Copyright Basics

There are some important fundamentals you need to be aware of regarding what is copyrightable, as well as who controls the rights and can grant permission to reuse a copyrighted work.

1. Copyright grants a set of exclusive rights to copyright holders, which means that no one else can copy, distribute, publicly perform, adapt, or do almost anything else other than simply view or read the work without permission of the copyright holder.
2. Copyright grants rights to literary and artistic works that are original. Copyright is available to everything from paintings to blog posts, but all works must meet a certain standard of originality to warrant copyright. Different countries frame the test in different ways, but it is often considered a test of originality and/or authorial presence. Generally speaking, this means the work must have been a creation of its creator and not copied from another work. Note that even a small amount of originality warrants copyright, such as taking a simple picture of your pet.
3. Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas. The difference between an idea and the expression of that idea can be tricky, but it’s also quite important to understand. While copyright law gives creators control over their expression of an idea, it does not allow the copyright holder to own or exclusively control the idea itself.
4. As a general rule, copyright is automatic the moment a work is created, though some countries require that the work be fixed in a tangible medium before granting copyright. In countries that require fixation, such as the United States, you do not have a copyright until you type your poem, record a song, or otherwise capture your work in a fixed form. While registration with the local copyright office often confers certain benefits to the copyright holder and allows you to record your authorship officially, registration is not required to gain copyright protection.
5. Copyright protection lasts a long time. More on this later, but for now it’s enough to know that copyright lasts a long time, often many decades after the creator dies.
6. Copyright protection is balanced against other public interests. The rights granted to copyright owners may be considered against other public interests, such as freedom of expression rights, the right to access information, and the needs of people with disabilities. There are occasions when copyright protections may be limited to serve the public interest.

Important to Note:

Teachers, university faculty, and learners may or may not own and control copyright in the works they create in those capacities – that determination depends on certain laws and on the terms of the employment or contractor agreement, university or school policies, and terms of enrollment at the institution.  Important for faculty is Morehead State’s PG-18 Intellectual Property Policy:

“Traditional Academic Scholarly Work: In keeping with academic traditions of the University, the creator retains all rights to the following types of IP, without limitation: books (including textbooks), monographs, articles, reviews, and works of art (including, but not limited to, paintings, sculptures, plays, choreography, musical compositions); and individual course materials such as syllabi, exams, lectures, transparencies, study guides, workbooks, and manuals. Also included are instructional software, web pages, and internet-based instructional materials developed by faculty members in the course of their usual scholarly, pedagogical, and service activities.  The latter include projects undertaken during sabbatical leaves, faculty fellowships, and other special assignment periods intended for such activities.

The University will not claim ownership rights to such traditional works, and it specifically disclaims any potential rights to do so under the “work for hire” provisions of the U. S. Copyright Act, unless there is a predetermined written agreement.

For the purposes of this policy, works by non-faculty employees shall not be considered traditional academic scholarly works. Although staff do not maintain solo copyright on works created during their employment, they are considered co-creators and are therefore able to share their work for free. If there is potential commercial value, there are steps that must be taken to evaluate the work. See Morehead State’s PG-18 Intellectual Property Policy

The University may have the need to have IP developed for its use, ownership, and benefit that would normally be considered traditional academic scholarly work. Should the University engage the services of a faculty member to develop such IP, the terms and conditions of the development, ownership, and compensation of the faculty member shall be set forth in a predetermined written document.”

Despite varying national laws, typically most countries include limitations and exceptions in the following areas:

• Right to quote: this is an exception to allow inclusion of other works into one’s work to exercise criticism, commentary, or illustrate a point.
• Educational activities: to allow for educational activities to take place without imposing a burdensome process to obtain permission.
• Libraries, archives and museums: to allow for these important institutions to carry out their activities without infringing copyright, such as preservation activities or providing access to knowledge and information to patrons.
• People with disabilities: most countries include some type of exception for blind people.

Creative Commons Certificate for Educators, Academic Librarians, and Open Culture by Creative Commons 2.1 Copyright Basics | Creative Commons Certificate for Educators, Academic Librarians, and Open Culture CC BY Attribution

Fair Use

About Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

For help in determining “fair use,” use the Fair Use Evaluator tool. You can also explore previous judicial decisions to help you understand what may be considered “fair” or not.   You can do so with the U.S. Copyright Office Fair Use Index. 

Fair Use | Georgetown University Library    This work is licensed under a Creative Commons Attribution NonCommercial 4.0 International License.