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UNIVERSITY ARCHIVES

 

Copyright

 

Federal copyright law (17 U.S.C. sections 101-914) grants certain exclusive rights to creators of original works. Many of the people who use the Archives have two misconceptions:

1) Materials in the Archives are not protected by copyright, or

2) Because CWRU owns the materials, it must own the copyrights

CWRU's archivists are not lawyers so we are not pretending to give legal advice. Nevertheless, most of our users seem unaware of how copyright applies to use of materials in the Archives. We hope this introduction clarifies what can be a very confusing issue. We are only addressing copyright as it applies to materials in the Archives, not to the universe of information. URLs and references to more general explanations of copyright appear at the end of this document.

Works Eligible for Copyright Protection

The work must be original and fixed in some tangible medium. Tangible media include paper, film, audio and video tape, computer hard drives, CDs, or any other material on which a work could be recorded. Original isn't a synonym for creative or unique, but means the work must be new in the sense of not copied from something else. A photograph taken at an alumni reunion, a letter from a parent to the Dean of Adelbert College, and the University's annual report are all examples of original works eligible for copyright protection. Copyright protects the expression of an idea, not the idea itself. There may, for example, be several photographs of that alumni reunion, that look very similar but were taken by different photographers. Even though not unique, each photograph is a distinct expression and each is eligible for copyright protection. Ideas, names, titles, slogans, short phrases, or facts are not eligible for copyright protection. Some slogans, names, or phrases may, however, be protected by trademark laws.

Copyright protection does not last indefinitely. The duration varies depending on when the work was created, who created it, and whether it was published. See http://copyright.cornell.edu/resources/publicdomain.cfm for a summary. Works also lose protection, entering the public domain, because registration and notification requirements in place before 1989 were not met, or because owners relinquish their rights. Also in the public domain are works not eligible for protection because, for example, they fail the originality test.

Copyright Owners

Generally the person who created the work, its author, owns the copyright. People who are not authors can also own copyrights. Heirs of deceased authors can inherit copyrights, just like any other personal property. Copyright owners can transfer some or all of their rights in a work to one or more other parties. If the author created the work as an employee acting within the scope of his or her employment, the employer probably owns the copyright. In short, you can't tell by looking at a work, who owns its copyright.

Rights of Owners

Copyright owners have the exclusive right to:

  1. Reproduce the work
  2. Prepare derivative works
  3. Distribute copies of the work
  4. Perform or display the work publicly
Fair Use

A number of limitations to the exclusive rights of copyright owners are granted for purposes such as distance learning, preservation by libraries and archives, backup copies of software. Otherwise, if you wish to exercise one of the copyright owners' exclusive rights, you must have the owner's permission, unless your use qualifies as "Fair Use."

There are four factors to consider to determine if your use of copyrighted material qualifies as fair use. The balance of all four, rather than any one, determines fair use. (Working for a university in and of itself does not qualify every use of copyrighted material as fair use.)

1. Purpose of the Use
Purposes supporting claims of fair use are criticism, commentary, parody, newsreporting, personal, educational.
Purposes weakening claims of fair use are for-profit, commercial.
2. Nature of the Work Used
Characteristics of works supporting claims of fair use are factual, scholarly, published.
Characteristics of works weakening claims of fair use are fiction, artistic, audiovisual, unpublished.
3. Amount of the Work Used
Supporting claims of fair use are small proportions and non-essential parts of the work.
Weakening claims of fair use are large proportions and the essence of the work.
4. Effect of the Use on the Market for or Value of the Work Used
Supporting claims of fair use are out-of-print works, unidentifiable copyright owner.
Weakening claims of fair use are copies available for purchase or license.

If you plan to reproduce, distribute, prepare a derivative work, or publicly perform or display a copyrighted work, it is your responsibility to determine if it is a fair use. If it is not, it is your responsibility to identify the copyright owner and secure permission. Below are a few rules of thumb that might help you determine if works in the Archives are protected by copyright and, if so, who is the likely copyright owner.

Rules of Thumb

Unpublished materials, such as memoranda, letters, reports, photographs, created by CWRU employees as part of their job responsibilities are protected for 120 years from the date of creation. That is, on 1/1/2003 copyright to these documents written before 1883 expired. Copyright to those written after 1883 is owned by Case Western Reserve University.

Unpublished materials, such as memoranda, letters, reports, photographs created by individuals who were not CWRU employees are protected for 70 years after the death of the author. That is, on 1/1/2003 copyright to these documents written by people who died before 1933 expired. Copyright to these documents that have not expired are owned by the authors or their heirs or assignees. The fact that Case Western Reserve University owns the documents, does not mean CWRU owns the copyright.

Copyright to works produced for CWRU by outside consultants under contract is owned by the consultant unless assigned to CWRU by the contract. If the work is unpublished and is of corporate authorship (e.g., a consulting firm), it is protected for 120 years from the date of creation. If the work is unpublished and of individual authorship, it is protected for 70 years after the death of the author.

Anonymous unpublished works are protected for 120 years from the date of creation. (Most of the photographs in the Archives are in this category.)

Works published before 1923 are in the public domain.

Works published between 1923 and 1968 with notice are in the public domain if copyright was not renewed. If copyright was renewed, the work is protected for 95 years after publication.

Works published between 1923 and 1978 without a copyright notice are in the public domain.

Works published between 1964 and 1978 with a copyright notice are protected for 95 years after publication.

Works published between 1978 and 3/1/1989 without a copyright notice are in the public domain if they were not registered. If the work was subsequently registered and of individual authorship, it is protected for 70 years after the death of the author. If the work is of corporate authorship, it is protected either for 95 years from publication or 120 years from creation, whichever is shorter.

Works published after 3/1/1989 that are of individual authorship are protected for 70 years after the death of the author. If the work is of corporate authorship, it is protected either for 95 years from publication or 120 years from creation, whichever is shorter.

Resources (retrieved 3/26/2014)

Peter Hirtle, When Works Pass Into the Public Domain: Copyright Term for Archivists http://copyright.cornell.edu/resources/publicdomain.cfm

Gasaway, Lolly. When Works Pass Into the Public Domain. http://www.unc.edu/~unclng/public-d.htm

United States Copyright Office, Library of Congress. http://http://lcweb.loc.gov/copyright/

Copyright Management Center, Indiana University-Purdue University-Indianapolis. http://www.iupui.edu/~webtrain/web_samples/cmc.html

Consortium for Educational Technology for University Systems (CETUS), Fair Use of Copyrighted Works. http://www.cetus.org/fairindex.html

Intellectual Property. The Catholic University of America. Office of General Counsel. http://counsel.cua.edu/copyright/index.cfm

Case's University Library's information for faculty
http://library.case.edu/copyright/