ELT7007 - Activity 11: Literature Review

The foundation from which copyright laws in the United States emerged is rooted in the British legal system with the Statute of Anne in 1710 and came to existence in the United States Constitution (Bonner, 2006; Wilson, 2005). As noted by Wilson (2005), “the men who wrote our Constitution acted to ensure the production of the works of art and intellect necessary to create and promote culture and learning in our infant nation” (p. 3). Copyright laws encourage and support authors and creators to share their works with the public yet maintain financial rights and publication rights for a specified time period. Bonner (2006) referenced the Constitution and wrote:

the Constitution does not state that the exclusive rights of the creator should be held in perpetuity, and the wording “for limited times” was clearly designed to balance the need for incentives (providing for exclusive ownership and profit by that ownership) and the need for the free and open use of information for the purpose of a thriving democracy (by limiting the author’s right of exclusive ownership to a set period of time). (p. 2)

Copyright materials can be used with permission during a specified period of protection and then pass into what is termed public domain wherein new uses of the works quickly emerge (Bonner; Waxer & Baum, 2006; Wilson). After expiration of the copyright protection period, generally 70 years from the death of the author and for certain works the expiration is based on the date of creation (95 years later) or publication (120) years later the public is free to use the once protected materials resulting in new uses of the originally protected materials.

Copyright laws encourage works to be shared by providing protection to copyright owners as stated by Wilson (2005) “the public immediately enjoys controlled access to the works that artists, writers, and composers create, and eventually, those works become public property, available for use by anyone” (p. 4). A copyright owner is afforded certain rights under the Copyright Act of 1976 which, according to Wilson consist of:
  • Reproduction;
  • Creation of derivative works;
  • Distribution to the public;
  • Public performances of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works;
  • Public display of literary, musical, dramatic, and choreographic works, pantomime, and pictorial, graphic, or sculptural works;
  • Public performances by digital audio transmission of sound records (p. 27).
Once the works become public property or pass into what is termed public domain, anyone is free to create derivative works using the originally protected materials without violating the rights of the original copyright owner (Bonner, 2006). As described by Waxer and Baum (2006) “derivative works are those which involve adapting, recasting, or transforming one or more preexisting works” (p. 46).

The original authors or creators of the works are entitled to the profits from those works during the period covered by copyright protection thus limiting access to the creative works to individuals who pay for the rights to use them (Wilson, 2005). Not everyone can afford to pay for the use of materials yet the need to use the materials for the benefit of learning and communication still exists. The statute governing copyright contains what is termed fair use of materials which is defined by Wilson (2005) as “any use that is deemed by the law to be ‘fair’ typically creates some social, cultural, or political benefit that outweighs any resulting harm to the copyright owner” (p. 67). Most notably the areas of fair use are seen in (a) news reporting, (b) education, (c) creative works, (d) internet, and (e) commerce. Wilson described fair use as a kind of public policy which is actually an “exception to the usual standard for determining copyright infringement; that is, there is an infringing use of a copyrighted work but because of countervailing public interest, that use is permitted and is not called infringement” (p. 67). The fair use doctrine was codified in the Copyright Act of 1976 and four factors were identified which are considered when determining whether the use of materials falls under fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use on the market or the potential market for the copyrighted work (Waxer & Baum, 2006; Wilson).

Fair use in education does not mean any use would be considered fair use. In the case of nonprofit educational institutions the four factors must be considered whenever copyrighted materials are used in the educational setting. Nonprofit educational institutions are afforded additional leeway within the copyright act as what may initially appear to be copyright infringement may actually fall under an exemption to the law and is not actual infringement. Section 108 of the copyright statute expounds on the exemptions afforded to libraries and archives of copyrighted works and Section 110 defines the exemptions afforded to nonprofits for certain performances of copyrighted works (Wilson, 2005). All materials used for educational purposes must be properly cited and comply with what is commonly termed the Classroom Guidelines (also known as the CONTU guidelines) and with the “safe harbor guidelines for instructors and students who want to digitize analog images or to create multimedia work for class room use, self-study, or remote instruction” (Waxer & Baum, 2006, p. 57). The guidelines are outlined in the House Report as part of the Copyright Act of 1976 and are formerly titled the “Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals” hereinafter referred to as guidelines or guidelines for classroom use.

The emergence and rapid advances of technology have posed several challenges in terms of the original copyright laws leading to revisions to the copyright Act to address the latest technology devices such as recording devices and computers. Waxer and Baum (2006) listed the following revisions which included technology related issues:
  • Record Rental Amendment of 1984;
  • Computer Software Rental Amendment of 1990;
  • Audio Home Recording Act of 1992;
  • Digital Millennium Copyright Act of 1998;
  • TEACH Act of 2002;
  • Family Entertainment and Copyright Act of 2005. (pp. 14-15)
The Internet comes with risks for both copyright owners and copyright user and as noted by Wilson (2005) “for copyright owners, the primary danger presented by the Internet is the possibility that their works will be copied without authorization and disseminated without payment” (p. 117). Given the vast availability of copyrighted materials on the Internet and the nature of the technology information world it is easy for users to unintentionally infringe upon the rights of copyright owners (Wilson, 2005). The ability to access information and images via the Internet using the World Wide Web (Web) and other Internet services such as instant messaging and e-mail includes are considered tangible mediums which are protected by copyright law requiring appropriately acquired permissions or licensing. Open content and open source are an exception to the copyright law as works from both sources are in the public domain.

When copyright infringement occurs the rights of those protected by copyright have been considered to be violated (Waxer & Baum, 2006). The rights of a copyright owner are granted under federal law and any lawsuit filed must occur in a federal district court (Wilson, 2005). Individuals who violate the rights granted a copyright owner by the unauthorized use of the original work may be held liable in a civil court of law and in rare instances when the infringement is considered willful a criminal case may be pursued (Waxer & Baum). Liability for infringement is based upon one or all three types of infringement which can be direct, vicarious, or contributory (Bonner, 2006). When any of the exclusive rights of a copyright owner are violated the type of liability is termed as direct infringement. Vicarious infringement is seen in instances wherein someone “has the right to control the infringement of another or profits from infringement” (Bonner, 2006, p. 11). The last type of liability is known as contributory infringement which “occurs when a person has knowledge of infringing activity and/or induces, causes, or contributes to infringing conduct” (Bonner, 2006, p. 11).

It is up to the courts to decide whether the rights of the copyright owner have been violated by carefully examining the circumstances in each case against copyright case law (Wilson, 2005). In civil cases the copyright owner is responsible to establish that infringement occurred by proving (a) the work was protected by copyright, (b) the accused infringer copied the work as evidenced by an admission by the infringer or presentation of circumstantial evidence, and (c) the use of the work was improper (Waxer & Baum, 2006). Individuals, businesses, or educational institutions found in a court of law to have violated the rights of copyright owners may be subject to the following sanctions as noted by Waxer and Baum (2006):
  • Injunction to prevent the publication or distribution of the infringing work including performances or displays of the works;
  • Impound and dispose of the infringing items;
  • Actual damages from lost profits;
  • Statutory damages between $750 and $30,000 with additional amounts of up to $150,000 for willful infringement or reduced to $250 for innocent infringement;
  • Court costs and attorney’s fees. (p. 67)
When copyright infringement is found to be willful the copyright violator may also be held criminally liable and face additional penalties including imprisonment and/or fines (Waxer & Baum).

Bielefield, A., & Cheeseman, L. (2007). Technology and copyright law: A guidebook for the library, research, and teaching professions
(2nd ed.). New York, NY: Neal-Schuman Publishers, Inc.

Bonner, K. et al. (Eds.). (2006). The center for intellectual property handbook. New York, NY: Neal-Schuman Publishers, Inc.

Waxer, B., & Baum, M. (2006). Internet surf and turf revealed: The essential guide to copyright, fair use, and finding media. United States of America: Thomson Course Technology.

Wilson, L. (2005). Fair use, free use and use by permission: How to handle copyrights in all media. New York, NY: Allworth Press.