The Catholic University of America

Of Counsel - A Bulletin on Legal Issues at CUA - August 1999

Cyberspace

Copyright

Copyright law generally gives authors, artists, composers and other such creators the exclusive right to copy, distribute, modify, and display their works or to authorize other people to do so. Moreover, their works are protected by copyright law from the very moment that they are created - regardless of whether they are registered with the Copyright Office and regardless of whether they are marked with a copyright notice or symbol ©. That means that virtually every e-mail message, Web page, or other computer work you have ever created - or seen - is copyrighted. That also means that, if you are not the copyright owner of a particular e-mail message, Web page, or other computer work, you may not copy, distribute, modify or display it unless:

  • its copyright owner has given you permission to do so;
  • it is in the "public domain";
  • doing so would constitute "fair use"; or
  • you have an "implied license" to do so.

If none of these exceptions (defined below) apply, your use of the work constitutes copyright infringement, and you could be liable for as much as $100,000 in damages for each use.

Permission

It is usually easy to tell whether you have permission to make a particular use of a work. The copyright owner will have told you so expressly, either in writing or orally.

It is not always so easy to tell whether the work is in the public domain or whether what you want to do constitutes fair use or is covered by an implied license.

Public Domain

Generally speaking, a work is in the public domain only if (a) its creator has expressly disclaimed any copyright interest in the work, or (b) it was created by the federal government, or (c) the copyright has expired.

The Copyright Term Extension Act of 1998 lengthened the term of copyright to life of the author plus 70 years, and for corporate, anonymous, or pseudonymous works, 95 years from the year of first publication, or 120 years from the year of creation, whichever is first. To determine when a work passes into the public domain, see the chart created by Lolly Gasaway at the University of North Carolina. If you do not know for sure that a work is in the public domain, it is best to assume that it is not.

Fair Use

In very general terms, a particular use of a work is "fair" if it involves only a relatively small portion of the work, is for educational or other noncommercial purposes, and is unlikely to interfere with the copyright owner's ability to market the original work. Like borrowing a book from the library, you may print or download a single copy of a Web page, listserv, or private e-mail message for your own personal, noncommercial use.

A classic example of fair use is quoting a few sentences or paragraphs of a book in a class paper. Other uses may also be fair, but it is almost never fair to use an entire work, and it is not enough that you are not charging anyone for your particular use. It also is not enough simply to cite your source (though it may be plagiarism if you do not).

Implied License

An implied license may exist if the copyright owner has acted in such a way that it is reasonable for you to assume that you may make a particular use. For example, if you are the moderator of a mailing list and someone sends you a message for that list, it is reasonable to assume that you may post the message to the list, even if its author did not expressly say that you may do so. The copyright owner can always "revoke" an implied license, simply by saying that further use is prohibited.

Facts and ideas cannot be copyrighted. Copyright law protects only the expression of the creator's idea - the specific words or notes or brushstrokes or computer code that the creator used - and not the underlying idea itself. Thus, for example, it is not copyright infringement to state in a history paper that the Declaration of Independence was actually signed on August 2,1776, or to argue in an English paper that Francis Bacon is the real author of Shakespeare's plays, even though someone else has already done so, as long as you use your own words. However, if you do not cite your sources, it may still be plagiarism even if you paraphrase.






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