative approach to solve the problem.
After extensive negotiations, Chairman Lamar Smith (chair, Subcommittee on Courts, Internet, and Intellectual Property, Committee on the Judiciary and R–TX) introduced H.R. 5439, "Orphan Works Act of 2006." The bill has been reported out of the Subcommittee and is pending before the House Committee on the Judiciary.
2006: CleanFlicks v. Soderbergh
CleanFlicks provides edited versions of DVD movies to home viewers who wish to avoid objectionable content. On July 6th, 2006, CleanFlicks lost a court case, CleanFlicks v. Soderbergh, against a group of directors and motion picture studios who claimed that CleanFlicks infringed their exclusive right of distribution. The Court rejected CleanFlicks's fair use defense, finding that CleanFlicks's edits were non–transformative and that public benefits were not outweighed by "the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright." The case is currently on appeal.
2006: Communications, Consumer's Choice, and Broadband Deployment Act, S. 2686, 109th Congress
Senator Ted Stevens introduced S. 2686, the Communications Consumer's Choice, and Broadband Deployment Act of 2006. The bill would have included a broadcast flag requirement similar to the one that the FCC unsuccessfully attempted to enforce in American Library Association v. Federal Communications Commission. Under the proposed requirement, a "broadcast flag" sent through the data stream of a digital television program would have indicated any recording or copying restrictions. While the Senate Commerce Committee approved the broadcast flag provision, the overall bill never passed on the Senate floor. For more information, visit http://www.gpo.gov/fdsys/pkg/BILLS-109s2686is/pdf/BILLS-109s2686is.pdf.
2006: Copyright Office Report on Orphan Works
In response to a 2005 request from Senators Orrin Hatch (R-UT) and Patrick Leahy (D-VT), the US Copyright Office undertook a review of the orphan works problem and developed recommendations based on its review and public input. The report explored the orphan works problem, finding that there are no serious arguments questioning the existence of the problem. Additionally, it identified obstacles to identifying and locating rightsholders and the legal background that frames the discussion. The report included proposed solutions and recommendations, which included requiring a reasonably diligent search before designating a work as an orphan, limitations on remedies available to a plaintiff upon a showing of a reasonably diligent search by defendants, and an attribution requirement when using works reasonably believed to be orphaned. For more information, visit http://www.copyright.gov/orphan/orphan-report-full.pdf.
2006: T-Peg Inc. v. Vermont Timber Works, Inc.
This case presented the first opportunity for the courts to apply the Architectural Works Copyright Protection Act ("AWCPA"), Pub. L. No. 101-650, §§ 701-706, 104 Stat. 5089, 5133-34 (1990), which added architectural works as a new category of copyrightable expression under the Copyright Act. The court had to determine whether the defendant infringed the plaintiff's architectural work when that work was not yet built but merely drawn in design blueprints. The First Circuit Court of Appeals held that it did not matter whether the architectural work was actually built, as copyright protection in the work extended to the form as well as the arrangement and composition of spaces and elements expressed tangibly in the blueprint design. For more information, visit http://scholar.google.com/scholar_case?q=t-peg+v.+vermont+timber+works&hl=en&as_sdt=2,9&case=3788590760819179377&scilh=0.
2006: Bill Graham Archives v. Dorling Kindersley, Ltd.
The US Court of Appeals for the Second Circuit clarified the extent to which the fair use doctrine is available as an affirmative defense to a claim of infringement in this seminal copyright case involving images reprinted in a coffee table book. Defendant Dorling Kindersley reproduced, at a reduced size, Bill Graham Archives' copyrighted poster images relating to the music group the Grateful Dead for use in a coffee table book about the history of the band. In balancing the four factors of the fair use analysis, the court found that while the images were exact reproductions, and thus copied the entire original work, the use was transformative because the posters were recontextualized and repurposed; the posters were used not for their original advertising purpose but for historical documentation. This analysis led the court to conclude that the use was fair, and that fair use does not necessarily require a literal transformation of the copyrighted work, but rather a transformative (i.e., recontextualized or repurposed) use of the work. For more information, visit: http://scholar.google.com/scholar_case?q=Bill+Graham+Archives+v.+Dorling+Kindersley,+Ltd.&hl=en&as_sdt=2,9&case=4859855179349004000&scilh=0.
2006: Rulemaking on Exemptions to the DMCA Anticircumvention Provisions
In 2006, the Librarian of Congress announced that six classes of works would be exempted from the prohibition against circumvention of technological protection measures: 1) Audiovisual works included in the educational library of a college or university's film or media studies department for the purpose of educational use in the classroom by media or film professors; 2) Computer programs and video games distributed in formats that have become obsolete for the purpose of preservation or archival reproduction by a library or archive; 3) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete; 4) Literary works distributed in e-book format when all existing e-book editions of the work contain access controls that prevent the rendering of text into specialized formats; 5) Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network; 6) Sound recordings, and audiovisual works associated with those sound recordings, distributed in compact disc format and protected by technological protection measures for the purpose of good faith testing or correcting such security flaws or vulnerabilities. These exemptions went into effect on November 27, 2006 and would remain in effect until October 27, 2009. The full text of each of these exemptions is available here: http://www.copyright.gov/1201/2006/index.html.
2007: Perfect 10 v. Amazon
This case involved Google's use of "thumbnail" versions of the plaintiff's copyrighted images in its search engine. At issue was whether the use of "in-line linking" to full-sized images and the display of thumbnail versions of the plaintiff's images constituted an unauthorized distribution or display of the work under the Copyright Act. The US Court of Appeals for the Ninth Circuit found that in-line linking, which directed the user's browser to a full-size image on the plaintiff's website, was not an infringing display by Google. Further, although the display of thumbnail versions on Google's sites were unauthorized, Google had an affirmative fair use defense because the display of thumbnails was highly transformative, particularly in light of its purpose as a public search tool. For more information, visit http://scholar.google.com/scholar_case?q=Perfect+10+v.+Amazon&hl=en&as_sdt=2,9&case=17826705839648059877&scilh=0.
2007: Perfect 10 v. CCBill, LLC
The US Court of Appeals for the Ninth Circuit interpreted the applicability Digital Millennium Copyright Act's ("DMCA") safe harbor provisions. Under Section 512, the DMCA provides a safe harbor from liability for Internet service providers who act as mere conduits for infringing content so long as they reasonably implement a policy that terminates the account of a repeat infringer of copyrighted material. Perfect 10 sued CCBill, a payment services company, and CWIE, a webhosting and connectivity service company, for copyright infringement alleging that CWIE's and CCBill's clients were infringing its web content. The Ninth Circuit found that the defendants maintained the required termination policy and were not unreasonable in their failure to terminate the apparent infringement by clients because they did not have proper notice. The court emphasized that Section 512 does not require service providers to police the content on their server but rather to terminate at an "appropriate" time after having actual knowledge of infringing activity. Because Perfect 10 did not fulfill a critical notice requirement— declaring under penalty of perjury that it represents the copyright holder and has a good faith belief that the use is infringing—the defendants were not imputed with knowledge of infringement. For more information, visit http://scholar.google.com/scholar_case?q=Perfect+10+v.+CCBill+LLC&hl=en&as_sdt=2,9&case=4735249074019268133&scilh=0.
2007: Bridgeport v. Combs
The US Court of Appeals for the Sixth Circuit clarified the amount and availability of punitive damages under the Copyright Act in this case involving the alleged infringing sampling of the plaintiff’s song “Singing in the Morning” on the first album of rap star Notorious B.I.G. A jury found that the defendant, Justin Combs Publishing and Bad Boy Entertainment, infringed the plaintiff’s copyrighted song and awarded $366,939 in compensatory damages (intended to compensate the plaintiff) and $3.5 million in punitive damages (intended to punish the defendant). The defendants appealed on several grounds, including that the $3.5 million dollar punitive damage award was unconstitutionally excessive. Historically, it had been unclear whether punitive damages are available for claims under the federal Copyright Act. The Sixth Circuit added guidance for the reasonableness of punitive damages based on several factors that the Supreme Court previously set forth for determining the reasonableness of damages. In its analysis, the Sixth Circuit noted that: 1) Where the harm is only economic and not physical, 2) It is the defendant’s first offense, and 3) The plaintiff is not financially vulnerable, a ratio between 1:1 or possibly 2:1 between compensatory and punitive damages is all the Constitution’s due process standard will allow. Thus, the court found that the 9.5:1 ratio awarded by the jury did not satisfy the due process standard and remitted to the lower court to lower the punitive damages award. For more information, visit http://scholar.google.com/scholar_case?q=Bridgeport+v.+Combs&hl=en&as_sdt=2,9&case=1684435277251708517&scilh=0.
2007: Freedom and Innovation Revitalizing US Entrepreneurship Act of 2007 ("FAIR USE Act")
Congressman Rick Boucher introduced the FAIR USE Act, seeking to protect the fair use rights of consumers and to enhance library preservation efforts through the Copyright Act's Section 107 fair use right. The FAIR USE Act would have permanently enacted into law six narrow exemptions to the DMCA that were earlier approved by the Librarian of Congress, Dr. James H. Billington. The bill allowed six classes of works to be exempt from the DMCA's Section 1201 anticircumvention restrictions where the use is found to be noninfringing. The Act would have also enabled libraries to circumvent technological protections for the purposes of preservation. The FAIR USE Act did not make it out of the House Subcommittee on Courts, the Internet, and Intellectual Property. For more information, visit http://www.gpo.gov/fdsys/pkg/BILLS-110hr1201ih/pdf/BILLS-110hr1201ih.pdf.
2008: Richlin v. Metro-Goldwyn-Mayer Pictures
The co-authors of the movie treatment "Pink Rajah," which subsequently served as the inspiration for MGM's production of the movie sensation "Pink Panther," sued MGM based on a theory of 50 percent renewal ownership interest in the original treatment and all derivative works, including the "Pink Panther" movie. The plaintiffs had failed to renew their copyright in the treatment but argued that the renewal of the copyright in the "Pink Panther" motion picture effectively renewed the treatment's copyright because the movie was premised on the treatment. The court rejected this argument. The plaintiffs also asserted that the incorporation of ideas from the treatment into the motion picture rendered the plaintiffs default co-authors of the "Pink Panther" motion picture. The Ninth Circuit did not accept the plaintiff's claim of co-authorship, noting that although the treatment served as the inspiration for the movie, the plaintiffs had no control over or involvement in the creation of the motion picture, and therefore, were not co-authors with a copyright interest in "Pink Panther." For more information, visit http://scholar.google.com/scholar_case?q=Richlin+v.+Metro-Goldwyn-Mayer+Pictures&hl=en&as_sdt=2,9&case=14739926066751597405&scilh=0.
2008: WIPO Broadcasting Treaty
In June of 2004, the World Intellectual Property Organization ("WIPO") began deliberating a Broadcasting Treaty that would afford broadcasters economic rights, akin to copyright protection, in their broadcasts for up to 50 years. The treaty was originally couched in terms of an attempt to update the 1961 Rome Convention, but also adds many technologies that did not exist during the Rome Convention. The treaty would allow broadcasters to claim rights in their signals as well as rights to the creative content produced by other individuals. For example, a broadcasting company would own rights in the broadcast of a director's film that was licensed under a Creative Commons license. A revised draft of the treaty was issued in 2006, when various countries (including the US) sought to exclude webcasting from the treaty. After postponing discussions in 2007, the treaty became the focus of the WIPO Standing Committee on Copyright's 2008 meeting in Geneva. Agreement on text has not been reached, but WIPO's Standing Committee on Copyright and Related Rights continues to list broadcasters' rights as an issue on its meeting agenda. For more information, visit http://www.wipo.int/edocs/mdocs/copyright/en/sccr_s2/sccr_s2_paper1.pdf.
2008: Cartoon Network v. CSC Holdings
The US Court of Appeals for the Second Circuit held that Cablevision's offering of a remote-storage DVR service did not infringe the public performance and reproduction rights of copyright owners including Cartoon Network, CNN, and Fox. The Second Circuit reversed the lower court's holding on all three grounds at issue. First, it found that Cablevision's buffering of television programming content on its server for 1.2 seconds was only transitory in duration and did not meet the "fixed in a tangible medium" requirement necessary to constitute a copy. Second, and central to the court's analysis regarding Cablevision's liability for direct infringement, was the issue of who made the copies of the copyrighted television and film content. While the district court found that Cablevision made the copies of the television programming by offering to record the content at the user's request, the Second Circuit held that Cablevision's mere creation of a system that reproduces content was not sufficiently tied with the causation of illegal copying directed by users. Finally, the Second Circuit held that Cablevision's playback transmission service was not offered "to the public" (therefore not a public performance) because it was only directed to the particular user who requested the playback. For more information, visit http://scholar.google.com/scholar_case?q=Cartoon+Network+v.+CSC+Holdings&hl=en&as_sdt=2,9&case=13763893657469687275&scilh=0.
2008: Section 108 Study Group Issues Final Report
After three years of work, the Section 108 Study Group issued its final report focused on analyzing the exceptions and limitations of the Copyright Act's Section 108—affording libraries and archives limited rights of reproduction in copyrighted works—and issuing suggested changes to Section 108 to make copyright law more amenable to the needs of libraries, museums, and archives working in the digital environment. The Library of Congress and the US Copyright Office commissioned the Section 108 Study Group, which was comprised of librarians, lawyers, and publishers. Drawing conclusions from bimonthly meetings and public roundtables, the Final Report issued the following legislative recommendations: (1) adding museums to the institutions protected by Section 108; (2) creating a new exception to allow libraries to make a "preservation only" copy of at-risk works prior to their deterioration; (3) adding an exception to allow libraries and archives to capture and reproduce publicly available web sites and online content for preservation purposes and to make those copies accessible to users for private study, research and scholarship; (4) allowing libraries to have flexibility in making the necessary number of copies of copyrighted works to ensure their long term preservation rather than limiting them to three lawful preservation copies. The Study Group's report had no binding legal effect but merely operated as set of recommendations for the Copyright Office and Library of Congress.
2008: Jacobson v. Katzer
This ruling from the US Court of Appeals for the Federal Circuit is seen as a critical victory for open source licensing models, arising out of a dispute over model train software that the plaintiff, Jacobson, offered freely to the public, subject to specific terms of an "artistic license"—a form of open licensing. Jacobson alleged that the defendant, Katzer, infringed on the copyright in the software when Katzer did not comply with the terms of the artistic license when he used Jacobson's textual files for his own computer program. The district court held that while Katzer might have breached the artistic licensing conditions, this did not give rise to an actionable claim for copyright infringement. The Federal Circuit reversed the district court's ruling, asserting that artistic licensing conditions, including non-exclusive licenses, create enforceable copyright conditions. Katzer's refusal to comply with the licensing conditions created an actionable claim for copyright infringement under the open licensing system. For more information, visit http://scholar.google.com/scholar_case?q=Jacobson+v.+Katzer&hl=en&as_sdt=2,9&case=17776182574171214893&scilh=0.
2008: Prioritizing Resources and Organization for Intellectual Property Act
In December 2008, President George W. Bush signed the PRO-IP Act into law. The Act was designed to strengthen protection for rights holders and increase penalties for counterfeiting and infringement of intellectual property rights. Among other amendments to the Copyright Act, the PRO-Act established that registration is not a prerequisite for criminal prosecution of copyright infringement. Additionally, the PRO-IP Act calls for the President to appoint an Intellectual Property Enforcement Coordinator ("IPEC") who is required to develop a Joint Strategic Plan to help combat infringement and counterfeiting of intellectual property in the US and in foreign countries. For more information, visit http://www.gpo.gov/fdsys/pkg/PLAW-110publ403/pdf/PLAW-110publ403.pdf.
2008: WIPO Efforts to Protect Traditional Cultural Expressions
Beginning in 2001, WIPO increased its efforts to protect Traditional Culture Expressions ("TCE") by creating the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). TCEs represent works of indigenous peoples and traditional communities and can include stories, legends, names, symbols, songs, and music. The IGC is charged with the difficult task of providing intellectual property protection for TCEs where the works cannot be easily protected by copyright law or other intellectual property laws. For example, many TCEs do not have one clear author or owner; thus, it is difficult to protect them under US copyright law. In response, the IGC has worked to define the issues and options for possible legal protection for TCEs. Additionally, WIPO launched the Creative Heritage Project in 2008 to develop best practices and guidelines for managing intellectual property issues when recording, digitizing, and disseminating cultural heritage.
2009: Arista Records, LLV v. Launch Media, Inc.
The Second Circuit considered whether a "webcasting" Internet radio service that allowed users to tag favorite songs and tailor the station to their particular music preferences was an "interactive service" under Section 117 of the Copyright Act. If the defendant's Internet service, "Launch" radio, constituted an "interactive service," it would be required to pay individual licensing fees to the copyright owners for each song rather than statutory licensing fees established by the Copyright Royalty Board. The court found that the Launch service was not interactive because a user could not request that a particular song be played on demand, and the service did not offer stations specifically designed and created for each individual user. For more information, visit http://scholar.google.com/scholar_case?q=Arista+Records,+LLC+v.+Launch+Media,+Inc&hl=en&as_sdt=2,9&case=4815766747883301339&scilh=0.
2009: A.V. v. iParadigms, LLC
IParadigms owned a service called TurnItIn, a database which compares a student's work submitted through the site with content available on the Internet, including papers previously submitted to the service, to determine whether plagiarism existed. The Fourth Circuit held that no copyright infringement existed because iParadigm's use of the student papers was transformative fair use. The Fourth Circuit found that, even though the fact that TurnItIn was a commercial service and included the entirety of the works submitted, the use was "highly transformative" in its function.
2009: Associated Press v. All Headline News Corp.
The Southern District Court of New York determined the extent of copyright protection for "hot news" received over the Internet. The Associated Press (AP) sued the All Headline News Corp. ("AHN") alleging that AHN was free riding on AP's copyrighted stories by paying journalists to search the Internet for AP news articles and republish them under the AHN name. The court affirmed that under INS v. Associated Press, 248 US 215 (1918), "hot news" items are protected from misappropriation. Additionally, the court denied the defendant's motion to dismiss allegations that AHN violated the DMCA when it removed and altered the copyright management information of AP, including the name and identifying information about the copyright owner. The court found that these provisions of the DMCA are not limited to removing technological measures of automated systems. For more information, visit http://scholar.google.com/scholar_case?q=Associated+Press+v.+All+Headline+News+Corp.&hl=en&as_sdt=2,9&case=6285496836987996092&scilh=0.
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2010: Salinger v. Colting
In the summer of 2009, J.D. Salinger, author of the famed coming of age story Catcher in the Rye, sued Fredrick Colting, author of 60 Years Later: Coming Through the Rye for copyright infringement and sought to obtain a preliminary injunction to stop publication of Colting's book. Salinger claimed that the similarities between the books rendered 60 Years Later an unauthorized sequel to Catcher in the Rye, violating Salinger's exclusive right to produce derivative works. While the district court issued the preliminary injunction, the US Court of Appeals for the Second Circuit vacated the order explaining that the lower court did not go through the proper test for deciding whether to issue a preliminary injunction—a test set forth by the Supreme Court in eBay v. MercExchange, 547 US 388 (2006). The Second Circuit noted that Salinger would likely win on the merits of the case but remanded to the lower court to determine whether a preliminary injunction was a proper remedy considering the following factors set forth in eBay v. MercExchange: (1) An irreparable injury to plaintiff; (2) Legal (monetary) remedies are inadequate; (3) Balance of hardships to each party, and (4) The public interest in the preliminary injunction. While the eBay case dealt with patent infringement, the Second Circuit's decision in Salinger is significant because it engages in the same four-factor analysis before issuing preliminary injunctions in copyright infringement claims. This analysis is a significant shift from courts' previous practice of routinely granting injunctions based on a presumption of irreparable harm. For more information, visit http://scholar.google.com/scholar_case?q=Salinger+v.+Colting+&hl=en&as_sdt=2,9&case=14430115072998341439&scilh=0.
2010: Gaylord v. United States
The guide set forth below is available in PDF here: Copyright and Fair Use: A Guide for the Harvard Community. You may also read frequently asked questions concerning copyright and privacy for more information.
Copyright and Fair Use: A Guide for the Harvard Community
Basics of Copyright
- What is copyright?
- Why is copyright necessary?
- What can be copyrighted?
- What does copyright protect?
- What does a copyright authorize the copyright owner to do, or to restrict others from doing?
- Who owns the copyright?
- Can a copyright be transferred to someone else?
- How does a work become copyrighted?
- Should I include a copyright notice or register the copyright in my work?
- Can I avoid infringement by crediting the source?
- When do copyrights expire, and how can I determine if an old work is still covered by copyright?
- Does a copyright expire when a work goes out of print?
- How do I get permission to reproduce or disseminate someone else's copyrighted work?
- What happens to copyright in cyberspace?
- What should I be aware of when I create a website?
- What about linking to material licensed by Harvard?
- What about linking to other material?
Fair Use of Copyrighted Material
- What is "fair use"?
- What is the test for fair use?
- What considerations are relevant in applying the first fair use factor—the purpose and character of the use?
- What considerations are relevant in applying the second fair use factor—the nature of the copyrighted work?
- What considerations are relevant in applying the third fair use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole?
- What considerations are relevant in applying the fourth fair use factor—the effect upon the potential market for or value of the copyrighted work?
- How should one weigh the various factors in arriving at a determination whether there is fair use?
- How does fair use apply to photocopying of course materials?
- How does fair use apply to the use of third-party materials on a course website?
- What are the rules for performing a musical or literary work, or showing a film or video, in class?
Copyright and Permissions at Harvard
- How do I determine whether or not copyright should be in Harvard's name?
- What happens if I receive a request from someone else to copy or quote from a work that is copyrighted by "President and Fellows of Harvard College"?
- Do I need permission to use or copy material that has already been copyrighted by Harvard?
- What provisions should I make when retaining an outside vendor to create a work for Harvard (sometimes known as "work for hire")?
- If I am using a commercial computer program for my work, can I make a copy for a colleague, or a copy for my computer at home so that I can work there?
Copyright © 2016 President and Fellows of Harvard College
Basics of Copyright
What is copyright?
Copyright is the lawful right of an author, artist, composer or other creator to control the use of his or her work by others. Generally speaking, a copyrighted work may not be duplicated, disseminated, or appropriated by others without the creator's permission. The public display or performance of copyrighted works is similarly restricted.
There are exceptions to this rule—notably the fair use doctrine discussed in the following Section—but generally the unauthorized use of a copyrighted work is copyright infringement, and may subject the infringer to civil and criminal penalties under federal law.
The present Copyright Act dates from 1978, but copyright is an ancient doctrine, with its roots in Elizabethan England. The framers of the Constitution authorized Congress to "promote the progress of science and the useful arts, by securing for limited times to authors . . . the exclusive right to their respective writings . . . ." Today, copyright law goes far beyond "writings" narrowly construed. It extends to literary, dramatic and artistic works, musical compositions and computer programs.Why is copyright necessary?
On the other hand, we want society as a whole to benefit from new ideas and information, and so copyright protection is limited. Copyright protects only the form in which ideas and information are expressed. Copyrights expire after a certain period of time. And the law allows certain limited uses of copyrighted material by others, without the creator's permission. The most important such use is "fair use," which is discussed in the next Section.
What can be copyrighted?
Broadly speaking, one can copyright any original work of authorship that can be "fixed in any tangible medium of expression," such as written on paper, or encoded on disk or tape, or recorded on film. This includes fiction and nonfiction writings, poetry, musical compositions (words and music alike), sound recordings, photographs, paintings and drawings, sculpture, architectural works, databases, audiovisual works such as movies, and multimedia works such as those on compact discs. Computer programs can be copyrighted, and almost always are. Unless a program is clearly denoted "freeware," you should assume it is subject to copyright protection.
Unlike a patent, the degree of creativity necessary to qualify for a copyright is very modest. Virtually any original work—even a casual letter, or a compilation of information that involves some originality in selection or arrangement, such as a directory, an anthology, or a bibliography—can be copyrighted.
What does copyright protect?
Copyright does not protect ideas, nor does it protect facts. It protects only the form in which ideas or facts are expressed. For example, you may read a copyrighted paper and appropriate its ideas, or facts it conveys, into your own work without violating the copyright. However, you may not reproduce the actual text of the paper (unless fair use or another exception to copyright protection applies), nor may you evade this prohibition simply by changing some words or thoroughly paraphrasing the content.
What does a copyright authorize the copyright owner to do, or to restrict others from doing?
Subject to certain limitations, a copyright owner has the exclusive right to:
- reproduce the work by making copies of it;
- distribute copies of the work to the public by sale, donation, rental, or lending;
- prepare new works derived from the original (for example, a novel adapted into a play, or a translation, or a musical arrangement); and
- publicly perform or display the work.
Anyone who does any of these things without authorization infringes the copyright and can be liable to the copyright owner for damages. In some cases, in lieu of proving actual damages, the copyright owner can recover statutory damages of up to $30,000, or up to $150,000 if the infringement was willful, for the infringement of a work. Infringement can also be a crime, punishable by fine or imprisonment.
Who owns the copyright?
Ordinarily, the creator does. However, if he or she creates the work in the course of employment or is retained under an appropriate contract to make the work, then the work is a "work made for hire," and the employer or the contracting party owns the copyright. Co-creators jointly own the copyright in the work they create together.
In some situations, when a work is created by a member of the University, Harvard policies vary the ownership that would otherwise result under copyright law. For example, faculty often own the copyright in works they create even in the course of their employment. Harvard’s Intellectual Property Policy can be found at www.techtransfer.harvard.edu/resources/policies/IP/.
Can a copyright be transferred to someone else?
Like any other property, a copyright can be sold or given to someone else, who then becomes the owner of the copyright. A copyright is a bundle of exclusive rights, which can be transferred separately or all together. For example, in signing a book contract, an author typically transfers or grants the publisher exclusive publication rights.
A copyright owner can also retain the copyright but permit (or non-exclusively license) others to exercise some of the owner's rights. For example, a photographer might permit the use of one of her photographs on a book jacket. A shrink-wrap license accompanying a computer program is another example of a non-exclusive copyright license.
How does a work become copyrighted?
Under current law, copyright protection begins when an eligible work is fixed in a tangible medium of expression, such as by being written on paper or recorded on film or disk. Contrary to popular belief, it is not necessary to register a work with the Copyright Office in Washington in order to copyright it, nor is it any longer necessary to include a copyright notice.
Although statutory copyright now arises when a work is fixed in a tangible form, common law copyright may protect expression that has not been fixed—for example, an extemporaneous lecture. In addition, bootlegged recordings of live musical performances are subject to statutory remedies.
Should I include a copyright notice or register the copyright in my work?
Although no longer required for copyright protection, a copyright notice is advisable. A proper notice generally requires the symbol "©" or the word "Copyright," together with the copyright holder's name and the year of first publication—for example, "© 2002 President and Fellows of Harvard College." This designation should appear on or near the title page in printed works, and on an early screen in electronic works. Though not required for copyright protection, a notice will prevent a defense of innocent infringement and will inform others that the work is copyrighted and by whom, thus potentially deterring infringement and facilitating requests for permission.
Registration of the copyright with the Copyright Office, while not necessary unless you wish to sue for infringement, confers certain benefits—for example, making statutory damages available—and thus may be desirable for some works. To gain some of those benefits, you must register before the infringement commenced or within a specified period after first publication of the work. Forms and instructions for registering a copyright are available at the U.S. Copyright Office website, www.copyright.gov.
Can I avoid infringement by crediting the source?
No. Copyright infringement and plagiarism are two different things. Plagiarism is the misappropriation of another's work, passing it off as your own without indicating the source. It is possible to plagiarize a work without infringing the copyright—for example if you take another’s ideas without proper attribution, even though you do not copy the language, or you borrow from a work whose copyright has expired. Conversely, it is possible to infringe without plagiarizing. Properly citing the work you are copying does not avoid liability for infringement.
When do copyrights expire, and how can I determine if an old work is still covered by copyright?
The answer is somewhat complicated, largely because the rules governing the copyright term have been amended a number of times. The term of United States copyright protection will depend upon when the work was created, whether it is unpublished or published, and when it was first published.
For works created in 1978 or thereafter, the copyright term commences upon creation. For most works, the term continues for the life of the author plus 70 years. For pseudonymous and anonymous works, and works made for hire, the term continues until 95 years from first publication or 120 years from creation, whichever expires first.
For works created before 1978, the following rules apply:
Works that were created before 1978 but remained unpublished on January 1, 1978 have the same term as works created in 1978 or thereafter, as described above, with one exception. The exception is that the copyright term of any such work that was published before the end of 2002 will not expire before the end of 2047.
Before the current Copyright Act became effective in 1978, publication of a work in the United States with a proper copyright notice conferred statutory copyright and commenced the copyright term. Publication of the work in the United States without a proper copyright notice placed the work in the public domain, with narrow exceptions. The same general rule continued, with somewhat broader exceptions, until March 1, 1989. Hence, for works published in the United States before 1978 (or, with more exceptions, before March 1, 1989), if there is no copyright notice, the work may well be in the public domain. Be particularly careful with works of foreign origin. Special rules have restored copyright in some foreign works published in this country without proper notice.
Works that were created before 1978 and published with a proper copyright notice before 1923 are now in the public domain. Works published with a proper copyright notice from 1923 through 1963 had an initial copyright term of 28 years, which could be renewed for a second term that now extends 67 years, for a total of 95 years. For these works, a renewal filing with the Copyright Office near the end of the first term was necessary to secure the second term; if a timely filing was not made, the work fell into the public domain at the end of the first term. To determine whether the copyright was renewed, you can check with the Copyright Office in Washington (202-707-3000, or www.loc.gov/copyright/). Alternatively, you can find some, but not all, Copyright Office renewal records online, either at the Copyright Office website (www.copyright.gov/records/index.html) or in a Copyright Renewal Database made available by Stanford University (https://collections.stanford.edu/copyrightrenewals/bin/page?forward=home). Works published with a proper copyright notice from 1964 through 1977 also had an initial term of 28 years, with a renewal term of 67 years, for a total of 95 years, but the renewal term vested or will vest automatically at the end of the first term without any filing.
A helpful chart by Lolly Gasaway summarizing these rules in a simple way, entitled “When Works Pass into the Public Domain,” may be found at www.unc.edu/~unclng/public-d.htm. A more comprehensive and detailed table by Peter Hirtle, entitled “Copyright Term and the Public Domain in the United States,” may be found at http://copyright.cornell.edu/resources/publicdomain.cfm. Footnote 1 of the Hirtle document contains references to a number of other useful resources.
Note that one work may incorporate or be based upon an earlier work. For example, with appropriate permission, a motion picture may be based on a novel, or a book may include a photograph. The copyrights remain separate. Hence, the copyright term of the earlier work is not extended by the use of that work in the later work. But the copyright notice on the later work may pertain only to the later work, which can lead to confusion about the copyright status of the earlier work. Sometimes a work that has fallen into the public domain is published with new commentary, notes or the like. The public domain work may be copied by others, but not the new matter, which is protected by copyright.
The discussion above concerns copyright term in the United States. The copyright term in foreign countries often varies from that in the U.S., especially for works created before 1978. This is true for works created in this country by U.S. authors, as well as works created abroad or by foreign authors. If you are reproducing, publishing, distributing or displaying a work in a foreign country, you will need to investigate the copyright term in that country, a subject beyond the scope of this guide.
Does a copyright expire when a work goes out of print?
No. The copyright lasts for a term of years (see above), regardless of whether the work is still in print.
How do I get permission to reproduce or disseminate someone else's copyrighted work?
Find the copyright owner and ask. There are no special forms that must be used, and permission can be oral or written, though it is good practice to obtain permission in writing. The copyright owner is free to charge whatever fee he or she wishes, though the user is likewise free to try to negotiate a lower fee. Most major publishers and periodicals have a "permissions desk" or a "rights editor," and a written request addressed in this way will usually find its way to the right person. You should specify the publication you wish to take from; the precise pages, chapters, photographs or the like you want to use; how many copies you want to make; and the purpose of your use (for example, "as a handout in an undergraduate course in economics at Harvard College"). Many permissions desks accept requests by e-mail or through the publisher's website.
You can make as many copies as you like, without advance permission, from certain academic and scholarly journals now enrolled with the Copyright Clearance Center, a private clearing house (978-750-8400; www.copyright.com). After you copy, you remit the prescribed per-copy fee to the CCC. If a publication is enrolled with the CCC, its masthead will usually provide the necessary information. (The CCC rules for course packs may differ; check with them for current information.)
What happens to copyright in cyberspace?
Because the electronic environment presents us with new media, and even calls into question the concept of works "fixed" in a "tangible medium," a great many questions challenge the conventions of copyright doctrine. Congress and the courts are struggling to keep up with new technology, and the opinions of scholars and commentators on how the law should cope with these new changes are in lively conflict.
Nonetheless, certain principles endure. The first and most important is that there is copyright law in cyberspace. A work that is available electronically—even if it is available only electronically—is as eligible for copyright protection as a work in any other medium. Thus, the fact that you can download text or graphics does not mean that the material is not copyrighted. And the ability to download a copyrighted work does not mean that you are free to disseminate that work to others, either electronically or in hard copy.
Those who put their work on the Internet and wish to control its use should use the copyright designation, just as they would do in print or any other medium.
You should abide by the following principles when you access a database or other electronic source of information from your own computer.
- You are free to read, watch or listen to any material to which you have authorized access, even if it is copyrighted. (In some cases you may have to pay a fee to do this.)
- Because downloading material to your own computer necessarily makes an electronic copy of it, and because printing what you've downloaded makes another copy, a copyright owner is entitled to prohibit downloading and printing.
- Remember that the site owner is not necessarily the copyright holder of the site's content. A site owner may hold the copyright to some materials but not others, or to none of it. Requests for permission should be directed to the copyright holder, not necessarily the website owner.
- Look for a copyright notice on the material. The notice may be on the opening screen, a home page, an "About this Program" screen, or at the beginning or end of individual items (such as an article or a graphic) within the database.
- If you are in a commercial database that charges a fee for searching material, and also permits you to download or print the material through mouse or key-stroke commands, you may assume that the copyright owner has authorized the operator of the database to allow users to download and print. You may pay an additional fee for this privilege. Multiple copies for classroom use may require additional fees.
What should I be aware of when I create a website?
If you create a website and wish to post copyrighted material on it, you must obtain the permission of the copyright holder, just as you would for more traditional media, unless fair use or another exemption applies. See the following section for a discussion of fair use and its application to course websites.
If you are requesting permission to post material for the use of students in a Harvard course, your request should specify that the material will be restricted (for example, by password or student ID number) to students enrolled in the course, and that the site will be deactivated at the conclusion of the course. Specify the expected enrollment. This information lets the publisher know that the material will not be available to the public, and allows publishers to set fees according to the number of users.
Harvard faculty and academic staff who create course web pages should consult their school's experts in this area (for example, FAS Academic Technology Group), who can provide technical assistance.
What about linking to material licensed by Harvard?
The Harvard libraries license a vast number of periodicals and other copyrighted works for educational use. If material you wish to make available to students is licensed, you will be able to establish a link to the resource from a course website, or otherwise furnish students a URL, which will enable them to access the material in electronic form and print a copy for personal use. To find out whether a particular article or other work is available through Harvard’s licensed resources, see http://p.lib.harvard.edu/discovery/journals.html. For instructions on creating links to those resources, see http://guides.library.harvard.edu/links.
What about linking to other material?
Like other aspects of digital media, the law relating to links from one website to another is not entirely settled. Generally, however, you should not have a problem if you simply post a link to another site, even if that site contains copyrighted material. In such a case, you are not publishing the material; you are simply pointing the way to someone else's publication.
You should not, however, provide a link to a site that you have reason to know is violating copyright law—for example, a site that illicitly allows the free downloading of copyrighted software, music, or other material. You may reasonably assume that a website has the right to include the material found there, unless you have reason to know it is infringing.
When you construct a link, be sure that it simply sends the user to another site. If you actually bring the material onto your own site, or “frame” it, you may be infringing copyright and may also mislead users as to the source of the content.
Fair Use of Copyrighted Material
What is "fair use"?
Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works. Together with other features of copyright law like the idea/expression dichotomy discussed above, fair use reconciles the copyright statute with the First Amendment.
What is the test for fair use?
The fair use defense is now codified in Section 107 of the Copyright Act. The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts. The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research)” is not an infringement of copyright. To determine whether a given use is fair use, the statute directs, one must consider the following four factors:
- the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit 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.
These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine. The following questions consider each of these four factors in turn.
What considerations are relevant in applying the first fair use factor—the purpose and character of the use?
One important consideration is whether the use in question advances a socially beneficial activity like those listed in the statute: criticism, comment, news reporting, teaching, scholarship, or research. Other important considerations are whether the use is commercial or noncommercial and whether the use is “transformative.”
Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones. However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit-making.
In recent years, the courts have focused increasingly on whether the use in question is “transformative.” A work is transformative if, in the words of the Supreme Court, it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Use of a quotation from an earlier work in a critical essay to illustrate the essayist’s argument is a classic example of transformative use. A use that supplants or substitutes for the original work is less likely to be deemed fair use than one that makes a new contribution and thus furthers the goal of copyright, to promote science and the arts. To quote the Supreme Court again, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”
Courts have also recognized, however, that non-transformative uses may be socially beneficial, and that a use does not have to be transformative to support a finding of fair use. The Supreme Court has cited reproduction of multiple copies for classroom distribution as the most obvious example of a non-transformative use that may be permitted as fair use in appropriate circumstances. The Court’s emphasis on whether a use is transformative, however, makes it difficult to know how to weigh uses that are for non-profit educational purposes but are also non-transformative. In addition, it could be argued in some circumstances that verbatim copying of a work for classroom use is “transformative,” in that (to quote from the Court’s definition) the instructor is adding “something new, with a further purpose or different character, altering the first with new expression, meaning or message” in the course of presenting the material.
Other factors that sometimes weigh in the analysis of the first fair use factor include whether the use in question is a reasonable and customary practice and whether the putative fair user has acted in bad faith or denied credit to the author of the copyrighted work.
What considerations are relevant in applying the second fair use factor—the nature of the copyrighted work?
The two main considerations are whether the work is published or unpublished and how creative the work is. Unpublished works are accorded more protection than published ones, as the author has a strong right to determine whether and when his or her work will be made public. The fact that a previously published work is out of print may tend to favor fair use, since the work is not otherwise available.
Works that are factual and less creative are more susceptible of fair use than imaginative and highly creative works. This is in keeping with the general principle that copyright protects expression rather than ideas or facts.
However, the second factor is typically the least important of the fair use factors.
What considerations are relevant in applying the third fair use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole?
Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantiality of the portion used. What percentage of the original work has been used? There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use.
Even if the percentage is fairly small, however, if the material used is qualitatively very important, this factor may weigh against fair use. Thus, for example, in a case in which The Nation magazine published excerpts, totaling only 300–400 words of verbatim quotes, from Gerald Ford’s forthcoming book-length memoir, the Supreme Court held that the third factor weighed against fair use, because the excerpts included Ford’s discussion of his pardon of Nixon and other central passages that the court found to be the “heart” of the work.
Also important in applying the third factor is the nexus between the purpose of the fair use and the portion of the copyrighted work taken. The extent of permissible copying varies with the purpose and character of the use. Taking more of the copyrighted work than is necessary to accomplish the fair user’s salutary purpose will weigh against fair use. In some cases, the fact that the entire work—for example, an image—was needed to accomplish the fair use purpose has led the court to hold that the third factor was neutral, favoring neither the copyright holder nor the putative fair user.
What considerations are relevant in applying the fourth fair use factor—the effect upon the potential market for or value of the copyrighted work?
Use that adversely affects the market for the copyrighted work is less likely to be a fair use. This ties back to the first factor, and the question whether the putative fair use supplants or substitutes for the copyrighted work. The fact that a use results in lost sales to the copyright owner will weigh against fair use. Moreover, courts have instructed that one must look at the likely impact on the market should the use in question become widespread; the fourth factor may weigh against fair use even if little market harm has yet occurred.
This inquiry is not confined to the market for the original, but also takes into account derivative markets. For example, if a novel were made into a movie, the movie might not harm sales of the book—indeed, it might help them—but the harm to the derivative market for movie rights would count against fair use. This principle works in a straightforward way in the case of well-established markets, like the market for movie rights for a novel. But it becomes much more difficult to apply if there is not an established market. Consistent with the statutory language, courts have also looked at whether there is harm to a “potential market” for the copyrighted work. However, if there were deemed to be a “potential market” for every use asserted to be a fair use, then the fourth factor would always favor the copyright owner, since the copyright owner would be harmed by loss of the licensing fee for that use. One way courts have tried to avoid this circularity is by asking whether a market, if not already established, is “reasonable” or likely to be developed by copyright owners. In keeping with this approach, courts have concluded that there is no protectible market for criticism or parody, but have considered evidence of harm to markets under development or viewed as attractive opportunities for copyright owners, such as the market for downloads of songs. In some cases, courts have indicated that the absence of a workable market will tend to favor the fair user on the fourth factor because there is no efficient means to buy permission for the use in question.
This is a difficult and evolving area of the law. We can nevertheless venture a few generalizations: Uses that substitute for the copyrighted work in its original market or an established derivative market generally cause market harm that is cognizable under the fourth factor. Where there is no established market, harm is less likely to be found, but still may be found depending on the facts, especially if the fair use case under the other factors is weak and the “market” in question is under development by copyright owners or obviously attractive commercially. In any case, the Supreme Court has said, market harm is a matter of degree, and the importance of the fourth factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.
How should one weigh the various factors in arriving at a determination whether there is fair use?
The fair use test requires an assessment of all the factors together. The courts have repeatedly emphasized that there are no bright line rules, and that each case must be decided on its own facts. The factors often interact in the analysis. For example, the Supreme Court has stated that the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The more transformative the secondary use, the less likely it is that the secondary use will substitute for the original and cause direct market harm. In reaching a fair use determination, all of the factors should be explored, and the results weighed together, in light of the goal of copyright law to “promote the progress of science and useful arts” (U.S. Const., art. I, § 8, cl. 8).
To understand better how courts have applied the fair use test in different situations, you may find useful the summaries of selected fair use cases at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html. In addition, the U.S. Copyright Office maintains a Fair Use Index, which offers a searchable database of selected judicial decisions involving fair use, together with brief summaries: http://copyright.gov/fair-use/.
How does fair use apply to photocopying of course materials?
Before answering this question, it is worth reiterating that Harvard licenses a vast number of periodicals and other copyrighted works for educational use. If you would like to make copyrighted material available to students for course use, you should find out whether the material is already licensed by Harvard, before wrestling with the question whether fair use applies or seeking permission to reproduce the material. If the material is already licensed, you will be able to establish a link to the resource from the course website, or otherwise furnish students a URL, which will enable them to access the material in electronic form and print a copy for personal use. To find out whether a particular article or other work is available through Harvard’s licensed resources, see http://p.lib.harvard.edu/discovery/journals.html, and for instructions on creating links to those resources, see http://guides.library.harvard.edu/links. Alternatively, a copy of the material you wish to use may be publicly available on the Internet—for example, through Google Scholar or a repository such as SSRN—in which case you may be able to link to it. See generally “What about linking to other material?” above. If the material is not available through Harvard’s licensed resources, and is not otherwise available on the Internet, in some circumstances you may be able to copy and distribute the material for course use under the fair use doctrine.
When the Copyright Act of 1976 was being enacted, there was extensive debate about photocopying of copyrighted material for educational and scholarly purposes. Congress declined to adopt a specific exemption for such photocopying, and instead left this to be addressed under the fair use doctrine. Section 107 provides that, if the traditional criteria are met, fair use can extend to reproduction of copyrighted material for purposes of classroom teaching. The difficulty comes in applying those criteria. Recognizing that difficulty, the House Judiciary Subcommittee urged representatives of copyright owners and educational institutions to work out a set of specific guidelines, and the resulting guidelines were included in the House Report on the Copyright Act of 1976.
Those Guidelines for Classroom Copying can be found at www.unc.edu/~unclng/classroom-guidelines.htm. They are intended as a “safe harbor,” to define certain activities that, at a minimum, will qualify for fair use. The Guidelines set forth requirements for “brevity” (limiting the amount of material that may be copied), “spontaneity” (requiring that there not be time to secure permission between when the decision to copy is made and the copy is used in class), and “cumulative effect” (limiting the aggregate amount of such copying). In addition, the Guidelines contain a number of further restrictions, including that an item may not be copied again by the same teacher for use in a subsequent term. The Guidelines also permit, somewhat more liberally, the making of a single copy of excerpts of a work for use by an instructor in research or teaching. When the Guidelines were agreed to by certain representatives of copyright owners and educational institutions, a number of educational groups dissented, objecting that the rules were unduly narrow, even as a safe harbor, and would constrain the reasonable application of fair use to photocopying of classroom materials.
Two noteworthy cases addressing photocopying of course materials have rejected the fair use defense. In both of those cases, however, the defendant was a commercial copy shop, and the commercial nature of the use figured importantly in the analysis. It is therefore not entirely clear how those precedents bear on copying by a professor or university for non-profit educational purposes. In those cases, the excerpts of the plaintiff’s material contained in the course packs ranged from 14 to 110 pages in length in one case, and from 17 to 95 pages in the other, representing 5% to 25% of the works from which they were taken in one case, and 5% to 30% in the other. In assessing the third fair use factor, both courts found that these amounts weighed against the defendant. Both courts also held that the fourth factor weighed against the defendant, primarily because the plaintiffs had lost permission fees for this copying. On the grounds that a viable licensing market for photocopying of excerpts for inclusion in course packs now exists where it did not in the past, one of these courts distinguished a case from 1972 in which an equally divided Supreme Court had affirmed a decision holding that photocopying of journal articles by the National Library of Medicine constituted fair use.
Looking at these cases and the legislative history of the Copyright Act of 1976, the following are factors that a court might take into account, in the framework of the four factor fair use analysis, in determining whether a given instance of photocopying for course use constituted fair use. Some of the questions bear on more than one of the four statutory factors, which remain the touchstone.
First Factor: Purpose and Character of Use
- Will the material be the subject of significant commentary, criticism, explanation or the like by the instructor? (The more the material functions to illustrate, support or enable the new meaning or message delivered by the instructor—as opposed to functioning mainly as material for students to engage in its own right—the more likely its reproduction and distribution for course use will qualify as “transformative” in the sense described above and hence favor a finding of fair use.)
- Is the copied material integral to the nonprofit educational purpose of the course? For example, is the material important to a lecture or classroom discussion? (Even if the use is not “transformative,” use for a nonprofit educational purpose will weigh in favor of fair use.)
- Is the copyrighted material recently published (for example, in a newspaper), or is the instructor inspired at the last minute to use the material in class, with the result that there is little or no time to obtain permission? (An affirmative answer will weigh in favor of fair use.)
- Are copies distributed to anyone other than students in the course who need one? (Distribution to others could weigh against a finding that the use is for a nonprofit educational purpose. Unless there is a compelling educational reason to do otherwise, materials copied in reliance on fair use should be restricted to enrolled students.)
- Are students being charged for the copies? If so, does the charge have any profit component, or does it only recover costs? (Copying and distribution of a commercial nature will weigh against fair use.)
Second Factor: Nature of the Work
- Is the copyrighted material published or unpublished? (Unpublished works have traditionally been accorded stronger copyright protection than published works.)
- Is the copyrighted material factual in nature or creative? (More fair use latitude is accorded to factual works.)
- Is the copyrighted material readily available for purchase? Is it in print or out of print? (The fact that a work is out of print and unavailable for purchase through normal channels will favor fair use copying for educational purposes, though this may be mitigated if permission to photocopy may readily be purchased.)
- Was the copyrighted material prepared primarily for the higher educational market—e.g., a textbook? (Fair use is likely to be more restricted for such material, since photocopying it is more likely to harm the market for it than would be true if the original were aimed primarily at a different market.)
Third Factor: Amount Copied
- How much of the copyrighted work is being copied? How long is the portion copied and what percentage of the work does it represent? (The smaller the portion, the more likely the copying will qualify as fair use. Generally, a strong showing on the other factors will be needed to justify copying more than one chapter of a book, or one article from a periodical or newspaper, or one short story, short essay or short poem, or other similarly small parts of a work.)
- Is the portion copied the “heart” of the work? (Even a quantitatively small portion of a work may weigh against fair use if it is the most important or commercially valuable part of it.)
- Is the amount copied limited to that which is necessary for the educational purpose to which it is being put? (You should copy no more than is necessary for the educational purpose.)
Fourth Factor: Effect on the Market
- Will the photocopying result in lost sales of copies of the copyrighted work? (Copying that substitutes for sales of the copied work will weigh significantly against a finding of fair use.)
- Can permission to photocopy the material in question readily be purchased through the CopyrightClearanceCenter (the “CCC”) or another efficient licensing mechanism, such as the publisher? (Even if the copying will not supplant sales of the entire work, the market for the work may nonetheless be harmed if there is an efficient mechanism for buying copies of the excerpt you want or for buying permission to copy the excerpt. Whether this market harm, if present, will tip the overall determination against a finding of fair use depends on how the other fair use factors weigh in the particular situation. The economic significance to the publisher of permission fees, as compared to revenues from book sales, may also weigh in the analysis.)
- Is it difficult or perhaps impossible to locate the copyright holder or are there other significant obstacles to seeking permission? Is the expense of seeking permission greater than the value of the permission sought? (Where there is no cost-effective way to obtain permission, that fact will weigh in favor of a finding of fair use, which can be seen in part as a means for remedying market failure.)
- Does the University, or other person making the copy, own a lawfully acquired or purchased copy of the work? (A negative answer will weigh against fair use.)
- Is the price of permission prohibitive—i.e., so high that the instructor would reasonably forego educational use of the material in question rather than pay it? (If so, the societal value of the educational use may tend to counter the potential harm to the market for the work in proceeding without buying permission.)
Other Considerations Bearing on Various of the Factors
- Is any copyright notice on the original reproduced on the photocopy? (You should reproduce the copyright notice, so that users know the work is in copyright and where to start in seeking permission for subsequent uses, and should include appropriate citation or attribution to the source.)
- Is this the first time this instructor has photocopied this excerpt for course use, or has photocopying of the same material been repeated from term to term without permission? (Some people assume that “the first use is fair.” This is incorrect. Each use – whether it is the instructor’s first use or a later use – ought to be evaluated on its own merits.)
- How extensive is the reliance on fair use in providing materials for this course? Is the copied material supplementing other copyrighted materials purchased or licensed for use in the course, rather than replacing such materials? (Copying that fills out a reading list of purchased or licensed materials—for example, to bring a subject up to date or supply missing pieces—may be more likely to qualify as fair use than copying that substitutes altogether for materials that are purchased or for which a license or permission has been acquired.)
You also will find some further guidance on these issues under the question that follows (How does fair use apply to use of third-party material on a course website?).
As is evident from this discussion, the law in this area is difficult to apply. Outside of the limited Classroom Guidelines, it is hard to know with certainty when fair use applies to photocopying for course use. In view of this uncertainty and the need for relatively simple administrative procedures, a number of units at Harvard have adopted specific rules and practices to ensure copyright compliance in connection with photocopying. Whenever dealing with those units, you should follow their rules and practices. In other situations, if you wish to make photocopies for course use without obtaining permission from the copyright owner, you should have a good faith reasonable belief that the copying qualifies as fair use.
How does fair use apply to use of third-party materials on a course website?
The basic considerations that bear on the use of copyrighted material on a course website are similar to those discussed above concerning photocopying. The questions discussed above are generally relevant and provide a good starting point. But the difference in the medium—a digital network rather than hard copies—and the fact that more kinds of content can readily be provided via a website—audiovisual works, music and color images, for example, in addition to text—alter the application of the four fair use factors in various ways.
Litigation by Cambridge University Press and other publishers against Georgia State University illustrates some of the issues and analytical challenges in this area. In that suit, the publishers claimed that GSU's policy allowing professors to make digital copies of excerpts from the publishers’ research-based monographs infringed copyright. The excerpts were made available through GSU’s electronic reserves system to students enrolled in courses for which the readings were assigned, thus functioning much like an online course pack. The lower court found five instances of infringement, 43 instances in which fair use applied, and 26 instances in which the publishers failed to demonstrate ownership of the copyright. The 11th Circuit Court of Appeals reversed, rejecting the lower court’s analytic framework on various points, and sent the case back to the lower court for further proceedings.
The majority opinion in the Court of Appeals decision held among other things that:
- While GSU’s use of the excerpts was not transformative, the nonprofit educational nature of the use tipped the first factor in favor of fair use.
- The lower court erred in holding that the second factor always favored GSU, because, though the works were informational in nature, they also contained evaluative and subjectively descriptive material. The lower court should have evaluated each work. However, the Court of Appeals also noted that the second factor is of relatively little importance in this case.
- The lower court’s bright line test, under which the third factor turned on whether GSU copied more than 10% of the pages or one chapter (if less than 10%) of the book, failed to properly analyze each work individually. The appellate court set forth the following test, which is much harder to apply: “The District Court should have analyzed each instance of alleged copying individually, considering the quantity and the quality of the material taken – including whether the material taken constituted the heart of the work – and whether that taking was excessive in light of the educational purpose of the use and the threat of market substitution.”
- The lower court properly concluded that where the publishers failed to show that a digital license was available, the fourth factor favored GSU, and vice versa. However, the lower court erred in not giving the fourth factor more weight in the overall fair use calculus, because GSU’s copying was non-transformative and the threat of market substitution was therefore serious. In the appellate court’s view, the central question under the fourth fair use factor was “whether defendants’ use – taking into account the damage that might occur if ‘everybody did it’ – would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing defendants’ incentive to publish the work” (emphasis in original). Unfortunately, this determination may be difficult for a prospective educational user of an excerpt to make.
On remand, in a 213 page opinion, the lower court reanalyzed each of the 48 instances of claimed infringement in light of the Court of Appeals’ direction. This time around, it found seven instances of infringement and 41 instances of fair use. Since the first factor always favored fair use, and the second factor was accorded relatively little weight, the analysis turned largely on the third and fourth factors.
Where the court found that the third factor favored fair use, the instructor generally had used no more than one chapter and the amount used was fewer than 50 pages (in most cases fewer than 40 pages) and less than 10% of the work. There were only a few exceptions. Use of more than one chapter was held to favor fair use on the third factor in only four of 13 instances, and in each case less than 5% of the work was used. Use of one chapter or less was held to favor fair use in all but two cases. In those two cases, more than 10% of the work was taken. In the few cases where the court found that the excerpt taken was the “heart of the work,” this helped tip the third factor against fair use. Taking an excerpt consisting of less than a whole chapter was viewed more favorably under the third factor than use of a whole chapter.
The fourth factor favored fair use in a significant number of instances because the publisher had not made a digital license available for the work in question. Where such a license was available, either through the Copyright Clearance Center or the publisher, the fourth factor was presumed to disfavor fair use. However, in a number of cases GSU was nonetheless able to prevail on the fourth factor by showing that digital license fees constituted only a very small portion of the publisher’s overall revenue from the work, including book sales. The loss of those fees, even if “everybody did it,” was therefore deemed unlikely to affect the publisher’s incentive to publish. Evaluating the potential economic harm of a non-transformative use in light of the publisher’s incentive to publish (or the author’s incentive to write), as the Court of Appeals directed, makes sense in theory. But it is hard to apply in practice outside litigation, since the potential fair user typically will have limited insight into the publisher’s finances.
Are there practical lessons from this case, which may yet have another bounce? Here are a few thoughts:
- Taking no more than one chapter of a book will not assure that the third factor favors fair use, and vice versa, but it is a good starting point gauge. Be especially careful in your fair use analysis if you take more than one chapter, or if the excerpt consists of more than 50 pages or 10% of the work, or if you are taking the “heart of the work.”
- In all cases, limit the size of the excerpt to the amount needed for the pedagogical purpose. Use less than a whole chapter if that will suffice.
- If a license to use the excerpt you want cannot readily be purchased from the copyright holder or the Copyright Clearance Center, the risk of infringement is significantly reduced.
- If such a license is available, much will turn on the nature of the work, the size of the excerpt taken, the manner in which it is used (including how transformatively it is used), and the likely economic impact of not paying the license fee on the copyright holder and on the incentive to create and distribute such works.
When you apply the fair use factors to multimedia content, the analysis is likely to differ in some ways from the analysis of textual materials above. Taking images, for example, there may be two different copyrights in an image—one in the underlying work of art and the other in the photograph—that need to be considered, though it is sometimes difficult or impossible to identify the photographer; you typically need to use the entire image to achieve your educational purpose, and courts have recognized that copying the entirety of an image where necessary for a legitimate fair use purpose will not weigh against a fair use finding; there is a longstanding tradition in higher education of making slides from art reproductions in periodicals, exhibition catalogs and books for teaching and study; there is no centralized and efficient mechanism for licensing educational images that is analogous to the CCC in the case of text; and the reproductions made for educational use on a course website are typically lower in resolution and quality than the images that copyright holders sell or license for publication, thus reducing the likelihood that a digitized image will harm an existing market.
In recent years, a number of fair use “best practice” guides have been promulgated. Though they have been developed primarily by user communities, and may not be fully accepted by copyright owners, the guides are another useful point of reference. Various guides can be found on the website of the Center for Media & Social Impact: http://www.cmsimpact.org/fair-use/best-practices. See, for example, the Code of Best Practices in Fair Use for the Visual Arts and the Code of Best Practices in Fair Use for Academic and Research Libraries.
The following are some general measures that, while not substituting for the four factor fair use test, will tend to assist a finding of fair use when copyrighted material is made available on a course website:
- Use others’ copyrighted material in your course website only if the material is integral to the course curriculum.
- Include your own comments, criticism and explanation, or otherwise make your use of the copyrighted material transformative.
- Use only a limited portion of others’ copyrighted material, and only what is necessary for your educational purpose.
- Be wary of using others’ copyrighted material that is produced in digital form primarily for instructional use, or where your use would reasonably be expected to harm the market for the analog version of the material.
- Consider whether a license (permission) allowing the educational use of the material that you wish to make can readily be purchased. If it can, this fact generally will weigh against fair use, though it still may be possible to prevail on fair use depending on the other circumstances (see the preceding discussion).
- Don’t incorporate material in your website in lieu of having students buy books or other such material.
- Limit access to students enrolled in the course and other qualified people (e.g., a professor’s graduate assistants). Assuming access is provided over a network, require a password or PIN.
- Allow access only during the term in which the course is given, and disable student access thereafter.
- Wherever feasible, employ streaming formats and technological limits on copying, retention and further dissemination of the work by students.
- Only incorporate portions from lawfully acquired copies of others’ materials.
- Avoid taking many excerpts or portions from any one work.
- Alter others’ works only where necessary to support specific instructional objectives.
- Credit the sources fully and display the copyright notice from the original.
For each item of copyrighted material you wish to use, make a good faith fair use determination. If you do not reasonably believe your proposed use passes the four factor test, you should obtain permission for the material or should not use it.
What are the rules for performing a musical or literary work, or showing a film or video, in class?
Apart from fair use, the Copyright Act contains a special provision, Section 110(1), that allows teachers to perform or display a copyrighted work, either live or recorded, "in the course of face-to-face teaching activities . . . in a classroom or similar place devoted to instruction." Thus, you can use sound recordings, live performances, readings, films or videotapes, slides or any other performance or display of copyrighted works without restriction and without permission, so long as you are teaching students in a classroom or similar place such as a studio. The only exception is that you may not use a film or videotape that you have reason to believe is an illegally made copy.
Note, however, that this special classroom dispensation applies to performance and display only. It does not authorize making copies. Nor does it appear to enable you to put materials on your web page, even for course use, because it requires that the performance or display occur "in the course of face-to-face teaching . . . in a classroom or similar place devoted to instruction." Similarly, if you wish to videotape a class session in which you have performed or displayed others’ copyrighted material and to transmit the video to remote students (e.g., via streaming), a different set of considerations comes into play. Amended by the TEACH Act in 2002, Section 110(2) of the Copyright Act provides a special exemption for such distance learning activities. The exemption is conditioned on a detailed set of requirements. You can find useful descriptions of the TEACH Act requirements at http://www.ala.org/advocacy/copyright/teachact/distanceeducation. If you cannot meet all of the TEACH Act requirements, you may be able to rely on fair use, if the statutory four factor test is satisfied, or you should obtain permission to use the copyrighted material in the video of your class session.
Copyright and Permissions at Harvard
From time to time, you may run into the following questions about copyright practice at Harvard.
How do I determine whether or not copyright should be in Harvard's name?
There is no fixed rule on whether to affix a copyright notice on something that you write or create where Harvard owns the copyright. (On the question of ownership, see “Who owns the copyright?” above.) If the material is to be published and widely disseminated or publicly available, and if further distribution would be inappropriate without Harvard's permission, you should warn potential infringers by affixing the copyright notice "Copyright [and/or ©] [year] President and Fellows of Harvard College." The "[year]" should be completed with the year in which the current version of the work was first published. This is the all-purpose copyright designation for any Harvard publication on paper, disk or other medium. (Drafts may bear a copyright notice as well, particularly if they are widely distributed.) It is also very useful to append to the copyright notice an indication of the unit at Harvard that administers the copyright, so that people who would like to use the work later will know where to turn for permission. For example, you could add after the copyright notice: “For permission to use this work, contact the Peabody Museum of Archeology and Ethnology at Harvard.”
What happens if I receive a request from someone else to copy or quote from a work that is copyrighted by "President and Fellows of Harvard College"?
There is no central "permissions desk" at Harvard. The decision to grant or deny permission to copy or quote from works copyrighted by Harvard—and the decision whether to charge a fee for the permission—is made by the unit that published the work originally or is now responsible for it. For example, the Peabody Museum of Archeology and Ethnology can grant permission to quote from, or copy portions of, works published under its auspices, and the Office of Admissions and Financial Aid can grant permission for the brochures about Harvard that it distributes.
It is not necessary to consult the Office of the General Counsel on this decision, but we will advise you on the mechanics of it, or on questions in particular cases, if that would be helpful to you.
Do I need permission to use or copy material that has already been copyrighted by Harvard?
You should call the Harvard office that produced the material, and ask permission to do so.
What provisions should I make when retaining an outside vendor to create a work for Harvard (sometimes known as a "work for hire")?
An agreement for the preparation of material to be published by Harvard should always include a provision stating that Harvard will own the copyright. This avoids later disputes over whether Harvard or the individual creator owns the rights to the work.
You can find model forms of Consulting Agreement with appropriate provisions regarding copyright on the Office of the General Counsel website. You should also address this issue if you contract with students concerning creation of copyrighted works.
If I am using a commercial computer program for my work, can I make a copy for a colleague, or a copy for my computer at home so that I can work there?
No, unless the license allows it. A computer program that is copyrighted (and virtually all commercially available programs are copyrighted) can be used only according to the terms of the license that is purchased, and much off-the-shelf software is limited to use on one computer. Unless the license specifically provides otherwise, such programs may not be copied, no matter how legitimate the need for its use elsewhere.
The solution in most instances is to purchase a license that specifically authorizes the program to be used on more than one computer, either individually or through a server. Site licenses are generally less expensive than multiple purchases of individual programs, and home or laptop computers can be included if the vendor agrees. Harvard University Information Technology (HUIT) may be able to provide information on Harvard's site licenses.
Harvard University's firm policy is that no program is to be copied or used except as specifically allowed by the terms of its license. Those who violate this policy may be personally liable for infringement.
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We hope that this guide answers some of your questions about copyright and fair use. By its nature, this guide provides a general, and necessarily limited, discussion of various topics; it does not purport to give specific legal advice. The Office of the General Counsel advises Harvard and its faculty and staff on specific copyright questions and on other legal concerns that may arise in their work for the University. Please let us know how we can be helpful to you. You can reach us at 495-1280.
Please also be aware that the Harvard Library’s Office for Scholarly Communication coordinates a group of “Copyright First Responders” who may be able to help you with copyright-related inquiries. You can find a member of this group in your Harvard library at https://osc.hul.harvard.edu/programs/copyright/first-responders/.
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
 See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
 See Basic Books, Inc. v. Kinko’s Graphics Corp., 758F.Supp. 1522 (S.D.N.Y.1991), and Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir.1996).
 See Cambridge University Press v. Becker, 863 F.Supp.2d 1190 (N.D.Ga.2012).
 See Cambridge University Press v. Patton, 769 F.3d 1232 (11thCir.2014).
 You normally need not be concerned about a second level of copyright in a photograph of a two- dimensional work of art, since a federal district court has held that a photograph that aims to reproduce a painting faithfully lacks sufficient originality to qualify for copyright protection.