Case Study: Week 1

Part 1: Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?

Subject to copyright:

• Any original writing by Professor Dube would be subject to copyright as long as it was captued in a fixed medium.

Not subject to copyright:

• Factual data about local weather patterns, because facts by themselves do not represent original or creative ideas and cannot be copyrighted.
• NASA satellite images of clouds are in the public domain because they are works of the United States Government. US Government works are not subject to copyright. Sometimes NASA and other government organizations note that some of the materials they publish or distribute may be protected by copyright, but this is only applies to third-party content mixed in with NASA-generated content.

Possibly subject to copyright:

• A lengthy account of local weather patterns written by the local bishop in 1905 could still be subject to US copyright if it was unpublished. While pre-1923 works are in the public domain if they have been published (and would enter the public domain after 95 years from the date of publication), unpublished works are under federal copyright for at least the life of the author plus 70 years. So if the bishop’s account of local weather patterns was unpublished it could still be subject to federal copyright, depending on how long the bishop lived.

Part 2: What could Professor Dube do about the refusal to allow her to assign her own article?

The professor should refer back to her contract with the publisher to see what rights she has given to the publisher. While most publishers require authors to grant them exclusive distribution rights this can vary. Another important point to make here is that just because an organization, such as a publisher, asserts itself as an exclusive distribution chanel does not mean this assertion is correct. In the United States Professor Dube could assert fair use, make photocopies of her article, and assign it to her class. Section 107 of the US Copyright Act explicitly identifies photocopying for classroom use as permissible and fair. If she makes a fair use of the article, she can do so without the publisher’s permission, and can do so even if the publisher says she can’t.

Questions:

1. What is copyright?

   Copyright is a “bundle of rights” governing who may use a creative work and how. It is a limited monopoly granted by governments to authors and creators “for limited times” that grants creators a certain amount of control, but not total control, over the use of their works. Copyright comes with five major rights: The right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. In addition, copyright holders are able to transfer or license these rights to others.

2. What activities does copyright prohibit?

   Copyright limits certain uses of a creative work, but because there are exceptions to those limitations, it’s hard to say whether copyright absolutely prohibits some kinds of activities. The exclusive rights of the copyright holder are the right to copy the work, the right to distribute copies of the work, the right to create derivative works, the right to perform the work, and the right to display the work. As a result, it would appear that copyright prohibits everyone from doing those things with a creative work unless they are the copyright holder. However, it is possible to do things such as make and distribute copies, or create derivative works, in a manner that would be considered fair use or fair dealing and hence not prohibited. If a use is not fair, or otherwise protected by an exception to the exclusive rights of the copyright holder, then it is prohibited. Some kinds of uses that are probably not fair include making and selling copies for profit that compete with the original in the marketplace; making a derivative work that is not considered a parody or transformative in some way; performing the work publicly in a commercial setting without permission.

3. Does copyright cover ideas or only expressions?

   Copyright only covers expressions.

4. What requirements must resource meet for copyright to apply?

   A work must be an original literary or artistic production. In most countries, it must involve some small measure of creativity, but in other countries, the investment of “hard work” absent creativity (the phone directory example) suffices. A work must be “fixed” in some tangible form, such as on paper, on celluloid, on canvas, made of copper, or even on a hard drive. This can get tricky, but, as an example, in the case of choreography, the choreographers’ notes are considered the choreography for the purposes of copyright.

5. What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?

Authors can sell some of all of the economic rights of their copyright, but not right to be known as the author. In places where there are moral rights, such as the UK and France, the author maintains the moral rights even if all other rights have been sold or transferred. Moral rights include “the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” As such, the author could control the derivatives of the work if she could prove that it would negatively impact her reputation.

6. What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?

Public domain describes works where copyright does not apply. They may be used by anyone, anywhere, anytime without permission, license or royalty payment. Works enter the public domain when copyright term ends or the copyright has been abandoned. The copyright term lasts for a minimum of 50 years beyond the death of the copyright holder, depending on the country. In the US and EU, this has been extended to life plus 70 years. Works can enter directly into the public domain if an author declares no rights reserved. Additionally, original works by the US government, some other federal governments, and some state governments are not copyrighted and – save for some statuatory exceptions – enter automatically into the public domain.