Statement of General Principles
- Photopholio acknowledges that copyright infringement is a violation of the law and may impose civil and/or criminal liability on the individual infringer, as well as on the infringer’s employer. Therefore, every employee is required to comply with copyright law and adhere to this copyright policy. Failure to do so may result in disciplinary action.
Photopholio’s copyright policy provides a brief summary of U.S. copyright law, particularly as it relates to the use of others’ copyright-protected materials, including published materials, and to provide procedures for obtaining copyright permission that should be used consistently throughout Photopholio.
- Copyright laws are generally not straightforward and they have many grey areas. The goal of this policy is to provide Photopholio employees (whether on a permanent, temporary or contract basis) consultants, users of this site, and agents with a uniform approach to addressing complex copyright issues. Photopholio has designated the admin as the Copyright Officer to administer our organisation’s copyright policy. The admin will oversee periodic updates to the policy, as well as updates resulting from related changes in policy or law. The aim of this policy is to provide practical advice and procedures, but it is not a substitute for legal advice. Proper legal advice should be obtained whenever necessary. Questions regarding this policy and other topics such as fair use should be directed to the admin, Copyright Officer. The admin can also assist you in obtaining advice from a lawyer if needed.
Important Information about Copyright
What is Copyright?
The purpose of copyright law is to provide authors and other creators (and those who obtain rights through such persons) with an incentive to create and share creative works by granting them exclusive rights to control how their works may be used. Among the exclusive rights granted to those authors are the rights to reproduce, distribute, publicly perform and publicly display a work. These rights provide copyright holders control over the use of their creations, and an ability to benefit, monetarily and otherwise, from the exploitation of their works. Copyright also protects the right to “make a derivative work,” such as a movie from a book; the right to include a piece in a collective work, such as publishing an article in a book or journal; and the rights of attribution and integrity for “authors” of certain works of visual art. If you are not the copyright holder, you must ordinarily obtain permission prior to re-using or reproducing someone else’s copyrighted work. Acknowledging the source of a work, for instance, is not a substitute for obtaining permission. However, permission generally is not necessary for actions that do not implicate the exclusive rights of the copyright holder, such as reviewing, reading or borrowing a book or photograph.
What is Protected by Copyright?
The rights granted under the U.S. Copyright Act (embodied in Title 17 of the U.S. Code) are intended to benefit “authors” of “original works of authorship,” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural and audiovisual creations. This means that virtually any creative work that you may come across in readable or viewable format, including books, magazines, journals, newsletters, maps, charts, photographs, graphic materials; unpublished materials, such as analysts’ reports and consultants’ advice; and non-print materials, including Web sites, computer programs and other software, databases, sound recordings, motion pictures, video files, sculptures and other artistic works are almost certainly protected by copyright.
What is NOT Protected by Copyright?
Not everything is protected by copyright. This includes: works that are not fixed; titles, names, slogans; ideas, facts and data; listings of ingredients or contents; natural or self-evident facts; and public domain works (more on this below). Some of these things may, however, be protected under other areas of law, such as patent or trademark law, or by contract. It is important to be sure that no other form of protection restricts the use of such materials before using them.
How Long Does Copyright Protection Last?
In the U.S., a work created on or after January 1, 1978 is ordinarily protected for a term equal to the author’s life plus 70 years after the author’s death. This is called the “life-plus-70” rule. Works created by companies or other types of organisations have a copyright term of 95 years. For works created before 1978, the duration of protection depends on a number of factors. For comprehensive information on duration, see: http://www.copyright.gov/circs/circ1.html#hlc.
Fair use is a defence under U.S. law that may be raised by the defendant in a copyright infringement case. Fair use recognises that certain types of use of other people’s copyright protected works do not require the copyright holder’s authorisation. The fair use doctrine is codified in Section 107 of the U.S. Copyright Act. See: www.copyright.gov/title17/. Although there are no absolute rules around fair use, generally the reproduction (photocopy or digital) or use of someone else’s copyright-protected work is more likely to be found to be a fair use if it is for one of the following purposes: criticism, comment, news reporting, teaching, scholarship or academic research.
To determine whether a particular use qualifies as fair use, the statute requires a fact-specific analysis of the use, based upon four factors:
- The purpose and character of the use (for example, whether for commercial or non-profit educational use).
- The nature of the copyright-protected work (is it primarily factual or highly creative?).
- The amount and substantiation of the portion used.
- The effect of the use upon the potential market for or value of the copyright-protected work.
All four factors must be considered and balanced against the other factors as part of each fair use analysis. Although some see fair use as a solution to many of their reproduction activities, the scope of the fair use doctrine is much narrower than most people assume. Further, fair use is an ambiguous notion and the law does not state exactly how, or how much of, a work may be used without obtaining permission. As a consequence, even copyright law experts often have a difficult time predicting the outcome in cases involving fair use.
The bottom line is that fair use requires an appropriate risk assessment as to whether re-use under certain circumstances may be considered fair use. In order to avoid any copyright risk, Photopholio permits uses of short quotes from works. Otherwise, permission procedures as set out in this policy should be followed and the advice of Photopholio’s Copyright Officer should be sought in instances where a fair use determination may be necessary.
Copyright and Foreign Works
The U.S. is a member of two major copyright treaties, the Berne Convention and the Universal Copyright Convention. As such, when Photopholio uses a copyright-protected work from almost any other country, U.S. copyright law applies to the use of that work, assuming the use takes place in the United States. Similarly, the copyright laws of other participating countries apply to the use of U.S. works in those countries. While these treaties establish certain conventions that render the laws of participating countries consistent to some degree, there are differences in each country’s law and Photopholio’s Copyright Officer should be consulted if there are questions regarding the use of materials by employees or others outside the U.S. Licensing intermediaries such as Copyright Clearance Centre offer agreements that allow the use of materials from other countries as well as the use of materials across borders, which can simplify the permission process a great deal.
Copyright and Digital Works
Photopholio Employee’s Obligations under Copyright Law
No employee of Photopholio may reproduce any copyrighted work in print, video or digital form in violation of the law. Works are considered protected even if they are not registered with the U.S. Copyright Office and employees of Photopholio must assume that most materials used are copyrighted until proven otherwise.
If an employee wants to use material that is not covered by copyright, he or she should confirm that the material is not protected by any other area of law, such as trademark or trade secret law. If it has been created by an employee of the company, they can use the material freely, subject to the guidelines set forth at the end of this document any corporate policies on the use of company-generated materials. If there is any doubt whether a work is covered by copyright it is best to be cautious and to follow the procedures established for the use of copyrighted works.
When a work is copyrighted, you must seek out and receive through a license or the express written permission of the copyright holder, the right to reuse the copyrighted work in order to avoid an infringement of copyright, unless it is determined in consultation with the Copyright Officer and, if appropriate, legal counsel, that the use would constitute a fair use.
Any employee who violates Photopholio copyright policy may be subject to disciplinary action up to and including termination.
Photopholio’s Rights with Regard to Computer Systems and Software
Photopholio reserves the right to monitor employee computer systems (including desktop, lap top and hand-held devices) and any content stored on an employee’s computer system.
Photopholio also reserves the right to remove, delete, modify or otherwise disable access to any materials found to be infringing of copyright.
Any shareware or software to be used on Photopholio’s computers should be licensed by Photopholio if they are to be used by an employee, consultant or contractor. For the security and safety of our systems they should also be installed with the permission and assistance of our
Information Technology staff. Employees are reminded that all computers, equipment and software supplied by Photopholio are subject to periodic audit.
If an employee is issued a password to access information licensed by Photopholio the employee is expected to take all reasonable measures to protect the security of the password and not to share the password with anyone.
Use of Company-Created Materials
Whenever an employee of Photopholio creates written or other creative material (such as a Web presentation or audiovisual piece), that material is presumptively protected by copyright. Works created within the scope of or related to your job are automatically owned by the Company as “works made for hire” under the U.S. Copyright Act. When works are to be created by contractors or consultants to Photopholio, the contract with such contractor or consultant should specify that all works created under that contract are deemed to be “works for hire” and that if such works do not become the property of Photopholio as a matter of law, the contractor or consultant thereby assigns all of his/her/its rights in such works to Photopholio. Please consult with the Copyright Officer or manager if you have any questions regarding the engagement of outside contractors or consultants.
When you use company-created copyrighted materials, you should always include a proper copyright notice on any materials that will be distributed outside the company. Of course, any external distribution is also subject to any confidentiality restrictions applicable to that material.
If you become aware of any unauthorised use or distribution of company-created materials, you should promptly notify the Copyright Officer or legal counsel so that appropriate actions may be taken.
Photopholio’sCopyright Compliance Procedures
How to Obtain Copyright Permission
Fact Finding Questions
Once you have identified the materials you want to use, ask yourself the following questions: Is the work the type of work protected by copyright? If so, are you using the work in a manner that implicates the exclusive rights of the copyright holder? Is it likely that the work is still protected? If the answer is YES to these questions, then you must locate the copyright holder. Is the name of the copyright owner on the materials? Does Copyright Clearance Centre represent that work? Locating the copyright holder may take some investigative and creative work. Consult with the Copyright Officer to see if she or he can offer any guidance or point you in the direction of someone within the company who can. The U.S. Copyright Office at the Library of Congress (www.loc.gov) may be of assistance in locating a copyright owner.
Permission to use copyright-protected materials should be obtained prior to using those materials. It is best to obtain permission in writing, which may be by e-mail, and to ensure that the Copyright Officer has a copy of each permission form or letter. The time needed to obtain permission may vary. When possible, it is recommended to start the permission procedure well in advance of the time that you wish to use the materials. If you need fast turnaround on a permission request, let the copyright owner know this and he/she may get back to you faster. The copyright owner, his/her representative and/or the licensing intermediary that represents the kind of permission you are seeking, will require certain specific information in order to provide you with that permission. Some organisations prepare a standard request form for all of their employees to use.
Each permission request should include the following information:
- Title of the material
- Creator/author of the material
- Description of material
- ISBN or ISSN, if applicable (standard numbers used on most published text material)
- Date of publication, if applicable
- Purpose for which you wish to reproduce the item (research, commercial, educational, etc.)
- How the material is to be reproduced (e.g., photocopied, digitized)
- Where the reproduced material will appear (including internal vs. external use) and for how long
If Photopholio does not work with Copyright Clearance Center, you must contact the copyright holder directly. As mentioned, locating the copyright holder may take some time, as well as some investigative and creative work.
The Copyright Office at the Library of Congress (www.loc.gov) may be of assistance in locating a copyright owner. Questions regarding non-text works and questions pertaining to specific procedures should be directed to the admin, who serves as our Copyright Officer.
Handling Copyright Infringement
Photopholio expects its employees to be responsible consumers of copyright-protected materials. We also encourage employees to educate their peers on copyright compliance. If any employee witnesses a potential copyright infringement, please bring the matter to the attention of the individual as well as to the admin, Photopholio’s Copyright Officer. Employees who illegally reproduce copyright-protected works may be subject to disciplinary action up to and including termination.
The Photopholio copyright compliance policy has been most recently updated on 22-08-2015.