COPYRIGHT

LEARNING OBJECTIVE: Define copyright and recognize its provisions.

Another area of legal concern to the Navy journalist is the laws governing copyright, which, unlike libel laws, are federal statutes.

The copyright system is explained in detail in the Copyright Act of 1976 (Title 17 of the United States Code), which became effective on January 1,1978. This act was the first general revision of the copyright law of the United States since 1909. It made a number of changes in our copyright system, and for the most part, supersedes the previous federal copyright statute.

DEFINITION

Copyright, according to the act, is a form of protection provided by the federal government to the authors of "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device."

Works of authorship include the following categories:

Literary works

Musical works, including any accompanying words

Dramatic works, including any accompanying music

Pantomimes and choreographic works

Pictorial, graphic and sculptural works

Motion pictures and other audiovisual works

Sound recordings

It should be noted, however, that "copyright protection for an original work of authorship does not extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work."

Some other categories of material generally not eligible for statutory copyright protection include the following: l l l

Works that have not been fixed in a tangible form of expression; for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded

Titles, names, short phrases and slogans; familiar

symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listings of ingredients or contents

Works consisting entirely of information that is common property and containing no original authorship; for example, standard calendars, height and weight charts, tape measures and rules and lists or tables taken from public documents or other common sources

Where copyright protection applies, it is available to both published and unpublished works. The Copyright Act generally gives the owner the exclusive right to do and to authorize others to do the following:

To reproduce the copyrighted work in copies or phonorecords (phonorecords, for the purpose of this section, refers to material objects embodying fixations of sounds, such as cassette tapes, CDs or LPs)

To prepare derivative works based upon the copyrighted work

To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership or by rental, lease or lending

To perform the copyrighted work publicly in the case of literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audiovisual works

To display the copyrighted work publicly in the case of literary, musical, dramatic and choreographic works, pantomimes and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work

LIMITATIONS

It is illegal for anyone to violate any of the rights provided to the owner of copyright by the act. These rights, however, are not unlimited in scope. In some cases, these limitations are specified exemptions from copyright liability.

One major limitation is the doctrine of "fair use," which is now given a statutory basis by section 107 of the act, which states: the fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means specified (in section 106 of the act), for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, you should consider the following factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

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

4. The effect of the use upon the potential market for or value of the copyrighted work

In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.

INFRINGEMENT

To use any of the exclusive rights of a copyright owner without permission is an infringement of copyright. Infringement is in violation of the law, and as such, it is punishable by the courts.

The owner of a copyright, upon proving that an infringement has occurred, can expect to recover from the offender any monetary loss suffered as well as any profit realized by the offender due to the infringement.

When a copyright is infringed by or for the U.S. government, the exclusive remedy of the copyright owner is, with the government's permission, to bring suit against the United States in the Court of Claims. Government employees, including military personnel, are not personally liable for copyright infringement occurring in the performance of their official duties. In cases involving Navy personnel, claims of copyright infringement may be settled before the time suit is brought by the Secretary of the Navy or his duly authorized representative, the Chief of Naval Research or his designee.

To avoid the possibility of infringement, the best policy is to request permission from the owner before using any copyrighted material. The basic guidance for the procedures to be followed in obtaining copyright permission is contained in Permission to Copy Materials Subject to Copyright, SECNAVINST 5870.5 series, which covers the use of copyrighted materials in Navy publications, motion pictures, audiotapes, and videotapes and similar works.