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Copyright and Fair Use : Home

Learn about copyright and fair use.

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Alexa Hight's picture
Alexa Hight
Contact:
361-825-2588
alexa.hight@tamucc.edu
Bell Library, Room 116C

What is Copyright?

Simply put, copyright is a bundle of rights afforded to creators of creative works restricting the re-use of the work without express permission from the rights holder. Digital technologies have made it easier to copy and distribute protected works, and by extension these technologies have made it easier to infringe on copyright. Copyright infringement is illegal. At TAMU-CC we are all creating and using copyrighted works in our activities as learners, instructors, scholars, and researchers. We need to keep copyright in mind as creators and users of copyrighted works. This guide will help users and creators of copyright understand their rights. 

 In an academic setting, often when it comes to copyright the first question asked is whether or not the use of a work is covered by Fair Use. However, to really understand Fair Use we first need to understand what is covered by copyright and what those rights are. This is important for many reasons including: 

  • The intended work is not protected by copyright at all. The work may be a product of the government or the copyright may be expired. 

  • The use is not a protected right covered by copyright law. 

  • The use is within another statutory exception in the Copyright Act, which are often more generous than Fair Use.

In order to understand whether a work is covered by copyright, we need to understand what determines copyright on a work. What is required in order for a work to be protected by copyright?  

  • The work must be both "original" and "fixed in any tangible medium of expression"

  • Originality requires a minimum amount of creativity and that the work originated with the creator

  • A work is fixed if it is embodied in some stable form for more than a brief duration

  • tangible medium allows a work to be perceived or communicated

For a work to be original, the work needs to come from the creator's own inspiration, and not copied. Originality implies some degree of creativity. 

What does "tangible medium" mean? For the work to be eligible for copyright, it must be fixed in some physical form capable of identification that exists for more than a "transitory duration." Examples of fixed works can include notes on papers, recordings of music, paintings on canvas, as well as documents on web servers. 

Copyright law gives copyright holders the exclusive rights to do or to authorize a handful of specific things over copyrighted works. Users are allowed to use copyrighted works beyond the exclusive rights granted to the copyright holder. 

Copyright owners have exclusive rights to: 

  • Reproduce the work: make copies of the work. 
  • Distribute the work: materials handed out in the classroom, pictures posted on websites, documents attached in emails, books sold in the store or checked out of a library
  • Publicly perform the work: read a text aloud, display a video or film on a screen or monitor, sing or play a song aloud
  • Publicly display the work: Hang a picture on a wall
  • Adapt the work or prepare derivative works: a derivative work is a work based on one or more preexisting works.  

But wait, we do these things all the time in higher education, we make copies of works, we read texts or show movies in the classroom, we check material out from the library. Although copyright law gives holders these exclusive rights, there are limitations and exceptions. 

Copyright does not last forever. How long copyright lasts, or the duration of copyright, depends on when the work was created because copyright law has evolved over time. Once a copyright has expired, the work enters the public domain and can be used free of the limits and restrictions of copyright law. US Copyright law applies to works published and used in the United States. 

Key Points and Dates: 

  • Current copyright law does not require formalities of notice or registration for a work to be covered by copyright
  • Most works created now are protected for the life of the author plus seventy years
  • Works published before 1978 were required to have a copyright notice in order to gain protection, works published without a notice entered the public domain as soon as they were published
  • Works published between 1923 and 1978 may have copyright protection for up to ninety-five years 
  • Works published before 1923 are in the public domain

In various iterations of copyright law, works had an initial duration, with an option to renew the copyright at the end of the first duration. For works published before 1964, the copyright had to be renewed after twenty-eight years of the work entered the public domain. 

What is the "public domain?" The term public domain applies to works that have no copyright protection. This term is often confused with items that are publicly available, such as on websites that have no apparent condition of access or use. Most materials that appear to be freely available on the Internet are in fact protected by copyright, but the owners have made them available to be seen, not necessarily to be used. Open Access works are usually copyrighted, the copyright owners have made the works publicly available but this does not mean they are necessarily in the public domain. However, there are licenses that copyright owners can apply to make put them in the public domain at the time of publishing. For more on copyright licensing, see "Your Copyright" on this guide, as well as this information on Creative Commons Licenses.

 

Although Copyright law provides exclusive rights to copyright holders, there are exceptions. Many of these exceptions are vital to education and librarianship; the most important and well known of the exceptions is Fair Use. 

Limitations: 

  • Subject matter: Not everything is subject to be covered by copyright. For a work to be copyrightable, there must be creativity and originality. Additionally, there are other laws such as patents to protect works such as inventions. Therefore, facts, ideas, systems, inventions, methods of operation, words and short phrases are not protected by copyright law. 
  • Duration: As discussed in the "duration and formalities" tab, copyright has a certain duration after which works enter the public domain. 

Exceptions: 

  • Section 107: Fair Use This provision is considered the "umbrella" exception. Because it is a relatively unspecific provision that is shaped by four general factors to determine the meaning. 
  • Section 108: Library Copying This section of copyright permits copying for preservation purposes, copying of individual works for research and study, and copying for interlibrary loans. 
  • Section 109(a): The first sale doctrine This vital exception limits the distribution rights of the copyright holder by providing that once the owner has authorized the release of lawfully made copies of a work, those copies can be passed to others through sale, rental, loan, gift, or other transfer. 
  • Section 109(c): Exception for public displays This provision limits the amount of control a copyright holder has over how their work is displayed. This exception makes it possible for museums to display artwork, bookstores and libraries to display books, etc. 
  • Section 110(1): Displays and performances in face-to-face teaching This exception allows performances and displays of all kinds of works in the setting of a classroom or similar situation at most educational institutions. This exception is what allows instructors and students to recite poetry, read plays, show videos, play music, project slides, etc. 
  • Section 110(2): Displays and performances in distance learning While this provision offers many additional opportunities, it does contain restrictions and conditions. 

The US Copyright Act includes many other statutory limitations: some brief but many are complicated and technical. These exceptions are the most commonly used and relied upon in the library and academic setting. As stated above, if most of these exceptions do not apply, fair use can apply broadly to all types of works and many kinds of use. If fair use does not apply, you could seek permission from the copyright holder to use the work, or you can find alternative materials that are not covered by copyright.  

Attribution

This guide was created using many resources, many of them are linked throughout the guide. This guide was also built using information from: Crews, K. D. (2012). Copyright law for librarians and educators. Chicago: American Library Association.