On the Bookshelf - Do I Always Need Permission?

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When a work becomes available for use without permission from a copyright owner it is said to be 'in the public domain'. Most works enter the public domain because their copyright has expired.

To determine whether a work is in the public domain and available for use without the author's permission you first have to find out when it was published. Apply the following rules to see if the copyright has expired:

All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.

For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.

Finally if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.

You should assume that every work is protected by copyright unless you can establish that it is not. As mentioned above, you can't rely on the presence or absence of a copyright notice to make this determination because a notice is not required for works published after March 1, 1989 and even for works published before 1989 the absence of a copyright notice may not affect the validity of the copyright - for example - if the author made diligent attempts to correct the situation.

The exception is for materials put to work under the 'fair use rule'. This rule recognizes that society can often benefit from the unauthorized use of copyright materials when the purpose of the use serves the ends of scholarship, education or an informed public. For example: scholars must be free to quote from their research resources in order to comment on the material. To strike a balance between the needs of a public to be well informed and the rights of copyright owners to profit from their creativity, the United States Congress passed a law authorizing the use of copyrighted materials in certain circumstances deemed to be 'fair' - even if the copyright owner doesn't give permission.

Often it's difficult to know what would be considered fair use. The fair use statute requires us to consider the following questions in deciding this issue:

•  Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it's probably not fair.)
•  How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
•  How was the material used? (Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use.)

As a general rule if you are using a small portion of somebody else's work in a non-competitive way and the purpose for your use is to benefit the public, you're on pretty safe ground. On the other hand, if you take large portions of someone else's expression for your own purely commercial reasons the rule usually won't apply.

Finally if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.

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