Chapter 4
ARTICLE IX. Copyright Compliance Policy*
As one of the nation's major research institutions, Case Western Reserve University is committed to leadership in the creation of new knowledge, and also is committed to respect for the rights of all copyright holders. In the discovery, use, and dissemination of knowledge, the University fosters integrity in the pursuit of scholarly investigation while contributing to society as a whole. Respect for the rights of copyright holders and the copyright laws is especially critical in the electronic environment, where copyrighted works are vulnerable to misuse and unintended further distribution, and legislation is evolving with significant new fines and liabilities for non-compliance. The University's Copyright Compliance Policy supports academic goals and values in a time of changing laws and information technologies and complements the University Intellectual Property Policy and the Acceptable Use of Computing and Information Technology Resources Policy. It is predicated on the belief that accurate information about copyright encourages the proper use of copyrighted materials, eliminates common misconceptions, and reduces the peril of individual and institutional risk. In an effort to create an environment in which all members of the University community lawfully use copyrighted materials, the Policy:
- outlines foundations of copyright that are relevant to the academic mission
- promotes respect for copyright holders' rights
- defines criteria and requirements for compliance with federal copyright laws
- informs University individuals about beneficial and legal exemptions
- offers avenues for continuing information and education about copyright laws.
This document describes the legal requirements and benefits of copyright compliance in order to be helpful to faculty, staff, and students of the University. As such, it offers information and clarification about compliance with relevant portions of the United States Copyright Act. Additional resources, including the full text of laws referred to in this Policy, are in Appendix E.
The University expects all faculty, students, and staff to abide by the Copyright Compliance Policy and to be familiar with federal copyright laws relevant to the academic use of copyrighted materials.
The University's reputation as a leader in research and information technologies is strengthened and protected by copyright compliance.
All members of the University community need to understand that copyright infringement may have serious consequences, including significant personal liability for them. The University assumes no liability for, and is not obligated to defend, individuals who knowingly fail to comply with the Copyright Compliance Policy, the copyright statutes, or any licenses for access to and use of others' copyrighted works. The University terminates the network account of repeat infringers according to the provisions of 17 U.S.C. '1201 and may take other disciplinary action as deemed appropriate.
The University Library provides general information and preliminary consultation on the use of copyrighted materials. The Office of Counsel advises on specific legal matters or redirects university members or organizations to appropriate legal counsel. Rights of the faculty to fair use, as defined in section 9, are protected under the indemnity clause of section 14 of the Faculty Handbook.
The University Library hosts Copyright@CASE, a website for copyright information and assistance on topics relevant to the Case Western Reserve University community: http://www.cwru.edu/UL/c/index.htm
2. Copyright Background and Importance as Federal Law
The roots of copyright law in the United States are found in the Constitution, which states: "The Congress shall have the power...to promote the Progress of Science and the useful Arts by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." United States Constitution, art. 1, sec. 8, cl. 8. Copyright law is codified as The Copyright Act, Title 17, United States Code. Copyright recognizes that a creator of intellectual property contributes to the whole of society and should be rewarded by having exclusive rights of use for limited times. As the "limited times" expire, others are free to use the works to create new works, thus promoting the progress of knowledge and society.
Copyright also recognizes the needs of researchers to use others' copyrighted works before those limited times and exclusive rights expire. Copyright law provides for a balance between protecting the private rights of creators and the public interest to use copyrighted works in order to create new works.
Copyright is a property right in an original work of authorship. Copyright is automatic and begins the moment any "original work of authorship is fixed in a tangible medium of expression."
- Original works of authorship may be literary, dramatic, musical, or artistic: e.g., books, articles, photographs, paintings, sculpture, architecture, pantomimes, choreography, music, or sound recordings. These categories are broad and may include software, web pages, electronic discussion lists, or email.
- "Fixed medium" is also broad: e.g., print, film, a disc, a website, or email. Unpublished as well as published works are fixed and have automatic copyright.
- Copyright protection does not require any form of copyright notice or registration with the U.S. Copyright Office, although affixing a notice and registering a work enhances protection of the owner's rights.
Copyright does not apply to facts, theories, ideas, mathematical equations, formulas, concepts, titles, systems, or processes; but works embodying such elements may be protected under copyright law if they show some minimal level of creative expression. Copyright only protects the expression of such content. Copyright does not apply to work attributed to the federal government, which can however receive and does hold copyrights transferred to it by other parties (state and local government works may be subject to copyright).
Many, but not all, works subject to copyright are published with a notice such as "Copyright 1998 by Case Western Reserve University." Affixing a copyright notice is beneficial to the copyright owner because the notice informs the public that a work is protected by copyright, identifies the copyright holder, and shows the year of first publication. When a work bears a copyright notice, it is much more difficult for an alleged infringer to interpose a defense based upon innocent infringement.
The absence of a copyright notice does not necessarily mean that the work in question is not copyrighted. The use of a copyright notice is optional for works published on or after March 1, 1989. The copyright owner of works published between January 1, 1978, and March 1, 1989, had five years from the date of publication to correct the omission of notice. Works published prior to January 1, 1978, without a copyright notice entered the public domain immediately upon publication.
Ignorance of whether a work is protected by copyright is no defense against a claim of infringement. The burden is on the user to determine whether he or she is acting legally.
5. Damages For Copyright Infringement
A copyright owner in a general copyright infringement suit may seek damages that include:
- court costs and attorney's fees
- actual damages
- statutory damages, where applicable
- profits of the infringer that are attributed to the infringement
- temporary and permanent injunction against infringement
- impoundment of infringing copies
- destruction of infringing copies
Damages assessed against an infringer may be very substantial. A court may impose statutory damages of up to $30,000 for each act of infringement ($150,000 for willful infringement).
Copyright registration is accomplished by filing the appropriate form with the United States Copyright Office in Washington, D. C. and paying the required fee. Registration is beneficial to the copyright owner in several ways:
- Registration establishes a public record of the copyright claim.
- Registration is a pre-condition to filing an infringement suit in federal court if the work is of U. S. origin.
- Registration prior to or within five years of publication is prima facie evidence in court of the validity of the copyright.
- Registration prior to or within three months of publication (or prior to its infringement) entitles the copyright owner to seek statutory damages and attorney's fees in an infringement suit.
- Registration allows the copyright owner to record the registration with the U. S. Customs Service for protection against importation of infringing copies.
Copyright owners hold a number of exclusive rights that others may not exercise unless invoking legal exemptions. Commonly referred to as a "bundle of rights," all copyrights can be retained by the creator or "unbundled" individually. Over time, publishers, employers, or corporations may hold some, or all, of the exclusive copyrights.
University faculty, students, and staff may wish to copy articles for a class, use a graphic to enhance a published webpage, or show a movie for instruction. In some instances, copyright law permits such uses without seeking owners' permissions; in other instances, such uses are prohibited. Faculty, staff, and students must be careful not to infringe on the exclusive copyright holders' rights to:
- reproduce a work
- copy: any fixed "form where it can be perceived, reproduced, or communicated, either directly or with the aid of a machine" (2)
- create derivative (adaptive) works
- derivative: based on a previous work, with addition of new, original content, e.g., a new musical from a play, a new movie from a book
- distribute the work
- publish, download, upload, increase access to, transmit electronically
- perform the work publicly
- recite, render, play, act, dance "with or without the aid of a machine" (3) so that the work can be seen or heard (e.g., audio recordings are performances)
- display the work publicly
- display to an audience a work licensed only for private viewing
- perform sound recordings publicly by means of digital audio transmission (4)
Absent a pertinent exemption, unauthorized use of copyrighted materials violates the rights of the copyright holder and is directly contrary to the academic value of respect for others' works. Even unintentional infringement violates the law. Violations of copyright law that occur on the University network or systems may create additional liability for the University as well as the individual.
In recognizing the necessary balance between creators and users, the law provides criteria for using copyrighted works without infringement. Many determinations need to be made in order to use a copyrighted work or apply an exemption, yet the root of use and determination begins by understanding the exclusive rights of the copyright holder.
8. Term Limits of Copyright Protection
The length of copyright protection afforded to a particular work depends upon both the date and the circumstances of its creation. A work by an individual author or authors is protected for a term based upon the life of the authors. Anonymous and pseudonymous works and works made for hire are protected for a specific term of years. Once these terms have expired or the copyright holders have relinquished their rights, the works pass into the "public domain."
Using Copyrighted Works Without Permission'The Public Domain
The intellectual commons of the "public domain" is the foundation for an informed society and the progress of knowledge. It affords researchers the unrestricted use of works that have entered the public domain.
A work moves into the public domain only after the exclusive rights assigned by federal law have expired or when a copyright holder places a work directly in the public domain. A common misconception about the definition of public domain is that any work without a copyright notice is free to be used without permission or that works on the Internet are in the public domain.
"Public domain" is defined by specific dates of creation or publication (sometimes relative to the presence of a copyright symbol or notice) and by terms of copyright protection afforded to one or more authors for specific times, whether or not a work is published or unpublished.
An exception to copyright protection governs U.S. government publications, which carry no copyright.5 This exemption applies to federal works, not those of state or local governments, which retain copyright. Additionally, publications funded by the government but authored by someone hired to do the work (grants, contracts) or other published, edited, annotated, or compiled versions of government documents may be copyrighted.
University faculty, students, and staff must determine the author and date of a work, in order to determine that the work is in the public domain and to use the work without restrictions. When in doubt about copyright ownership, databases, indexes, and/or publishers and clearinghouses are helpful in determining ownership.
When ownership is clear, the included chart "When Works Pass Into the Public Domain" aids in determining true public domain a work's status:
When Works Pass Into the Public Domain (6)
| DATE of WORK | PROTECTED FROM... | TERM of PROTECTION |
| Created 1-1-78 or later | When work is fixed in a tangible medium of expression | Life + 701 years. If work is of corporate authorship, the shorter of 95 years from publication or 120 years |
| Published before 1923 | Now is in public domain | None, expired. |
| Published from 1923-63 | When published with notice (3) | 28 years + possibility of renewal for 67 years. If not renewed, is in public domain. |
| Published 1964-77 | When published with notice | 28 years for 1st term + automatic renewal for 67 years |
| Created before 1-1-78 but not published | 1-1-78, effective date of the Copyright Act which eliminated common law copyright | Life + 70 years, or 12-31-2002, whichever is greater. |
| Created before 1-1-78 but published between then and 12-21-2002 | 1-1-78, the effective date of the Copyright Act which eliminated common law copyright | Life + 70 years or 12-31-2002, whichever is greater |
(1) Term of joint works is measured by life of longest-lived author.
(2) Also works for hire, anonymous & pseudonymous works 17 U.S.C. ' 302(c)
(3) Under the 1909 Act, works published without notice went into the public domain upon publication.
Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if, e.g., registration was made within 5 years. 17 U.S.C. ' 405
The University encourages the use of public domain works to facilitate the exchange of knowledge and further the academic mission. Committed to leadership in research, the University also encourages members of the University community to place their works into the public domain and to negotiate publication without restrictions, when appropriate. Sharing knowledge expedites use by other researchers and embodies the spirit and intent of the Copyright Act to promote the progress of knowledge.
Using Copyrighted Works Without Permission''107, The Fair Use Doctrine
Copyright law allows limited exemptions for copying, distribution, modification, and performance and display of copyrighted works without the copyright holder's permission, but exemptions are granted only under certain circumstances. This provides a balance that protects the owner's rights while recognizing the need of others to use the work to create new works. The most important exemption for educational institutions is the one known as "fair use."
- The purpose and character of the use.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the whole.
- The effect of the use upon the potential market for or value of the work.