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.
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
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)
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,
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
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
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
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.
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.)