What is NOT protected by copyright?

by Mike Goad

Figuring out what is protected by copyright can often be better answered by understanding what is not protected. 

Copyright protection is only for those elements of any work by an author that are original and fixed in some tangible means. (See What is copyright).

U.S. copyright law excludes a number of different things that are found in many, if not most, works.

Pre-existing material

Copyright protection for a work does not extend to pre-existing material. It is only provided for those portions of a work that result from original authorship.

A composer is researching a music copyright to determine if it has expired for a piece that has a segment he wants to use in his composition. He determines that it has not. Desiring to use it anyway, he contacts the heirs of the piece's "author" in the hopes of getting permission to use the segment.

If the composer gets permission to use the segment, his copyright on his new musical score would not cover the portion that he has borrowed. Any copyrights for pre-existing material used other works remain with the original author.

If the copyright had lapsed on the the music, the music would have fallen into the "public domain." Copyright protection does not extend to public domain material inserted into a new work that is otherwise protected by copyright. If this were not so, then the act of inserting it into the new work would instantly remove the material from the public domain and make it unavailable for others to use. (more on public domain)

Facts

The Unites States Code does not specifically identify "facts" as being exempt from protection. Rather, it states, "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." The U.S. Supreme Court, in Feist vs. Rural Telephone, says that this is "universally"  understood to exclude facts, as well.

In the same ruling, Court states that facts do not originate from authorship.  They are, thus, not original, and, again, not copyrightable.

Where original expression is used to explain or convey a fact, the original expression is protected.  However, the underlying facts are not.

Some might think that facts that they have discovered and that are not known by anyone else should be protected when they have gone to all of the effort to put them into a document. This is not the case.  The person who finds a fact and writes about it has not created it, he has merely discovered it.  Thus the requirement of original expression cannot satisfied.

Ideas, Principles, and Concepts

Ideas, principles, and concepts are specifically excluded from copyright protection. If they weren't, then the first person who wrote a romance novel would have a monopoly.

Justice Sandra Day O'Conner, in Feist vs. Rural Telephone said "the writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like."

This means that, while no-one can copyright an idea, the original words with which it is expressed in a work will be protected.

The best example that I can think of right now is what I am writing about. The principles and concepts associated with copyright belong to everyone. In a sense, they are in the public domain, just as all principles, ideas, and concepts are, with the exception of those that are protected by patent law, which is a topic I know almost nothing about. However, I am writing from my own knowledge and experience on the subject, with occasional reference to other sources. My "writings" on the principles and concepts associated with copyright, embodied in the form of this on-line article is what is protected by copyright.

Procedures, processes, systems, or method of operation

How something is accomplished cannot be protected by copyright. The way in which it is expressed, however, can be, if it is sufficiently original.

A simple example of this would be a recipe. A basic recipe is a procedure for the process of producing something to eat. A recipe that is nothing more than that will not be protected by copyright law. When a recipe is written in an original, descriptive fashion, then those elements of the recipe that embody the description are protected. However, that doesn't change the fact that the list of ingredients and how to mix and cook them is not copyrightable under U.S. law.

Along with the fact that a process cannot be copyright protected, the product of a process will likely not have sufficient originality to meet the requirements for copyright protection. What comes to mind is the use of templates for such things as want-ads or obituaries, where the pertinent information is put in and the article pops out.

Public Domain

A work in the public domain belongs to everyone and is not protected by copyright.  Once material lapses or is placed into public domain, it will always remain in the public domain. (There are a few exceptions to this, but they are very rare.)

blog published 1/29/2006