Introduction

The Internet has created a whole new medium for exchanging ideas, images, and information. With it has come a host of questions and problems for copyright owners and for the millions of individuals who view, download, upload, and transmit works subject to copyright. Because the vast growth of the Internet is a relatively recent phenomenon, copyright law in cyberspace is still in a state of development. Yet basic copyright principles form a good foundation from which to determine whether a particular use of copyrighted materials on the Internet does, or does not, violate the law.

What a Copyright Protects

The law of copyright protection is hundreds of years old, reaching back before the Constitution to the laws of England. The earliest copyrights protected printers rather than authors. Over time, the protection shifted to the author, or creator, of the work. The Founders of the United States incorporated copyright protection into the Constitution. Article I, Section 8, Clause 8, grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries." Federal statutes have codified and clarified the nature and extent of an author's copyright.

To acquire copyright protection, a work must be original, it must be creative (though only minimally so), and it must be fixed in a tangible medium. The work is instantly protected by copyright once it meets these three requirements. An author does not need to file anything or to put the word copyright, or its symbol, anywhere on the work. Filing with the federal Copyright Office, however, provides additional protections. Copyrights apply to literary, artistic, musical and other creative works, including books, stories, articles, poems, drawings, photographs, computer programs and images, movies and other audiovisual works, song lyrics, sculpture, architectural works, pantomimes and choreography, and sound recordings. Needless to say, a great deal of the information that is transmitted, stored and retrieved via the Internet is protected by copyright.

To determine whether one has violated another's copyright, one must first consider what rights a copyright protects. A copyright in a work gives its author several exclusive rights. The most fundamental of these is the right to reproduce the work -- that is, to make copies of it. The author also enjoys the exclusive rights to distribute the work, adapt or make derivative works from it, and publicly perform or display the work. Placing someone else's copyrighted work on your Web site may violate any or all of these rights. You make an electronic copy of the work when you place it on your site. If you encourage others to download freely from your site, or e-mail the work to others, a court may find that you were distributing the work. If you modified the work by annotating, editing, or otherwise significantly changing it, you may create a derivative work. And, if your site is popular, a court may find that you have publicly displayed the copyrighted work. Thus, placing someone else's copyrighted work on your Web site without permission exposes you to a copyright infringement claim by the work's author or other copyright holder.

Copyright law protects a creative work for the life of the author or creator, plus 70 years. If there is more than one author, it extends for seventy years beyond the last surviving author. For a work for hire -- one produced on behalf of an employer -- the copyright is 95 years after publication, or 120 years after creation, whichever is shorter. Most of the information on the Internet will, thus, be within the terms of copyright protections. If it's Shakespeare, you are OK; but if it looks contemporary, it's best to assume the work is copyrighted.

There are, however, exceptions to copyright protection. One of the most important of these is the fair use exception. This doctrine allows limited use of copyrighted material without permission. Whether a given use of the material is fair use depends on a number of factors, including the purpose and character of the use, the nature of the copyrighted work, the amount of the copyrighted work that is used, and the effect of the use on the market for the original. Personal use of copyrighted material, such as downloading an article from the Internet to read in one's home, is likely to be a fair use of the material. Instructional use is looked at more favorably under this rule than commercial use. And using just a small part of the work, such as quoting a passage, rather than borrowing a substantial portion, also tends toward fair use. The Supreme Court has held that fair use may include parody of the original work.

Another exception, though one widely misunderstood, is for works in the public domain. A work enters the public domain when the copyright expires. It will also become public property if the author relinquishes the work to the public by disclaiming the copyright. A work on the internet that is not clearly marked as copyrighted, however, is not necessarily public property -- remember, copyright attaches as soon as the creative, original work is fixed in a tangible medium, electronic files included.