Copyright exists for three basic reasons: to reward authors for their original works; to encourage availability of the works to the public; and to facilitate access and use of copyrighted works by the public for certain instances. The first copyright law was enacted in 1790, and four major revisions have followed. The most recent was the 1976 revision of the 1909 law. In 1995, the law again received attention because, according to some critics, technological advances seem to make it outdated. It is often asked whether the old Copyright Law applies to today's environment. Congressional committees and professional groups are asking a range of questions and examining possible solutions.

• Copyright law in the United States derived both from the Statute of Anne and from the common law. During the colonial period, copyright law was administered by the British Empire and was federal in form. That pattern changed after the colonies broke with England. All of the colonies, except Delaware passed laws protecting the creative works of authors. In May of 1787 were the Constitution was drafted, intellectual property was addressed as follows (and is stated in our 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 rights to their respective writings and discoveries.

This provision empowers the Congress to control patent and copyright by enacting laws. In keeping with the Statute of Anne, the granting of rights is viewed as constitutional only if limited to a number of years. Under the authority of the Constitution, copyright laws became almost purely federal. The Congress enacted a series of copyright acts, first in 1790, with general revisions following in 1831, 1870, 1909, and 1976.

A huge revision of the U.S. Copyright Act was finished in 1909. Some of the improvements this revision allowed were: (a) an extension of the number of years in a renewal term from 14 to 28, with the result that copyright protection could be granted for a total of 56 years; (b) making certificate of registration prima facie evidence of the facts recorded in relation to any work; (c) exempting foreign works in the original language from the need to be reprinted in the United States.

The 1909 Act expressly protected published works by a term of years in which authors enjoyed exclusive rights. Federal courts gave directives that federal law preempted state law in suits brought up concerning the infringement of published works, but a presumptions arose that unpublished works belonged to the author in perpetuity and were defensible under a states' common law of property. This idea became known as common law copyright. Section 301 of the 1976 Act preempted common law copyright almost completely.

"Copyright is a form of protection provided by the laws of the United States to the authors of 'original works of authorship' including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 (link) of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the copyrighted work in copies or phonorecords;

• To prepare derivative works based upon the copyrighted work;

• To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

• To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual works, and

• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission."

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

Copyright protection is afforded to "original works of authorship" that are part of a tangible form of expression. The categories for copyright include:

•literary works

•musical works, including any accompanying words

•dramatic works, including any accompanying music

•pantomimes and choreographic works

•pictorial, graphic, and sculptural works

•motion pictures and other audiovisual works

•sound recordings

•architectural works

Some works are not protected under United States copyright law. They include:

•works that have not been fixed in a tangible form of expression, (for example choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded).

•Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listing of ingredients or contents.

•Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation or illustration.

•Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

It is not necessary to register in the Copyright Office to get a copyright. A copyright is automatic as soon as the work is created and when it is put into a fixed form. Ongoing works are copyrighted when the work is first put into a fixed form.

Works no longer have to be published to be copyrighted. The Copyright Act of 1909 required a publication before a copyright was granted. The 1976 Copyright Act defines publication as follows:

"Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication".

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

United States law does not require the use of copyright notice, but it can be helpful. Prior law to the Berne Convention did require notice, therefore, older works will bear a notice of copyright. The no notification law became effective on March 1, 1989. The copyright notice identifies the copyright owner, shows that it is protected by copyright, and lists the year of first publication. "In the event that a work infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages except as provided in section 504 of the copyright code."

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

It is the responsibility of the creator of the work to indicate copyright information on the work.

Form of Notice of Visually Perceptible Copies

The notice for visually perceptible copies should contain all of the following three elements:

1. The symbol © (the letter 'c' in a circle) or the word 'Copyright' or the abbreviation 'Copr.'; and

2. The year of first publication of the work.

3. The name of the owner of copyright." Example: ©1999 Suzie Webpage, except as provided in section 504 of the copyright code."

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

Form of Notice for Phonorecords of Sound Recording

"The notice for phonorecords embodying a sound recording should contain all of the following three elements:

1. The symbol (the letter 'P' in a circle);

2. The year of first publication of the sound recording;

3. The name of the owner of copyright."

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

Length of copyright protection

A work that is created on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus fifty years after the author's death. In the case of a joint work prepared by two or more authors who did not work for hire, the term lasts for 50 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works, the duration of copyright will be 75 years from the publication or 100 years from the creation, whichever is shorter.

Works are registered through the Library of Congress Copyright Office in Washington, D.C. There is a $20 filing fee for each application. The author of a work, a copyright claimant, the owner of exclusive rights, or an authorized agent of the author can register a copyright.

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

The Copyright Revision Act provides a variety of remedies to the copyright holder in the event of infringement. However, it also provides some relief to educators who unknowingly infringe upon a copyright believing the use to be fair.

The awards to a copyright owner can be substantial: $500 to $20,000 per work infringed upon and up to $100,000 in cases of willful, or knowledgeable infringement. If the defendant is able to prove that the infringement was innocent, the damages may be reduced to $200 per work infringed upon. In cases where the defendants are nonprofit libraries, their employees, or other nonprofit educational institutions, such damages may not be levied by the court if there was honest belief and reasonable grounds to consider the use of copyrighted works as "fair use" as described in Section 107.

Some remedies that libraries and educational institutions can use to ensure compliance with the law include:

• applying the fair use factors
• applying the educational and library exemptions
• seeking permission and retaining records

In the case of an alleged infringement, the librarian or teacher who requested that copies be made, and the school district, university, even the equipment operators may also be named in a lawsuit. In fact, anyone who had something to do, even remotely, with the alleged infringement may be named. The person who does the infringement is the prime offender. Thus, copyright policies are extremely important for protection and clarification of responsibilities.

The legislative history of the Copyright Act provides teachers and librarians with guidelines as to the fair use of copyrighted materials photocopied from books and periodicals for classroom use. The guidelines provide a minimum. Copying for classroom use that exceeds the guidelines may also be justified in special circumstances under the fair use rubric. The guidelines have three standards: brevity, spontaneity, and cumulative effect. The following guidelines are printed in the Report of the House Committee on the Judiciary (HR 94-1476).

People have commented that the 1976 Copyright Act, its amendments, and interpretations have not kept pace with changing technologies. The Act was written to be technologically encompassing, as stated below in Section 102:

Copyright protection subsists.....in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either or with the aid of a machine or device.

Users must exercise judgment based on an understanding of the Copyright Law. Educators should pay close attention to Sections 106, 107, and 110.

Individuals who use the Internet and other networks constantly find ideas and information they can use. It is quite easy to collect, compile, and modify information from the searches that confusion concerning copyright is certain. Not only can users find local information easily, but they are able to search international sources, too. Users can share the information by simply typing the URL. The ease with which images can be digitized, changed, and then transmitted also lends to some complicated situations.

New technologies that permit digital copying or conversions are pervasive. A new dilemma faces educators in that digitizing or scanning materials for preservation, sharing, space conservation, and convenience is a very attractive possibility; however, the result is "copying". Many legal experts say that scanning or digitizing is not legal in most instances. The Association of American Publishers issues a report in 1994 stating that digitizing of copyrighted materials was not permissible without permission. The information highway brings new challenges to the copyright equation. Gasaway, Jensen, and Oakley, three attorneys who are also law library directors and professors, have written extensively on copyright and related electronic issues facing educators. Emerging and existing technologies make it easy to copy, manipulate, change, and store copyrighted information so that the lines of fair use become blurry for educators and students. There is a misconception among many educators that anything may be copied for educational usage or archival purposes, and this is not true. A simple test posing three questions provides guidance:

1. Would I perform this use with print media in this setting?

2. Am I doing something to prevent purchase, lease, or licensing?

3. Do I hope I will not get caught?

An affirmative answer to any of these questions can mean that the activity is questionable. The copyright owner, not the purchaser, of a work holds several exclusive rights that are listed in Section 106 of the law. Owning a legal copy of a program is not the same as owning the copyright rights to the program. The purchaser as acquiring a copy of the program to use on a machine, not the right to do anything with it that interferes with the copyright owner's exclusive rights. One can always request formal permission to use a copyrighted work in ways that may exceed fair use or other provisions. Often, permission is granted free or for a reasonable fee.

In 1980, Section 117 of the law was amended by Public Law 96-517 to define two instances where duplication of a copyrighted computer program would be permissible. The first instance is where creation of a copy is an essential step in allowing the software to run on a certain computer. The second instance permits making a copy for archival purposes only (backup copy). An archival copy is to be stored in case the original fails to run, and it is not to be used as a second copy of the program. Any copies made under these conditions must not be sold, leased, or transferred without permission from the copyright owner unless the entire set is disposed of at once. Placing a copy of a program on a hard disk drive would be considered legal, and the original disks become the archival copy.

There are still users who believe that anything available over the Internet is fair game and public domain. They think that because the information is there and easy to manipulate, it has no copyright protection. Such is not the case. For example, FPG International, a stock photo house, sued Newsday for $1.2 million for the alteration and use of a stock photo on the cover of the magazine without the permission of FPG International. The availability of electronic networks and popularity of the global Internet lead to very challenging copyright questions and considerations. Individuals who use the Internet and other networks constantly find ideas and information they can use. It is so easy to collect, compile, and modify information from the searches that confusion concerning copyright is inevitable. Not only can users find local information easily, but they are able to search international sources as well. Users can share the information by simply keying in an address. The ease with which images can be digitized, changed, and then transmitted also leads to some complicated situations. Users can download images, e-mail them to another site, then combine them with other images, which can result in a new "work".

There are still users who believe that anything available over the Internet is fair game and public domain. They think that because the information is there and easy to manipulate, it has no copyright protection. Such is not the case. Copyright protection exists from the moment of creation and fixation in a tangible manner. This is true regardless of what source the information comes from, miscellaneous networks, the Internet, or other ways, unless notice is posted otherwise.

There is no such thing as an "international copyright" that will automatically protect an author's writings throughout the entire world. Most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international treaties and conventions. The recognition of the increasingly global nature of copyright forced the United States to reexamine its position on the primary European copyright treaty, the Berne Convention.

The Berne Convention, which convened in 1886, was the outcome of three prior meetings of the Swiss Federal Council. The Convention was a diplomatic joinder of European nations seeking to establish a mutually satisfactory uniform copyright law to replace the need for separate registration in every country.

There were five purposes of the Convention:

1. To develop copyright law favoring authors in all civilized countries.

2. To eliminate reciprocity among nations as the basis of multinational copyright protection.

3. To end discriminatory practices by nations as the basis of local author over a foreign author.

4. To abolish the formalities of registration and deposit as prerequisites to copyright protection.

5. To promote uniform international legislation for the protection of literary and artistic property.

The Berne Convention has been revised five times and has had two significant amendments. The United States became a Berne signatory in the 1980s and implemented the treaty into its statutory law through the Berne Implementation Act of 1988.

An author who wishes copyright protection for his or her work in a particular country should first determine the extent of protection available to works of foreign authors in that country. There are some countries that offer little or no copyright protection to any foreign works. It is advisable to consult an expert familiar with foreign copyright laws. The United States Copyright Office is not permitted to recommend agents or attorneys or to give legal advice on foreign laws.

Library of Congress [http://lcweb.loc.gov/copyright/circs/circ1.html#wci] (March 1999)

The World Intellectual Property Organization (WIPO) is an intergovernmental organization with headquarters in Geneva, Switzerland. It is part of the United Nations system of organizations. It began on July 14, 1967. "WIPO is responsible for the promotion of the protection of intellectual property throughout the world through cooperation among States, and for administration of various multilateral treaties dealing with the legal and administrative aspects for intellectual property." As of August 1998, there were over 170 States who had membership in this organization.

World Intellectual Property Organization [http://www.wipo.org/eng/] (March 1999)

WIPO defines works that are copyrightable as "literary and artistic works". It states that "practically all national copyright laws provide for the protection of the following types of works:

• literary works
• musical works
• choreographic works
• artistic works
• maps and technical drawings
• photographic works
• audiovisual works"

World Intellectual Property Organization, [http://www.wipo.org/eng/], (March 1999)

Copyright is given to the author of the work, with some exceptions. WIPO states that copyright protection begins as soon as the work is created. Like United States law, international copyright has time limits. Most countries end a copyright fifty years after the death of the author.

"The laws of a State relating to copyright are generally concerned only with acts accomplished or committed in the State itself. Consequently, they can not provide for the protection of the State's citizens in another State. It was in order to guarantee protection in foreign States for their own citizens that, in 1886, ten States established the International Union for the Protection of Literary and Artistic Works by signing the Berne Convention for the Protection of Literary and Artistic Works. Today, its membership is more than ten times larger.

World Intellectual Property Organization, [http://www.wipo.org/eng/], (March 1999)

At the end of October 1998, President Clinton signed into law H.R. 2281, the Digital Millennium Copyright Act. The law institutes two international copyright treaties negotiated through WIPO: the WIPO Copyright Treaty and WIPO Performances and Phonograph Treaty. These two treaties require the States who signed it to punish anyone who evaded technologies "designed to prevent unauthorized copying of copyrighted works, such as using 'black boxes' to descramble audiovisual signals, hacking into Web sites that charge for viewing, and bypassing technologies that prevent unauthorized copies of videotapes.

Washburn University School of Law, [http://www.washlaw.edu/cgi-bin/webglimpse/home/], (March 1999)

Title I of this law recognizes that technologies are evolving rapidly and that the statute may have unintended and undesirable effects. Section 1201 of the law states "no person shall circumvent a technological measure that effectively controls access to a work protected by the Copyright Act." It also prohibits "manufacturing, importing, offering and providing technology primarily designed or intended to circumvent such access control technology."

Washburn University School of Law. http://www.washlaw.edu/cgi-bin/webglimpse/home/ (March 1999)

Title II of the law adds a new section (512) to the Copyright Act that is designed to limit the liability of Internet service providers. This law states that "the service provided is not liable for automatically transmitting third-party materials in response to users' requests."

Washburn University School of Law, [http://www.washlaw.edu/cgi-bin/webglimpse/home/], (March 1999)

They are furthermore not liable for innocently storing information on their systems at users' direction or referring or linking users to infringing sites by providing directories, indexes, and hypertext links to such sites. Subsection 512(e) limits colleges and university service providers' liabilities for infringements by faculty and graduate students and limits service providers' liability for taking down or disabling access to material reasonably claimed to be infringing.

Title III of the law states that "lawful owners or lessees of computers may authorize their parties to activate the machine so that the hardware can be services." It ensures that temporarily copying computer programs into RAM for purposes of repair does not infringe.

Washburn University School of Law,[http://www.washlaw.edu/cgi-bin/webglimpse/home/], (March 1999)

The copyright environment will continue to need clarification and guidelines as changes driven by information needs, digital issues, and technology increase. Educators can follow a few suggestions in order to stay current and comply with the law. These items follow:

1. Become familiar with copyright basics through documents from the Copyright Office.

2. Use the rights and privileges that are currently provided in the law and its interpretations.

3. Make sure that copyright policies in schools and universities are written, adopted, followed, and periodically reviewed.

4. Remember that one can always ask for permission beyond what is provided.

Below are selected court cases that could provide insight into copyright interpretations.

Basic Books Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)

Kinko's was sued by eight major New York publishing houses for copying and selling for profit substantial excerpts from copyrighted books. Kinko's had copied the materials without permission for inclusion in course packets designed by professors and purchased by college students. The court found that Kinko's could not claim fair use for the copying, nor could Kinko's apply the classroom guidelines to its packets. In the settlement, Kinko's paid in excess of $1.8 million in attorneys' fees and damages to the publishers.

Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983)

For class use, a teacher reproduced substantial portions of Marcus's copyrighted booklet on cake decorating with no acknowledgment or permission. The court found that this action could not be considered fair use.

Playboy Enterprises Inc. v. Frena, 839 F. Supp. 152 (M.D. Fla., 1993)

A digitized image of a photograph, whose copyright was owned by Playboy Enterprises, Inc., was uploaded to an electronic bulletin board system by a subscriber and downloaded by another subscriber. A court decision interpreted these acts as affecting the copyright owner's distribution right.

References:

Bagatell, Dan L., "A Summary of the New Digital Millennium Copyright Act",[http://www.washlaw.edu/cgi-bin/webglimpse/home/washlaw?query=int e llectual+property&file=]

Better Ethics Online, "How to Protect Your Copyright Online", [http://actionsites.com/beo/protect.htm] (February 1999)

Brinson, J. Dianne and Mark F. Radcliffe. 1994. Multimedia law handbook: A practical guide for developers and publishers. Menlo Park, Calif.: Ladera.

Copyright Basics: U.S. Copyright Office, [http://lcweb.loc.gov/copyright/circs/circs/circ1.html#wci],( February 1999)

DuBoff, Leonard D. 1991. High -tech law. Washington D.C.: Association for Educational Communications and Technology.

Duva, Jason A., "NET Act Seeks Stiff Penalties for Network Pirates", [http://infoeagle.bc.edu/bc_org/avp/law/st_org/ipg/iptf/headlines/contest/19 97110101.html] (February 1999)  

Field, Thomas G., "Copyright on the Internet", [http://www.fplc.edu/tfield/cOpyNet.htm] (March 1999) 

Hutchings Reed, Mary. 1987. The copyright primer for librarians and educators. Chicago: American Library Association, National Education Association.

Reinking, David, "Reclaiming a Scholarly Ethic: Deconstructing 'Intellectual Property' in a Post-Typographic World", 1995

Risher, C.A. and L.N. Gasaway.1994. The great copyright debate; two experts face off on how to deal with intellectual property in the digital age. Library Journal 119 (September 15): 34-37.

Siskind, Lawrence J., "The IP Myth: What's the Big Idea?", [http://www.ipmag.com/archive.html] (March 1999)

Strong, William S. 1993. The copyright book: A practical guide. Cambridge, Mass.: MIT Press.

U.S. Copyright Office, International Copyright, [http://lcweb.loc.gov/copyright/fls/fl100.htm] (March 1999)

Willard, Nancy "A Legal and Educational Analysis of K-12 Internet Acceptable Use Policies", [http://www.erehwon.com/k12aup/legal_analysis.htm#pac]( February 1999)

William S. Strong "Copyrights in the New World of Electronic Publishing", [http://www.press.umich.edu/jep/works/strong.copyright.html]

World Intellectual Property Organization, [http://www.wipo.org/eng/], (February 1999)