The purpose of this tutorial is to help you better understand copyright so you can make better decisions regarding the use of copyrighted material. Read through the “Learn More” at each Step and then answer “Yes” or “No” to proceed through the decision tree. This tutorial does not purport to cover the topic exhaustively or offer legal advice. Consult a librarian for further assistance.
Section 102 states that protection is extended to a work that is “fixed in any tangible medium of expression.” This is further elaborated in the Section to the kinds of works that do not receive copyright protection: “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.” In other words, it is the tangible expression of the work that is protected not the intangible idea that lies behind it.
Statements of fact, concepts, and discoveries (e.g., gravity) are not protected. The intellectual freedom, innovation, and creativity this limitation encourages is another way in which “progress of science and useful arts” is promoted for the benefit of society. Names, titles, short phrases, and slogans are not copyrightable because they lack sufficient authorship. Generally, layout and design, including typefaces, fonts, and lettering are not copyrightable because they are merely the “building blocks of expression that are used to create works of authorship.” (See Circular 33: Works Not Protected by Copyright at Copyright.gov for more information.)
Copyright protection is granted automatically and begins the moment a work is fixed in a tangible medium of expression. (Automatic copyright came into effect on March 1, 1989 when the United States signed on to the Berne Convention for the Protection of Literary and Artistic Works.)
As stated in the Intellectual Property Clause of the U.S. Constitution above, exclusive rights to copyright protection were intended for a limited time. Over time, however, the protection term has steadily increased. In the Copyright Act of 1790, the term was just fourteen years, renewable for another fourteen years. Today, for works published after 2002, the term is 70 years after the death of author. And for corporate authorship, the term is 95 years from publication or 120 years from creation, whichever expires first.
When copyright protection for a work expires, is waived by the author/creator, or is a work for which protection is ineligible (e.g., works produced by employees of the U.S. federal government) it enters into the public domain. A work in the public domain is, as it were, owned by the public and is free to be used/re-used by anyone as they see fit—even offer it for sale. It is not uncommon, for example, to see books of classic literature reprinted by publishers and offered for sale. Although these reprinted editions may bear a copyright notice, the literary text itself is in the public domain and not actually protected by copyright.
Whether a given work is in the public domain can be difficult to determine, as evidenced by this chart developed and maintained by Cornell University Library.
As noted above in Step 1, copyright protection is granted to an author/creator automatically and begins the moment the work is fixed in a tangible medium of expression. A major exception to this rule is “work made for hire” as defined in Section 101, which includes “a work prepared by an employee within the scope of his or her employment.” In this situation, Section 201(b) stipulates that “the employer or other person for whom the work was prepared is considered the author [and] owns all of the rights comprised in the copyright.”
Work made for hire situations are common in academic institutions, and would-be authors/creators as well as persons seeking to use/re-use works should consult the institution’s intellectual property policy to determine who owns the copyright of a given work. For example, a professor may be the author and copyright holder of a course he prepared for in-class face-to-face instruction. However, if the institution commissions the professor to develop that course for an online instruction program, the institution may be considered the author/creator and the copyright holder.
As discussed in Step 1, the holder of a copyright of an original work is the owner of this intellectual property and controls certain exclusive rights over this work. Among these, is the right to specify how other people or entities are allowed to use the work. This specification is expressed through a license. A license is basically a contract between the rights holder and a would-be user. A use license does not invalidate copyright. Indeed, a use license can only be initiated as a form of “prior permission” by the copyright holder.
There are several common intellectual property use cases in academic settings that may be covered by licenses. For example, accessing journal articles or monographic literature from an aggregated database for conducting research, using images (photographs, illustrations, charts) for a PowerPoint lecture, using sheet music or a script for a public performance by a university choir or theatre group, etc. The availability of licenses granting prior permission for these and other cases can simplify the use of intellectual property on campus. Imagine if you had to conduct a fair use analysis (Step 5) or initiate a permission request (Step 6) for every single journal article you wanted to download from a database to use for your research. The entire academic enterprise would grind to a halt!
Use may be further simplified in a blanket way through licenses accessed through “collective rights societies”—organizations (such as ASCAP or BMI for musical compositions, or Copyright Clearance Center for texts) that manage licensing on behalf of thousands of rights holders under one roof.
It is important to appreciate that securing a use license may involve a fee (though fees are often rolled into the subscription price of the database or collective rights platform).
The internet has revolutionized easy dissemination of and access to information online. But this ease has created an erroneous impression that anything that can be downloaded online is legally okay to be used from the standpoint of copyright. This is not the case! Intellectual property in digital form is still protected by copyright just like any analog or physical format.
Notwithstanding the routine infringement of copyright that happens on the internet, there are many authors and creators who still want to utilize the power of the internet to broadly distribute their work online. Most of these authors/creators do not want to limit access to their work. But they do want to exercise some control over how their work is used. Balancing access with control was the basis for the creation of Creative Commons licensing. Creative Commons, founded in 2001 by intellectual property lawyer Lawrence Lessig, has developed a series of straightforward and easily understandable use licenses designed to facilitate free distribution of copyrighted work online.
The Creative Commons license suite provides a range of use scenarios (sharing, remixing, and/or commercial) that authors/creators can offer to users, from completely open to more restrictive:
Sections 107-122 in Title 17 of the U.S. Code cover specific exceptions to the exclusive rights of copyright holders enumerated in Section 106 (Step 1). Exceptions are another way that copyright law seeks to balance private rights and the public good. Section 107, which deals with fair use, will be dealt with separately in Step 5 below.
Use cases that fall within the exceptions articulated in Sections 108-122 must meet specific conditions so as not to infringe copyright. Many of the requirements are fairly involved. However, unlike the fair use exception (Section 107), which requires a careful analysis of several weighted factors, most of the other exceptions present their required conditions in a checklist-like fashion. If you can check off all the conditions of the exception as met, a strong case that your use is non-infringing is provided. This is why the decision tree has you look at these exceptions before moving on to fair use (Step 5).
Several of the exceptions have potential application within an academic context. Section 110: Exemption of certain performances and displays is especially relevant to educational use.
Section 110(1) deals with performances and displays (e.g., showing a film, recital, reading), and simply states that no permission is required if a legal copy of a work (e.g., a film) is used for face-to-face teaching activities, at a non-profit institution, in a classroom or similar place devoted to instruction. No limitation is placed on how much of the copy can be used. For example, an entire film can be shown.
Section 110(2) is the codification of the Technology, Education, And Copyright Harmonization (TEACH) Act, which was signed into law on November 2, 2002, and deals with teaching activities transmitted via digital networks. Unfortunately, the use requirements are quite complex and significantly more restrictive than face-to-face use. This seventeen step checklist, created by the University of Texas Libraries, enumerates the requirements. Despite the advantage of mitigating risk of infringement, many question the value of investing the effort of using this exception for online instruction.
Unlike most of the other exceptions that present their required conditions in a checklist-like fashion, determining whether a use of a copyrighted work is a fair use in Section 107 requires a careful analysis of several weighted factors. The determination is made using the following four factors applied to the specific circumstances of your use case.Confidence of a non-infringing use is strengthened if the balance of the four factors favors fair use.
4.The effect of the use upon the potential market for or value of the copyrighted work. A fair use case is strengthened if your use causes little or no market harm. It might be commendable to want to save your students some money by scanning and posting a PDF of the course textbook to the course management system. However, the author(s) or publisher of the textbook is unlikely to appreciate this loss of revenue! If, on the other hand, the textbook is accessible from an institutionally subscribed online database for which at least a single user license (unlimited simultaneous users is best) has been granted (Step 3), and you provide your students with a permalink to the textbook (as opposed to downloading and distributing the PDF on the CMS), the issue of market harm is unlikely to be raised.
In this specific example the issue of “potential markets” is also addressed in a manner, as it happens, beneficial to the user (because the user’s institution subscribes to the database that includes the needed textbook). In addition to revenue gained through selling the textbook directly to students from the university bookstore or online book seller, the author(s)/publisher has taken advantage of another market—gleaning licensing revenue by negotiating access to the textbook with the database vendor.
If a non-infringing case cannot be made for using an original copyrighted work from either the public domain (Step 1), retention of some or all of your copyrights as the author/creator (Step 2), an available license (Step 3), a specific exception in copyright law (Step 4), or fair use (Step 5), you still have the option of seeking permission to use the work directly from the rights holder.
As a first step, it is logical to assume that the copyright holder is the author/creator of the original work. However, because copyrights are (still) commonly transferred by authors/creators to publishers (Step 2), or the work may be “made for hire” (Step 2) you would then need to contact the publisher or the employer for permission. Contact information for an author might be found online. Rights holders for non-textual works such as photographs, works of art, songs and music, films, etc. might also often be located by searching for the artist online. If the author/creator has died, copyrights will likely have passed to his or her estate. Publisher websites frequently include information for requesting permissions. Collective rights organizations (Step 3) also manage permissions. Online tools such as WATCH: Writers, Artists, and Their Copyright Holders may also assist you in locating the rights holder.
Seeking permission from the rights holder may not be possible, either because the holder is not known (creating what is called an “orphan work”) or because they do not respond to your request (even after repeated attempts). The inability to secure permission does not allow you to go ahead and use a copyrighted work. However, it may prompt you to re-consider your earlier fair use analysis (more on this below).
Commonly, when requesting permission to use a copyrighted work, you are not asking for the rights holder to transfer their copyright to you. Rather, you are requesting a non-exclusive license from them in order to use the work in a certain specific way. Licenses were discussed in Step 3, except there you were looking for a license that gave you prior permission to use the work.
George Mason University Libraries provides an excellent procedure for requesting permission (excerpted here). Permission can be requested in an email or a written letter and should include the following:
This procedure highlights the need to give thoughtful attention to the details of your use case, which can also be helpfully applied in previous steps. When requesting, be polite, patient, and persistent. Assuming you have correctly located the rights holder, it may take several attempts to get a reply—or you may never receive a reply. You need to be prepared to be denied permission. Also, permission may be granted, but may entail a fee and/or other legal constraints. As noted in Step 3, permission constitutes a use license. You must decide whether you want to use the work under the stated terms of the license.
Created by Gary F. Draught, Library Director of Milligan University (CC BY-SA).
Adapted from “A Framework for Analyzing any U.S. Copyright Problem” by Kevin L. Smith and Lisa Macklin (2014) (CC BY-SA), Kevin L. Smith, Owning and Using Scholarship: An IP Handbook for Teachers and Researchers (ACRL, 2014) (CC BY-NC), “Copyright Question Framework InfoGuide” and “Do I need to get permission?” infographic by George Mason University Libraries (CC BY).