Balancing the protection of creators and owners of intellectual property with the needs of society, the U. S. Constitution provides for granting both copyrights and patents.
These private and public interests are balanced “…to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
In the case of copyright, the rights granted to the copyright holder include:
- the right to reproduce the work
- the right to distribute the work
- the right to make derivative works
- the right to publicly display or perform the works
Copyright is the protection provided by the United States Constitution to original published and unpublished works.
Copyright applies automatically to every creation at the time it is fixed in a tangible medium of expression. One can not copyright facts or “unfixed” ideas. For example, a lecture or speech can not be copyrighted as it is delivered. Once it is written down, video taped, or otherwise “fixed” in a tangible medium, that version is covered by copyright.
Under current copyright law, it is not necessary to register a work or place a copyright notice on the work for copyright to protect it. You should assume that most modern works are covered by copyright. The US Copyright Office offers detailed information on copyright. You may wish to register your work with the US Copyright Office in order to place your copyright in the public record. Information about this process can be found on at the US Copyright Office web site.
Copyright law does allow for the use of copyrighted material without asking for permission. Some works may be outside the copyright period (in the public domain) or if still covered under copyright, use may fall under the Fair Use provision (described below). It is up to you to decide whether the work you wish to use is still under copyright.
A Map of Use Issues from the University of Minnesota Libraries may help you navigate this process.
Public Domain and Duration of Copyright
Public domain is the term used to describe works that are no longer under copyright protection. Copyright is granted for a limited time and that time period has been extended several times since the 1970’s. Currently, most copyrights last for the life of the author plus 70 years. At the end of the copyright period, the work becomes available for general use. This is often described as “passing into the public domain.”
Works published before January 1, 1923 are in the public domain and not governed by copyright restrictions. The decision process for use of copyrighted materials can be either very simple or complex. If the work that you wish to use was published before 1923, it is in the public domain and you are free to use it.
However, if the publication date is after 1923, there are several things to consider. What is the date of publication? Was the copyright renewed? Do you know who owns the copyright? Does your use fall under the Fair Use provision?
There are some limitations to the rights granted under copyright, meaning that some uses of copyrighted materials is allowed without seeking permission of the owner. The most significant for the education community is the Fair Use provision.
Digital Materials and Distance Education
Digital materials have always been protected under traditional copyright. The Digital Millennium Copyright Act (DMCA) of 1998 expanded the scope of copyright law to protect these digital materials. Title 17 of the U.S. Code was modified to reflect the growing concern of infringement of these items. Circumvention of measures to prevent infringement (such as encryption) was made illegal.
The TEACH Act of 2002 added provisions for digital material transmitted via distance education. The TEACH Act expands the scope of educators’ rights to perform and display works and to make the copies available for digital distance education, however audiovisual works and dramatic musical works may only be shown in limited portions (as clips).