This document has been provided to clear up
any confusions or misunderstandings that one may have concerning
copyright and fair use law. There are many people out there who do not
fully understand the law or have misinterpreted it.
The information has been quoted verbatim from Web
Software and Development: a Legal Guide - 3rd edition
by Stephen Fishman.
What is a Copyright?
Copyright provides the creator of software
or a website with the right to control how the work
is used. The Copyright Act of 1976 (17 U.S.C. SS 101
et seq.)--the federal law providing for copyright protection--grants
creators (called "authors") a bundle of intangible,
exclusive rights including:
- the right to make copies of a protected
work
- the right to initially sell, rent, lease,
or lend copies to the public (but this right is limited
by the "first sale" doctrine, which permits
the owner of a particular copy of a work to sell, lend
or otherwise dispose of the copy without the copyright
owner's permission--for example, a used bookstore may
sell the books they purchase without getting permission)
- the right to prepare new works based
on a protected work
- the right to show or transmit a copy
of a work publicly
- the right to perform a protected work
publicly
Only the author or someone whom the author
has transferred rights can exercise these rights. If
someone infringes on the copyrighted material by using
it without permission, the owner can sue and obtain
compensation for any losses.
Copyright Protection for Websites
Websites, even more so than software, involve
combinations of many disparate elements--for example,
graphics, music and text. Copyright can protect these
elements separately--for example, a photograph at a
website may have its own copyright--and copyright can
also protect the way that these diverse elements are
arranged to create the total website.
A company can claim copyright in the particular
way that the website elements are selected and arranged
even if the company does not own copyright in all the
individual elements themselves. A work created by selecting
and arranging more than one work of authorship into
a single new work is called a "collective work."
Examples of collective works are newspapers, magazines,
and other periodicals in which separate articles are
combined in to a collective whole.
Three Prerequisites for Copyright
Protection
1) Fixation
The first requirement for copyright protection is that
your work must be fixed in a tangible medium of expression--for
example, written on a piece of paper, saved on a computer
disk, or recorded on tape. Copyright protection begins
the instant you fix your work. There is no waiting period
and it is not necessary to register with the Copyright
Office, although there are important benefits obtained
by doing so.
2) Originality
A work is protected by copyright only if it is original.
This doesn't mean that it must be new to the world.
Software or a website is original for copyright purposes
if it--or at least a part of it--is original to the
author.
3) Minimal Creativity
A minimal amount of creativity over and above the requirement
is often necessary for copyright protection.
As a practical matter, the less creativity
invested in a software or website, the more difficult
it will be to protect in the event of an infringement
lawsuit.
Limitations on Copyright Protection
Copyright law includes important limitations
on the owner's rights. These limitations are intended
to protect the public by establishing the ability to
use copyrighted materials and by limiting the time periods
for copyright ownership.
Fair Use
Obviously, the advancement of the arts
and sciences cannot be fostered unless there is a free
flow of information and ideas. If you are prohibited
from making any use of software or websites without
the copyright owner's permission, the free flow of ideas
is impeded. To avoid this result, the Copyright Act
includes a fair use exception that permits limited copying
from a copyrighted work for purposes such as research
and editorial comment so long as the value of the copyrighted
work is not diminished.
Even if the material you want to use is
protected by copyright, you will not need permission
if your intended use constitutes a "fair use."
Under the fair use rule, an author is permitted to make
limited use of preexisting protected works without asking
permission. All copyright owners are deemed to give
their automatic consent to the fair use of their work
by others. The fair use rule is an important exception
to a copyright owner's exclusive rights.
The fair use rule is designed to aid the
advancement of knowledge, which is the reason for having
a copyright law in the first place. If scholars, educators
and others were required to obtain permission every
time they quoted or otherwise used brief portions of
other authors' works, the progress of knowledge would
be greatly impeded.
The following four factors must be considered
to determine whether an intended use of an item constitutes
fair use:
- the purpose and character of the use
- the nature of the copyrighted work
- the effect of the use upon the potential market for
or value of the copyrighted work, and
- the amount and substantiality of the portion used
in relation to the copyrighted work as a whole (17 U.S.C.
SS 107).
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