Copyright Basics

Copyright - The right of literary property as recognized and sanctioned by positive law. An intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic production, whereby he is invested, for a specified period , with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. - Black's Law Dictionary - Sixth Edition.

  • Copyright attaches automatically to all works in a tangible medium created after 1989. Works created prior to 1989 are subject to complex provisions and should be examined on a case-by-case basis.
  • Online material is protected by copyright even if posted anonymously. The Copyright Act protects all works, regardless of whether the author is known or unknown.
  • Only the owner of the copyright may create works based or derived from the copyrighted work. This is commonly referred to as a "derivative work".
  • Copyright may be owned by:
    1. the author;
    2. the author's employer if they were created in the scope of his or her employment (a "work-for-hire");
    3. another party if the author has assigned his or her rights to someone else (an "assignment" - typically occurs if the work is published in a journal);
    4. multiple parties if the work is a collaboration of two or more authors in which their contributions are joined into one work. This is referred to as a "joint work" and each author has equal rights to enforce copyright. Permission must be obtained from each author.
  • Abstracts are protected under copyright law and may not be submitted as your own summary.
     
    PUBLIC DOMAIN
    • Works in the public domain are no longer copyrighted.
    • Copyrighted works created after 1978 are protected by copyright for the life of the author plus 70 years.
    • Joint works are copyrighted for 70 years after the death of the last surviving author.
    • Works-for-hire are copyrighted for 95 years from first publication or 120 years from creation, whichever is less.
    • ANY work prepared by an officer or employee of the U.S. government as part of his or her official duty are in the public domain.
    • Works created prior to 1978 are subject to complicated criteria and should be examined on a case-by-case basis.
  • Copyright and plagiarism, while similar are separate and distinct. Plagiarism involves using someone else's work without proper attribution. Copyright infringement concerns using someone else's work without permission.
  • Copyright infringement can result in court-ordered damages ranging from $250 to $150,000, plus attorneys' fees for each act of infringement. If the infringement is considered "criminal", it can result in fines and imprisonment.


FAIR USE - is used to justify using copyrighted material without first seeking permission. It is also a complicated legal defense against copyright infringement that is determined ultimately by a court.
To determine Fair Use - A four factor test:

  1. What is the character of its use?
    Educational or Personal use tend to indicate fair use. Commercial use tends to negate fair use.
  2. What is the nature of the work being borrowed from?
    Fair use favors reproducing fact-based work, published material (vs. unpublished), news reporting, scholarship and.
  3. How much of the work will be used/borrowed?
    Reproducing smaller sections of a work tends to meet this factor as opposed to extracting large or essential portions of the original.
  4. What is the effect upon the work's value?
    Uses which have little or no market value are more likely to be fair than those that deprive (or potentially deprive) the author's ability to earn income from the work.

THESE ARE NOT DETERMINATIVE AS ONLY A COURT CAN DETERMINE WHETHER FAIR USE IN FACT EXISTS

HOW TO GET COPYRIGHT PERMISSION:

  1. First step, determine who owns the copyright for the material you intend to use. In many cases, simply contacting the owner directly will result in a "yes", but be prepared to pay a fee. In all cases, make sure you have received permission in writing to avoid any future misunderstandings with the author or copyright owner.
  2. Include the following information in your request: Title, author(s), edition number, ISBN Number, exact amount to be used, and a description of how the material will be used, and the purpose, form of attribution/copyright notice required by owner, and the frequency of use if for more than one occurrence.
  3. Be patient. Not every request will be acknowledged or responded to in a timely fashion. You should begin the permission process when you begin researching and preparing your work if at all possible.
     
    The American College of Emergency Physicians® will not publish your material unless and until it receives an assignment of copyright and release agreement.

NOTICE: This commentary discusses general legal issues involving copyright and is not designed or intended to give any specific legal advice pertaining to any specific circumstances. It is important that you seek professional legal advice prior to acting upon any of the information contained in this commentary.

  1. If the work does not have a "©" (copyright notice) then it is not copyrighted material.
    FALSE: Copyright attaches automatically to all works in a tangible medium created after 1989.
    Works created prior to 1989 are subject to complex provisions and should be examined on a case-by-case basis.
  2. I can republish abstracts without obtaining permission from the copyright owner.
    FALSE: Copyright attaches automatically to ALL works in a tangible medium created after 1989. If you reproduce, republish or redistribute someone else's work, you may be violating copyright law. You may not submit published abstracts as your own summary of an article or study.
  3. Anything on the Internet is public domain and can be used without permission.
    FALSE: Online material is protected by copyright even if posted anonymously. The Copyright Act protects all works, regardless of whether the author is known or unknown.
  4. I can use someone's copyrighted work provided I change it or incorporate it into my own.
    FALSE: Only the owner of the copyright may create works based or derived from the copyrighted work. This is commonly referred to as a "derivative work".
  5. I only need to obtain permission from the author of the work.
    FALSE: Works may be owned by:
    1. the author's employer if they were created in the scope of his or her employment (a "work-for-hire");
    2. another party if the author has assigned his or her rights to someone else (an "assignment" - typically occurs if the work is published in a journal);
    3. multiple parties if the work is a collaboration of two or more authors in which their contributions are joined into one work. This is referred to as a "joint work" and each author has equal rights to enforce copyright. Permission must be obtained from each author.
  6. If a work is over 70 years old, it is in the public domain.
    TRUE and FALSE:
    • Works created after 1978 are protected by copyright for the life of the author plus 70 years.
    • Joint works are copyrighted for 70 years after the death of the last surviving author.
    • Works-for-hire are copyrighted for 95 years from first publication or 120 years from creation, whichever is less.
    • ANY work(s) prepared by an officer or employee of the U.S. government as part of his or her official duty are in the public domain.
    • Works created prior to 1978 are subject to complicated criteria and should be examined on a case-by-case basis
  7. As long as I acknowledge the author ("attribution"), then I don't need to obtain copyright permission.
    FALSE: Copyright and plagiarism, while similar are separate and distinct. Plagiarism involves using someone else's work without proper attribution. Copyright infringement concerns using someone else's work without permission.
  8. Public Domain and Fair Use are the same thing.
    FALSE: Works in the public domain are no longer copyrighted. Fair Use is more complicated and is a legal defense against a copyright infringement suit (or justification for using copyrighted material without seeking permission). Courts apply a four factor balancing test to determine fair use:
    1. What is the character of its use?
      Educational or Personal use tend to indicate fair use. Commercial use tends to negate fair use.
    2. What is the nature of the work being borrowed from?
      Fair use favors reproducing fact-based work, published material (vs. unpublished), news reporting, and scholarship.
    3. How much of the work will be used/borrowed?
      Reproducing smaller sections of a work favors fair use as opposed to extracting large or essential portions of the original.
    4. What is the effect upon the work's value?
      Uses which have little or no market value are more likely to be fair than those that deprive (or potentially deprive) the author's ability to earn income from the work.

      THESE ARE NOT DETERMINATIVE AS ONLY A COURT CAN DETERMINE WHETHER FAIR USE IN FACT EXISTS  
  9. I should just take my chances and not obtain copyright permission.
    FALSE:Copyright infringement can result in court-ordered damages ranging from $250 to $150,000, plus attorneys' fees for each act of infringement. If the infringement is considered "criminal", it can result in fines and imprisonment.
  10. Okay, I don't own the copyright, I haven't received permission to use the Work, it's not in the public domain and fair use doesn't apply. What do I do?
    1. First step, determine who owns the copyright for the material you intend to use. In many cases, simply contacting the owner directly will result in a "yes", but be prepared to pay a fee. In all cases, make sure you have received permission in writing to avoid any future misunderstandings with the author or copyright owner.
    2. Include the following information in your request: Title, author(s), edition number, ISBN Number, exact amount to be used, and a description of how the material will be used, form of attribution/copyright notice required by owner and the purpose and the frequency of use if for more than one occurrence.
    3. Be patient. Not every request will be acknowledged or responded to in a timely fashion. You should begin the permission process when you begin researching and preparing your work if at all possible.

      THESE ARE NOT DETERMINATIVE AS ONLY A COURT CAN DETERMINE WHETHER FAIR USE IN FACT EXISTS

The American College of Emergency Physicians® will not publish your material unless and until we receive an assignment of copyright and release agreement.

NOTICE: This commentary discusses general legal issues involving copyright and is not designed or intended to give any legal advice pertaining to any specific circumstances. It is important that you seek professional legal advice prior to acting upon any of the information contained in this commentary.
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