Exclusive Rights in Copyrighted Works

The Copyright Act of 1976 provides that the owner of a copyright has the exclusive right to do, or authorize to do any of the following:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale, rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. 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, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital-audio transmission.

The use of a copyrighted material, by anyone other than the owner of the copyright, amounts to infringement only when the use is such that it conflicts with any one or more of the exclusive rights conferred to the owner of the copyright.

Limitations on Exclusive Rights in Copyrighted Works

The owner of a copyright has the sole right to exercise any of the exclusive rights of copyright.  S/he can exclude others from exercising any such rights.  However, these rights are not absolute, and contain several exceptions.

I – Fair Use Doctrine

The fair use doctrine permits other people to use copyrighted material without the owner’s consent in a reasonable manner.  The fair use of a copyrighted work, which includes use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.  However, the defendant should have acted fairly and in good faith.

The following factors are to be considered in determining whether the use of a copyrighted work is a “fair use”:

1. Purpose and character of the use:  the use of copyright material can be considered fair when it relates to issues of public concern and is likely to benefit the public.  The use may not be considered fair when it is solely to obtain a commercially benefit.  A work used for a nonprofit, educational purpose is generally considered fair use.  Parody or satire, which provides social benefit by shedding light on an earlier work as well as creating a new work, is also considered a fair use of the copyrighted work.

2. Nature of the copyrighted work: when a work is unpublished, it will be difficult for a person copying the work to take the defense of fair use.  This is because in unpublished works, the author reserves the right of first publication.  Besides it is the author who is to decide when, where, and in what form a work is to be first published, or whether to publish at all.  In published historical works, only the creative expression contained within the work is entitled to protection.  If a copyrighted work is out of print and cannot be purchased, the work may be copied.  Likewise, when the nature of the work is such that it requires copying to understand the ideas and processes in the copyrighted work, copying is also usually permitted.

3. Amount of work used: the extent of permissible copying depends on the quantity, quality and importance of the materials that are to be copied.  For purposes of determining the amount of the portion copied of the original copyrighted work, the relevant question is whether the whole or substantial portion of the infringing work was copied verbatim from the copyrighted work.

4. Effect of the use on the potential market: a fair use defense generally will not prevail when copying would adverse impact the potential market for the original as well as derivative copyrighted works.

II – Limitations on Reproduction Rights

Libraries and archives are permitted under certain circumstances to reproduce and distribute one copy (in some situations three) of a work without infringing the copyright.  However, the library or archive should not reproduce or distribute such materials for commercial advantage.  The reproduction must include a notice of copyright. This right to reproduce is also conferred to private libraries that are accessible to all persons doing research in a specialized field.  In the case of an unpublished work, a library may reproduce and distribute three copies or phonorecords provided that the duplication is solely for the purposes of preservation and security, or for assisting research work in another library, and the work is not available elsewhere.  A library can reproduce up to three copies or phonorecords of a published work in order to replace a copy that is damaged, deteriorating, lost, or stolen and not available elsewhere.  A library can also make copies at the request of another library user or patron.

Governmental bodies and nonprofit organizations which are entitled to transmit a performance or display of a work may make up to 30 copies or phonorecords of a particular transmission program and use them for transmition purposes for not more than seven years after the first transmission.  To be entitled to this exemption, the broadcast must be a regular part of an instructional activity.  Governmental bodies and nonprofit organizations can also make one copy or phonorecord for each transmitting organization of a particular musical work of a religious nature or of a sound recording of such a musical work.

The exclusive rights of an owner of copyright in a sound recording are extend only to the right to reproduce, adapt, and distribute copies or phonorecords of the work, and to perform the copyrighted work publicly by means of a digital-audio transmission.  Only the particular sounds captured in the recording are protected.  The sound recording copyright holder’s exclusive right to prepare a derivative work is limited to the right to prepare a work in which the actual sounds fixed in the recording are rearranged, remixed, or otherwise altered in sequence or quality.

Copies of a computer program can be made if the copy is created as an essential step in the utilization of the computer program, or if it is for storing in archives.

The copyright in an architectural work does not include the right to prevent the making, distribution, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

III – Limitations on Distribution Rights

The copyright owner’s exclusive right to distribute copies or phonorecords applies only to distributions to the public. Once the holder of the copyright consents to the sale of particular copies of his/ her work, s/he may not thereafter exercise the distribution right with respect to such copies.  The first-sale doctrine extinguished the copyright owner’s right to control the further disposition of copies placed in the stream of commerce.  However, the first-sale doctrine does not affect a motion picture producer’s exclusive rights to perform and to authorize public performances of the copyrighted work.

IV – Limitations on Public Performance Rights

A performance will not infringe a copyright owner’s exclusive rights of public performance if the performance is for educational activities, instructional broadcasting, performance as a part of a religious service, or a nonprofit or noncommercial performance.  For all other forms of public broadcasting, a compulsory license is to be obtained from the owner of the copyright.  Similarly, in the case of secondary transmissions of a performance, compulsory license is required for all satellite carriers, cable systems, superstations and network stations for home viewing.

V – Limitations on Public Display Rights

A person who lawfully owns a copy of a copyrighted work can display that copy publicly to viewers present at the place where the copy is located.  However, a person who merely possesses a copy without having actual ownership of the copy cannot display that copy publicly.

The following public performances also do not constitute infringement:

1. display of a work by instructors or pupils in the course of classroom instruction;
2. display of a work made in the course of an instructional broadcast; and
3. display of work in the course of services at a place of worship.

The copyright in an architectural work that has been constructed does not include the right to prevent the public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

VI – Limitations on Attribution and Integrity

When there is a written instrument executed between the owner of a building and the author of a visual art, by which a visual art has been made a part of a building, and the instrument further states that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the author’s rights of attribution and integrity will not apply.