Much of the material used in teaching is copyrighted, including computer software, books, music and photographs. Thus, copyright law restricts our rights to copy, display, perform and distribute these works without permission. Often we must obtain permission from the copyright owner to use the works. Sometimes, a work is in the public domain, available for all to use freely or our use is a "fair use," allowing us to use the works without the copyright owner's permission. Each of these situations is discussed separately, below.
Clearance of copyrights can often be complicated and frustrating. It is necessary, nonetheless, as the potential liability can be significant. For example, the Copyright Act allows courts to award statutory damages up to $150,000 per work infringed for willful infringement. 17 U.S.C. § 504. In addition, you may be contributorily liable if your actions assist in others' infringement. For example, if you post a copyrighted work on a web site, you may be contributorily liable for each person who copies the work off the site.
What is a copyrightable work?
A work is copyrightable if it is an original work of authorship fixed in a tangible medium of expression. The copyright is created at the moment of fixation. For example, copyrights exist from the time a poem leaves the poet's mind and is written down on paper. Neither registration nor a copyright notice (for works published after 1989) is required for copyright protection. Categories of copyrightable works include:
- Literary works
- Musical works, including accompanying words
- Dramatic works, including accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Copyright does not protect ideas, principles, concepts or discoveries. 17 U.S.C. § 102. Copyright also does not protect the following:
- Titles, short phrases or slogans
- Works not fixed in a tangible medium of expression, such as improvisational speeches that are not written down or recorded
- Works containing no original authorship, such as standard calendars and height and weight charts
What is a copyright?
A copyright gives its owner the exclusive right to copy the work, prepare derivative works based on the work and distribute the work via sale or other transfer of ownership or via rental, lease or lending. In addition, certain categories of copyrightable works have additional rights, such as public display and performance. For example, the exclusive right to perform the work publicly is included in the copyright for literary, musical, dramatic, choreographic, pantomimes, motion pictures and other audiovisual works. Similarly, the exclusive right to publicly display is included in copyrights for literary, pictorial, graphic, sculptural, musical, dramatic, choreographic works and pantomimes. Moreover, the copyright in a sound recording includes the exclusive right to perform the work publicly by means of a digital audio transmission, such as the transmission of a song over the Internet. 17 U.S.C. § 106.
Each "copy" "right" (the right to copy, distribute, etc.) in a single work is a separate right and may be owned by different entities. In addition, multiple copyrightable works may exist in one "work." For example, a song you hear on the radio has three separate underlying copyrightable works: the sound recording (often owned by the studio); the musical score (often owned by the artist); and the lyrics (often owned by the author). The copyright in all three works must be separately cleared.
What are derivative works?
A derivative work is a work based upon one or more pre-existing works, such as a translation of a text or a movie based upon a novel.
What are moral rights?
Authors of works of visual art may also have "moral rights." A work of visual art is a painting, drawing, print, or sculpture that exists in a single copy or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. A photograph may also be a work of visual art if it was produced for exhibition purposes only and exists in a single copy signed by the author or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. Certain works, such as works for hire and advertisements, are excluded from the special "moral rights" protections.
Moral rights allow authors of visual art to control the use of their names and to prevent intentional distortion, mutilation or other modification of their works that would be prejudicial to their honor or reputation and to prevent the destruction of a work of recognized stature. 17 U.S.C. § 106A.
Are digital works covered by copyright?
Copyright covers works in both traditional and newer media, including digital media. In 2000, Congress passed the Digital Millennium Copyright Act ("DMCA"), which addresses the use of copyrighted works in digital media. It both provides additional protections for copyright owners and "safe harbors" for certain users of copyrighted material.
The DMCA prohibits the removal or alteration of copyright management information, which is the data authors include in their works to protect their copyright interests. Copyright management information includes the title of the work, the author of the work, the copyright owner of the work, and terms and conditions for use of the work. 17 U.S.C. § 1202.
The DMCA also prohibits the circumvention of copyright protection systems. Circumvention of a copyright protection system means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner. Nonprofit libraries, archives and educational institutions are allowed to circumvent protection systems in limited circumstances, including encryption research and to determine whether to acquire a copy of the protected work. As much of this law is continuously changing, faculty and staff should not undertake such activity without first contacting the Office of General Counsel at 480-731-8878. 17 U.S.C. §1201.
The DMCA also provides protection for entities that serve as conduits of communication, such as service providers and search engines. 17 U.S.C. § 512. MCCCD believes it is a service provider under the Act. Accordingly, MCCCD has registered its DMCA agent with the Copyright Office and has posted a DMCA Notice on its website.
Also note that digitizing a work may be an infringement. You should not digitize a copyrighted work unless you have specific permission to do so or you believe digitization fits within fair use. Permission to use or copy the work may not include the right to digitize the work. When considering if digitization is a fair use, always check to see if a digital copy of the work is available for a reasonable fee. If so, you should purchase or license the digital copy rather than digitizing the analog/paper copy you currently possess.
Page Updated 05/20/14