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What's Protected?

What's protected?
•Original works of authorship (e.g. diary, software program, script & song)
•Fixed in any tangible medium of expression (buildings, digital or analog recordings, books, paintings)
•From which they can be perceived, reproduced, or otherwise communicated (photographed, recorded, scanned, copied, reposted)
•Either directly or with the aid of a machine (verbally transmitting someone’s work, creating copy of artwork, scanning & distributing web pages or documents)
What's not protected?
•Ideas and facts
•Works in the public domain, federal government works, unfixed works (those that have not been recorded in a fixed form- like a song you made up, or the idea for a screenplay you never actually wrote down)
•Titles, names, short phrases, processes, systems, and slogans
•Familiar designs, numbers, lettering, fonts, and symbols

Copyright- History and the Letter of the Law

Copyright protection has behind it Constitutional Authority because of the importance placed on the creation of new ideas and inventions in an emerging country, and has precedent in the US as far back as 1710.

Article 1, Section 8 of the US constitution says ' The Congress shall have the 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…”

Article 1, Section 8 tells us that copyright is meant to ensure and encourage commerce. Part of the incentive to produce something- be it a poem, a painting, or an epic work of fiction, is that you will eventually be rewarded for your efforts. Copyright provides assurances that allow artists, writers, and other creative types to produce work. It protects the livlihood of creators, and ensures that they will receive credit for their work. Without copyright, there would be less motivation to create for the market, because anyone could just steal your idea and profit off of it (either fanancially, or professionally). Copyright ensures that an idea has certain protections, which enable the creator to control their work for a given period of time.

The Mission of the Copyright Office—”promote creativity by administering and sustaining an effective national copyright system”

Fair Use: Not Carte Blanche

What's fair use?

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.”
Purpose and Character
•Not restricted to list of purposes in preamble
•Works copied for educational, non-profit or personal use are more likely to fall within fair use than works copied for profit
•Transformative uses fall within fair use (e.g. parodies, criticism & commentary)
•Does it add something new, further purpose, different character, or alter with new expression, meaning, or message
•Commercial—a higher bar to finding fair use, but not insurmountable. Likewise, non-profit helps fair use claim, but doesn’t guarantee it.
Nature of Works
•Original intent of copyright is to promote commerce and the exceptions don’t thwart this original purpose
•Works more likely to be subject to fair use include factual and non-fiction works;  published works; and, works important to favored education objectives
•Works less likely to be made fair use of include highly creative work (art, music, novels, films, plays), unpublished work
Amount and Sustaintiality
•Quantity--smallest amount possible for favored educational purposes
•Quality--substantiality—is this part of the work the “heart” of the work—no matter how small?
•But, use of the entire work in some form may be fair
Effect of Use on the Market
•Tends to be the most crucial factor (e.g. making copies of text books so that your students don’t have to purchase it)
•Not just this one instance of copying, but widespread conduct like this. What if every instructor, every school, and every library decided to make a copy rather than purchase one?
•“Potential” doesn’t mean “theoretical,” but a market that the rights-holder might logically enter given the work.