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How do I know if the work I want to use is copyrighted?

Original works of authorship fixed in any tangible medium of expression, such as books or articles, are generally entitled to copyright protection.  17 U.S.C. § 102 . Copyright protection grants the copyright owner certain exclusive rights, such as the right to reproduce, prepare derivative works, distribute, perform, and display the work. 17 U.S.C. § 106 . Under the current law, registration, publication, and notice of copyright are not required for copyright protection. See 17 U.S.C. §§ 102, 401(a), 402(a), 408(a). FN1

There are limitations, however, on copyright protection, which may allow use of the work without permission. Such limitations include: (a) expiration of the copyright term, 17 U.S.C. §§ 302, 303, 304, 305; (b) fair use, 17 U.S.C.§ 107; (c) exemptions for performances and displays by instructors and students, 17 U.S.C. §§ 110 (1) and (2);and (d) exceptions for works created by the U. S. government, 17 U.S.C. § 105.

In most cases you can assume that outside materials that you wish to post on your course page (e.g., articles, book excerpts, pamphlets, etc.) are copyrighted, unless they were published in the United States before 1923, FN2 or produced by the U.S. government, 17 U.S.C. § 105. The other FAQs in this series address the use of copyrighted materials in online courseware more specifically, including whether the fair use exception may apply. Responses to the questions also suggest methods of providing students with access to copyrighted materials on course pages without raising infringement concerns.


Prepared by Nanette Norton and Julienne Grant.

FN1 See also Library of Congress, Copyright Office, Circular 3:  Copyright Notice (Washington, D.C.:  U.S. Government Printing Office, 2004) 1, available at http://www.copyright.gov/circs/circ03.pdf; Library of Congress, Copyright OfficeCircular 1:  Copyright Basics (Washington, D.C.:  U.S. Government Printing Office, 2006) 3, available at http://www.copyright.gov/circs/circ01.pdf.

FN2 According to the Copyright Office, "[w]orks published before January 1, 1923, have fallen into the public domain." See Library of Congress, Copyright Office,Circular 15t: Extension of Copyright Terms;(Washington, D.C.: U.S. Government Printing Office, 2003) 3, available at http://www.copyright.gov/circs/circ15t.pdf.  However, a Ninth Circuit decision implies that works first published abroad without notice prior to 1923 might not be in the public domain. Twin Books Corporation v. The Walt Disney Company, 83 F.3d 1162 (9th Cir. 1996). This case has been criticized by Nimmer, a leading copyright scholar. See Melville B. Nimmer & David Nimmer, Nimmer on Copyright §§ 4.01(C) and 9.11(B)(1) (New York: Matthew Bender & Company, a member of LexisNexis Group, 2007) (criticizing Twin Books KF 2988.8 .C66 2000 and arguing that works published through the end of 1922 entered the public domain regardless of whether the publication took place in the United States or abroad).

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