BASICS OF COPYRIGHT

I. WHAT IS IT?

A. Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship" that are fixed in tangible form.

B. This includes literary, dramatic, musical, artistic, and certain other intellectual works.

II. WHO OWNS THE WORK?

A. The default is that the author is the owner.

B. There may be joint owners of a work when:

1. Each author provides independently copyrightable contributions; and
2. There is a mutual intent that authors will be co-owners of the work, preferably captured in a written agreement.

C. The law provides that an employer is presumed the owner when:

1. Work created by employee is within scope of employment
2. Work created pursuant to contract with assignment
3. Work is properly documented as a work-for-hire

D. However, UW-System Policy GAAP 27, (adopted as UWM SAAP 32), provides a different framework for UWM's ownership.

1. This policy states that the UWM employee usually owns all rights in his or her creations. For instance, a professor who creates a scholarly article in the course of research at UWM would ordinarily own the copyright in it. UWM may have an interest in a work, however, if it contributed substantial institutional resources in the creation of the work.

2. "Substantial" resources could include providing the creator with paid release time from his or her job, purchasing special equipment to create the work, or allowing the employee exceptional access to specialized computer resources to create the work.

3. In practice, when an author uses institutional resources to create a protected work, it is preferable for the employee and University to sign an agreement prior to creation that contemplates ownership and control of the work. The Office of Legal Affairs can provide sample agreements that allocate rights and interests in copyrighted works between UWM and the author(s); (there is also a sample agreement in GAPP 27).

4. Such agreements can include terms regarding:

a) Ownership interest
b) Right to use
c) Edits to work
d) Recoupment of costs
3) Right to share in proceeds, royalties

5. In addition, if a work is produced with extramural support, such as federal funding or corporate sponsorship, the sponsor may have rights in the work. These rights need to be factored into any agreement allocating rights between the copyright owner and the institution.

E. Contact the Office of Legal Affairs at 229-4278 for a sample agreement for joint ownership or work for hire arrangements.

III. PROTECTING A WORK

A. Copyright protection is available to both published and unpublished works and whether or not a work is registered with the US Copyright Office.

B. For works created after March 1, 1989, protection exists even if the copyright notice is not affixed to the work.

C. Appropriate form of notice: (©, name of owner, date of first publication).

D. To pursue all damages available in copyright infringement litigation, the owner must have registered the work. Registration is simple, inexpensive and does not require hiring an attorney. For guidance and forms, see the United States Copyright Office web site, found at http://lcweb.loc.gov/copyright/

Copyright does not protect and anyone may freely use:

1. Works that lack originality

• logical, comprehensive compilations (like the phone book)
• unoriginal reprints of public domain works

2. Works in the public domain (copyright is expired, lost or donated to public domain)
3. Freeware (not shareware, but really, expressly, available free of restrictions-ware -- this may be protected by law, but the author has chosen to make it available without any restrictions)
4. U.S. government works
5. Facts
6. Ideas, processes, methods, and systems described in copyrighted works

B. If the work is protected, do you wish to exercise one of the owner's exclusive rights?

1. Make a copy (reproduce)
2. Use a work as the basis for a new work (create a derivative work)
3. Electronically distribute or publish copies (distribute)
4. Publicly perform music, prose, poetry, a drama, or play a video or audio tape or a CD-ROM, etc. (publicly perform a work)
5. Publicly display a painting or an image on a computer screen (publicly display a work)

If an exemption does not excuse infringement and eliminate the need to ask permission or pay fees to exercise the owner's rights, you need permission.

1. Fair use
2. Library's special rights
3. Educational performances and displays

V. THE FAIR USE TEST

A. Here's how it works:

With a particular use in mind, read each question and determine if the balance tips in favor of fair use or obtaining permission.

B. The four fair use factors:

1. What is the character of the use?
2. What is the nature of the work to be used?
3. How much of the work will you use?
4. What effect would this use have on the market for the original or for permissions if the use were widespread?

More likely fair use >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Less likely fair use

More likely fair use >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Less likely fair use

More likely fair use >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Less likely fair use

FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?

More likely fair use >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Less likely fair use

VI. CLASSROOM EXCEPTION

In a nonprofit educational institution, performance and display of works (but not reproduction) is allowed without permission of the copyright owner if the following circumstances exist.

1. Face-to-face classroom setting

Educators and students may perform or display a copyrighted work in the course of face-to-face teaching at a non-profit educational institution in a classroom or other place normally devoted to instruction. There are no restrictions on the type or length of work, and the copyright holder’s permission is not necessary.

2. In the course of a transmission

1. The performance or display is a regular part of the systematic instructional activities of a nonprofit educational institution; and
2. The performance or display is directly related and of material assistance to the teaching content of the transmission; and
3. The transmission is made primarily for

1. reception in classrooms or similar places normally devoted to instruction; or
2. reception by persons to whom the transmission is directed because special circumstances prevent their attendance in classrooms or similar places.

VII. COPYRIGHT URLs

Copyright Law in the Electronic Environment
http://www.utsystem.edu/OGC/IntellectualProperty/faculty.htm
(general overview of copyright law, fair use, FAQs, crash course in copyright)

Intellectual Property, Copyright, and Fair Use Resources Website
http://www.albany.edu/~ls973/copy.html
(compilation of laws, resources, recommended readings)

U.S. Copyright Office
http://lcweb.loc.gov/copyright/
(general information about copyright law; registration forms)

Copyright Law for Webbuilders and Multimedia Authors
http://bailiwick.lib.uiowa.edu/webbuilder/copyright.html

 Locating U.S. Copyright Holders
http://www.hrc.utexas.edu/index.html

Copyright Public Domain Time Frames
http://www.unc.edu/~unclng/public-d.htm

UWM Selected Academic Policy and Procedure S14 Copyright
http://www.uwm.edu/Dept/SecU/acad+admin_policies/S14.htm
(policy when copyright is registered on behalf of Board of Regents)

UW System GAPP 10 Computer Software Ownership (G10)
http://www.uwsa.edu/fadmin/gapp/gapp10.htm
(policy governing who owns software developed with University resources)

UW System GAPP 27 Copyrightable Instruction Materials Ownership; Use and Control(G27)
http://www.uwsa.edu/fadmin/gapp/gapp27.htm
(policy governing who owns resources developed with University resources)