Copyright FAQs
INTRODUCTION
Unauthorized reproduction of copyrighted test material is an issue of great
concern for the test publishing community. However, test purchasers often
have little idea that duplication is unlawful and harmful. As purchasers of
copyrighted materials, test purchasers' risk of infringement will be greatly
reduced by basic understanding of copyright law.
This document is designed to be a general guide to copyright law, written in
question and answer format. It will discuss:
- Copyright basics (definitions, ownership, registration, duration, etc.)
- Prevention of unauthorized duplication (both by the publisher and by others)
- Fair Use of Copyrighted Material
- Prevention of Infringement Suits and
Losses in Test Development
This document overviews the rules governing copyrighted works. The US Government Copyright Office publishes more specific information on many areas of copyright law. The Copyright Office also maintains a World Wide Web site containing detailed copyright information. The address is:
http://lcweb.Ioc.gov/copyright
QUESTIONS AND ANSWERS CONCERNING COPYRIGHTS1. What is a copyright?
The copyright law grants copyright owners a limited monopoly over exploitation of a created work. The copyright owner has the sole right, subject to certain exceptions, to do or allow others to do each of the following acts with regard to their copyrighted works;
a) to reproduce all or part of the work;
b) to make and/or distribute copies,
c) to create derivative works (new versions based on the original work); and
d) to perform and display the work publicly.
2. What types of works can claim copyright protection ?
Among the types of works which are subject to copyright protection are literary, dramatic, musical, choreographic and pictorial works, graphic works, pantomimes, sound recordings, sculptures, motion pictures, and audio-visual works. These categories include reference works (including dictionaries), video cassettes, and computer programs and databases. Educational, psychological, and other tests instruments are copyrightable as literary works. Computer program versions of tests might also be copyrighted as an audiovisual work. Copyright protection covers both published and unpublished works.
Copyright protection does not include facts, ideas, procedures, processes, systems, concepts, principles or discoveries, although these often can be protected under patent or trade secret laws. However, the literary or other expression of these ideas and the like is covered by copyright.
3. How is a copyright obtained?
Copyright automatically exists in "original works of authorship" which are "fixed in a tangible medium of expression." Registration with the Copyright Office is not required in order for a work to be protected under US copyright law. For works infringed prior to March 11, 1989, the copyright must generally be registered with the Copyright Office in Washington, DC before the copyright owner can sue an infringer. (Once the work is registered, suit can be brought for infringements which occurred prior to registration.) For some (particularly foreign) works infringed after March 1, 1989, registration prior to suit is no longer required.
In all cases, however, registration provides certain advantages, including the ability to qualify for an award of attorney's fees and substantial statutory damages and a presumption that the registered owner is the true copyright holder.
4. Who owns a copyright in a work?
The copyright to a work becomes property of its author as soon as the work exists in some physical form (on paper, audio or video tape, or any other physical form). The only exception to the rule that a copyright vests in the author is for Works Made For Hire, which are works prepared by employees within the scope of their employment, works specifically commissioned to be part of a collective work, or works deemed Works Made For Hire by an express agreement of different parties. Such works are the property of the employer, contractor, or party designated as owner in a written agreement.
If more than one author is involved in creation of a work, each author shares ownership unless agreed to in writing otherwise.
5. How long does a copyright last?
US copyright protection for works created on or after January 1, 1978, begins at creation and lasts until 50 years after the author's death.
Copyright protection for Works Made For Hire lasts for 75 years from the date of first publication or 100 years from the date of creation of the work, whichever date expires first.
For joint works, the copyright lasts until 50 years after the last surviving author's death.
Works created prior to January 1, 1978, are also subject to copyright protection, although the duration of copyright might vary from the terms described above.
6. Should a work contain a copyright notice?
For works published (distributed publicly in a fixed form) after March 1, 1989, use of a copyright notice is optional, though highly recommended. Prior to March 1, 1989, use of a notice was mandatory on all published works and any work first published before that date MUST bear a copyright notice or risk loss of copyright protection.
Copyright notices are important for all works because anyone unlawfully using a copyrighted work cannot claim innocent infringement if the work contains a copyright notice. Knowing infringement carries more extreme penalties, including payment of the copyright owner's court costs and attorney's fees in any infringement suit.
7. What should a copyright notice contain?
A copyright notice should contain the following information:
1. The word "Copyright" followed by the copyright symbol "©";
2. The year of first publication of the work. For derivative works, the year of first publication of the derivative work is sufficient, and
3. The name of the copyright owner.
8. How are copyrights divided or transferred?
Copyrights may be divided or transferred, and certain rights (duplication, distribution, etc.) may be transferred by the copyright holder. Any exclusive transfer of rights must be made in writing and signed by the copyright holder. Nonexclusive transfers do not require a written agreement. Transfers of rights should (but need not) be registered with the copyright office.
9. How do I find out who owns the copyright for a particular work?
You should consult both the page containing the copyright notice as well as any acknowledgment pages in the work. If you have a photocopy or other reproduction that does not contain a notice of copyright or acknowledgments, you should consult an original copy of the work to determine if the original has the information you need.
Most works contain a notice of copyright. However, the information contained in the copyright notice might not reflect accurately the identity of the current copyright owner of the material in question.
The absence of a copyright notice does not mean that the work in question may be freely copied. Remember, an author, publisher or other copyright owner may claim a copyright to a work regardless of whether the work has been registered with the copyright office or whether the work contains a printed copyright notice.
The best method for determining copyright ownership is by contacting the publisher of the work that you wish to copy.
10. What are the penalties for copyright infringement?
Civil and criminal penalties may be imposed for copyright infringement. Civil remedies include an award of monetary damages. Such damages can include statutory damages (up to $100,000 per work knowingly infringed), or actual damages (including the infringer's profits), an award of attorney's fees, injunctive relief against future infringement, and the impounding and destruction of infringing copies and the plates or other articles used in making such copies.
11. What is "fair use"? How does it affect copyrighted material?
The Doctrine of "Fair Use," under the copyright law in limited situations permits the royalty-free use of a copyrighted work, including reproducing portions of that work, without the copyright owner's permission. Section 107 of the Copyright Act establishes four basic factors to be examined in determining whether a use constitutes a "fair use" under the copyright law. These factors are:
A. The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
B. The nature of the copyrighted work;
C. The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and
D. The effect of the use upon the potential market for, or value of, the copyrighted
work.
No one factor determines a person's right to use a copyrighted work without permission.
Fair use provisions pertaining to educational use are often of special importance to test publishers. Tests often are used by persons in educational institutions, who might not understand the limitations on fair use copying of test materials. In the legislative history of the 1976 Copyright Act, Congress endorsed certain guidelines relating to educational copying. The guidelines for making multiple copies without permission for use in an academic setting specifically state that unauthorized copies may not be made of "consumable" works, including workbooks; exercises; standardized tests; test booklets; answer sheets and the like.
12. Why does the law require people to obtain permission and pay fees for photocopying?
Copyright exists to foster the creation of all forms of intellectual property, including test instruments. The copyright law does so by providing fair returns to creators and copyright
owners. To the extent that any organization unlawfully makes and sells (portions of) copyrighted works without permission, authors and publishers are deprived of revenues in the very market for which they have written and published.
13. Am I infringing on someone's copyright if I make multiple copies and either distribute those copies for free or require their return after use?
You might be infringing. You do not have to sell the copies (or permanently dispose of them) in order to infringe the copyright owner's rights.
14. Can I make a copy of an entire work or a substantial part of a work for my personal use without getting permission from the copyright holder?
There is no automatic exemption for making even one unauthorized personal copy of a copyrighted work. Nevertheless, the fair use guidelines discussed above provide certain exceptions.
15. Can I legally copy a work I bought without infringing the copyright?
The purchaser of a work owns only that particular copy of the work. The purchaser does not own any rights in the copyright covering the contents of the purchased copy. Consequently, a purchaser cannot copy the purchased work, in whole or in part, without the copyright owner's permission unless such copying constitutes "fair use."
16. Other than under the Fair Use Doctrine, can I ever copy material freely without worrying about infringing someone's copyright?
Works in the public domain may be freely copied; however, collections and edited versions of works in the public domain might be protected by copyright. Works which are in the public domain include works that have never been the subject of copyright protection and works whose copyright protection has expired.
For copies of works distributed prior to March 1, 1989, absence of a notice of copyright does not necessarily indicate that the work is in the public domain and therefore freely copyable since a copyright owner may take steps to correct publication of his/or her work without notice before the absence of notice results in loss of copyright protection for the work. (Other grounds might also excuse the omission of notice.) For works distributed on or after March 1, 1989, notice is not required. Consequently, the absence of notice cannot be relied upon to indicate that a work is in the public domain.
When in doubt about the status of a work, it is best to contact the publisher's copyright permission department to determine whether the work is still under copyright or in the public domain.
Certain works created by the US government, including documents prepared by an officer or employee of the federal government as part of that person's official duties, also may be freely copied. The right to copy US government-created works without permission, however, does not extend to documents published by others with the support of US government funds, grants or contracts, to portions of government documents which contain copyrighted material from other non-government sources, or fully to publisher's edited, annotated or compiled versions of such documents.
17. Can I copy a work and sell it to if the material doesn 't have a copyright notice?
As noted above, the absence of a copyright notice cannot be relied upon to indicate that the work may be freely copied without infringing anyone's copyright.
18. What if I request permission and I don't get a response?
If you don't receive a response to your request for permission, you cannot assume that you have been granted the necessary permission.
19. What is a license?
A license is a grant of a particular right in another's copyright. For instance, many tests are reproduced and scored on software. The test publisher normally will sell a license to use the software for a certain time period. The license normally will only give the licensee the right to use the software for particular functions. The licensee normally will not receive the right to resell, modify, or reverse-engineer the software. If the licensee uses the software for more than the specific rights granted under the license, the licensee normally is in violation of copyright laws.
20. What portions of a test are protected by copyright laws?
Virtually all aspects of a test can be protectable by copyright laws, including the test items, the test layout, the normative and scoring directions, the item ordering, the test manual, test reports (narrative or otherwise), any artwork on the test materials, and any other creative element of the test or testing software. Any unauthorized duplication, modification, distribution, or display of such portions of a test usually is a violation of copyright laws.