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Copyright & Fair Use: Copyright Basics

A guideline to assist the ACPHS community in using copyrighted materials responsibly and fairly. It provides education and access to appropriate decision-making tools.

Originality

Oscar Wilde

This photo of Oscar Wilde taken by Napoleon Sarony was the subject of the court case Burrow-Giles Lithographic Co. v. Sarony in which the court ruled that the photograph met the standard of creativity. The photographer chose the camera, equipment, lighting, angles, and placement of subject. A photographic copy of a work of art, however, has been ruled not to meet this standard. It is merely “slavish copying” (Bridgeman Art Library Ltd v Corel Corp—1999.)

Copyright Symbol

Creative Commons Symbol

This signifies material with a Creative Commons license. Material may be used without permission under the guidelines specified by the author.

Open Access Symbol

What is Copyright?

Copyright is a constitutionally conceived property right designed to promote the progress of science and the useful arts by securing for an author the benefits of his or her original work of authorship for a limited time.

The U.S. Constitution states:

The Congress shall have Power…to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries.

The Copyright Law (U.S. Code Title 17 and its amendments) implements this policy by balancing the author’s rights against the public interest. Copyrights set up a monopoly, granting the copyright holder the exclusive right to:

  • Reproduce the work
  • Distribute the work
  • Prepare derivative works
  • Publicly display the work
  • Publicly perform the work

“Copying” includes photocopying, printing, scanning, posting, recording, duping, or any other means of reproducing a work either in part or entirety. Linking to copy of an electronic work is not copying.

Copyright is a limited monopoly. Exemptions are built in to the law to benefit the public.

 

Works Protected by Copyright

"Original works of authorship” that are “fixed in a tangible medium” are automatically copyrighted upon their creation. These include:

  • Literary works
  • Musical works, including any accompanying words
  • Dramatic works, including any accompanying music
  • Pantomimes and choreographed works
  • Pictorial, graphic, and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural works

Originality requires minimum creativity. (See sidebar.)

Fixed means the work is embodied in a stable form for more than a brief duration of time. A spontaneous unrecorded performance does not have the protections of copyright.

Tangible medium is one that allows a work to be perceived and communicated.

Do not assume the absence of the copyright symbol (©) on a work means it does not fall under copyright protection. Eligible works are given copyright protection upon their creation, and the author does not have to register the work with the U.S. Copyright Office or use the symbol to secure these rights. Unpublished works are fully protected by copyright.

Works Not Protected by by Copyright

Ideas, facts, titles, names, short phrases, slogans, methods, systems, processes, concepts, principles, discoveries, or devices are not protected by copyright. However, trademark and patent law may offer protection for some of these categories.

Works in the public domain do not have copyright protection. Public domain works are either those whose copyright term has expired or are U.S. Government publications.

Determining public domain status can often be complicated. The American Library Association has created an easy-to-use Public Domain Slider to help you determine a work's status.

Limited or Relinquished Copyright

Authors sometimes elect to not exercise their full rights available under the Copyright Law.

Tailored Copyright Models

Creative Commons is an organization which assists authors in creating copyright models that suit their needs. These models give the author:

  • Means of "unbundling" their copyrights, selecting which to retain and which to relinquish
  • Customized licenses which allow others who find their content online to use it under specified conditions
  • A searchable database of Copyright Commons-licensed content

Authors can create their licenses based on factors of attribution, the commercial or non-commercial purposes of the re-use, and allowing or disallowing derivative works. See the specialized licenses from Creative Commons.

Open Access/Open Content

Open Access makes many works freely available online without selected or all copyright restrictions. Examples of Open Access models include:

  • PLoS (Public Library of Science) is a nonprofit scientific publishing project aimed at creating a library of freely available journals and other scientific literature under an open content license. Articles are published under the Creative Commons "by-attribution" license.
  • The U.S. National Institutes of Health's "Policy on Enhancing Public Access to Archived Publications Resulting from NIH-Funded Research" is designed to make all research funded by the National Institutes of Health (NIH) freely accessible to anyone, and, in addition, many publishers are working cooperatively with the NIH to provide free access to their works.

It is important to investigate the copyright model employed for each open access work. Creative Commons-licensed work may be used without permission but only under the specified circumstances.

 

Copyright Exemptions

While the law establishes a limited monopoly for the exclusive use of copyrighted works, it balances these rights with the public good (i.e., the increase and transmission of knowledge and ideas). Copyrights are limited under particular conditions. These rights and conditions include:

  • Limitation on exclusive rights (Fair Use): Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (USC, Title 17 § 107)
  • Limitation on the right of reproduction: Non-profit educational libraries can make limited copies. (USC, Title 17, §108)
  • Limitation on the right of distribution: Once a lawful copy is obtained, one may distribute that copy through loan, rental, or sale. (USC, Title 17, §109)
  • Limitation on the right of public performance and display: Non-profit educational institutions can perform or display some works in physical face-to-face teaching and virtual classroom situations. (USC, Title 17, §110)