Copyright Basics & Fair Use

What is copyright?

By Philipe, CC-BY. Image of blue question mark and red copyright symbol

Although copyright can often seem daunting, at its core, it's surprisingly straightforward!

Copyright means that authors get exclusive publishing, reproduction, and other rights over their original works of expression for limited periods of time.

These exclusive rights and time periods are intended as a reward system to encourage authors and artists to write and create things. But, the rights don't last indefinitely because perpetual protection would stymie creative progress and innovation by precluding re-use.

How did this reward system come about? A Constitutional grant of authority empowered Congress to create it. Congress accordingly enacted the Copyright Act, along with other copyright laws which appear in Title 17 of the U.S. Code

Below, we discuss what the Copyright Act provides for in terms of exclusive rights and time periods.

 

Exclusive Rights for a Limited Period of Time

What are the exclusive rights?

Title 17, Section 106 of the U.S. Code grants copyright owners six main groups of rights for the length of their copyright. You will sometimes hear these referred to as the "bundle" of rights that copyright creates, which includes the rights of: 

  • Reproduction
  • Preparation of derivative works (such as adaptations)
  • Distribution
  • Public performance
  • Public display
  • Public performance of sound recordings via digital audio transmission.

What do exclusive rights mean? 

Let’s say you're writing a journal article. As the article’s copyright holder (unless/until you sign those rights over to a publisher), you now have exclusive rights to reproduce copies of it, prepare book or film adaptations from it, distribute copies of it on the Web, read the article aloud to a public paying audience, and even make posters of each page of text and display it if you wanted to.

These exclusive rights are not indefinite, however, because indefinite protection would quell the very progress that copyright law was meant to protect. So, copyright protection expires. The length of protection is determined by various factors. In general, however, you can expect that the length of copyright protection is at least the author's life + 70 years from the author's death.

What does the time limitation mean? 

If you’re using someone else’s work within the protected time period, you could need the author's permission to undertake any of the exclusive rights discussed above--i.e. to reproduce, display, perform, and create derivative works from the creation. There are some notable exceptions to exclusivity like fair use, which we discuss below.

Otherwise, you can begin to see that if you are writing a book, article, etc. that incorporates someone else's creation, you may need that author to grant you some form of permission since the author (or the author's estate) has exclusive reproduction rights until at least 70 years post-author's death.  

What happens when time expires? 

A key point is that copyright protection does expire. At that point, the work enters the "public domain." Public domain refers to works for which copyright protections have expired, or that were ineligible for copyright protection from the start (see below section "Other Prerequisites to Copyright"). Public domain works can be used without permission or paying royalties.  

To determine whether a work has entered the public domain due to expiration of copyright:

 

Other Prerequisites to Copyright

There are a few other important aspects for a work of expression to protectable by copyright.

Copyright protects expression, not ideas or facts. 

Not everything that authors create is subject to protection under the Copyright Act. Copyright protects only expression, not ideas or facts. If you are writing an article or book and incorporating population statistics, you should cite the statistics' source by professional standards, but you don't need to ask permission to use them because facts are not subject to copyright protection to begin with. Note the distinction between using the statistics vs. using the language with which an author describes them: The author can have copyright in his/her particular expression, but not the underlying facts, themselves.

Copyright Office circular offers additional examples and explanations of exclusions from copyright protection. In short, the following types of works are in the public domain as no copyright protection is available for:

  • Ideas and facts*
  • U.S. government works (although state government works may be protected, as may works funded but not produced by the federal government)
  • Scientific principles, theorems, formulae, and natural laws
  • Scientific and other research methodologies, statistical techniques, and educational processes
  • Laws, regulations, judicial opinions, and legislative reports
  • Words, names, numbers, symbols, signs, rules of grammar and diction, and punctuation

*Note, however, that while copyright law does not protect facts, an author's original compilation, arrangement, or selection of facts may be protected. In other words, factual compilations may be protected even where the facts, themselves, are not. 

The work must be authored, original, and fixed. 

Copyright protects "original works of authorship" that are fixed in a tangible form of expression. Note that being "fixed" implies that it has been captured in something that is either human or machine or device-readable--for example, if you've written it on paper or stored it on a computer hard drive.

 

Other Statutory Limitations on Copyright

We've talked about how strong these exclusive rights are. But we're scholars, and we want to comment on and build upon other people's work! What options do we have?

There are several vital limitations on copyrights in the U.S. Code. Perhaps most relevant for scholarship, publishing, and instruction are Fair Use and the TEACH Act.

Fair Use

Fair use allows limited copying of copyrighted works without having to seek the author/copyright holder's permission, when use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody.  

Evaluating fair use is done on a case-by-case basis for each work that you use, and rests on the following four factors. When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate.

 

Fair Use Factor

 

Tip for Applying the Factor

The purpose and character of the use, including whether the intended use is commercial vs. for nonprofit educational purposes.

 

Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes.

 

The nature of the copyrighted work.

 

Distributing factual works is more likely to be fair use than doing so with creative, artistic works such as musical compositions.

 

The amount and significance of the portion used in relation to the entire work.

 

Copying smaller portions of a work is more likely to be fair use than larger portions.

The effect of the use upon the potential market for or value of the original.

 

Uses that have no or little market impact on the copyrighted work are more likely to be fair.

 

The following questions can help you weigh the outcome of those four factors:

Are you planning on using the work in a different way, or for a different purpose, than the original creator?  In copyright terms, is your use “transformative”?

Are you using an amount of that work that is narrowly-tailored to your new purpose?

Want even more help evaluating fair use?  

TEACH Act

The TEACH Act of 2002 expanded certain statutory exemptions of copyright law to accommodate distance education. Much like the fair use exception (set forth in 17 USC § 107), the TEACH Act (codified in 17 USC §§ 110(2), et seq.) thus provides another means under which the copyrighted work, itself, rather than a link, can be uploaded to bCourses without first seeking the copyright holder's permission. 

In many cases, 17 USC § 107 (fair use) may provide a broader exception under which to post desired course content than the TEACH Act.  Nevertheless, it is important to understand what the TEACH Act can cover:

  • Performance of an entire nondramatic literary or musical work (such as the recorded reading of a poem or novel)
  • Performance of a limited and reasonable portion of any other work (such as a scene from a film)
  • Display of any work in an amount comparable to what would be used during a physical class setting (such as the portion of a film you would show in class, or the portion of a book chapter students would be asked to read in class)

To rely on the TEACH Act to post the above materials, the following parameters must be satisfied: 

  • The instructor supervises students' use of the materials
  • The material is integral to the class session
  • The material is directly related to and of material assistance to teaching course content
  • The material is provided as a "mediated instructional activity" (i.e. provide same type of material an instructor would use as part of live classroom session)  
  • The materials are accessible and retained only for the length of a "class session"
  • The materials are not marketed as part of online instructional activities (i.e. they are not commercially-available digital educational materials)
  • The materials were not unlawfully copied (i.e. the instructor did not "know or have reason to believe" that they were not lawfully made and acquired)

For a more fulsome explanation of the numerous conditions and requirements for complying with TEACH Act terms, visit:

 

Ownership vs. Registration

When does copyright "happen"? 

Once you create an original work of authorship that is fixed in a tangible medium, copyright immediately attaches. You are the copyright owner, unless you entered into a funding or employment arrangement that vests copyright ownership in someone else.  The UC page "What do I own" explains more.

You do not need to register your copyright with the U.S. Copyright Office to hold copyright; copyright attaches automatically. 

Why register? 

There are certain benefits of registering your copyright, however (see p. 7 of the Copyright Office circular). 

First, registering your work creates public record evidence that you are indeed the author and owner.

Second, registration allows for greater enforcement of your copyright against an infringer or plagiarist, enabling you to file suit and later making available statutory damages (set out in Title 17, Section 504 of the U.S. Code), which range from $750-$150,000 plus attorney's fees per copyright infringement. 

If you decide to register copyright for your scholarship, you can do so through the Copyright Office's website for a fee of $35.

 

Questions?

Ask us at schol-comm@berkeley.edu!