Intellectual Property: Copyright, Fair Use, Permissions and Citations

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Michael Bewer & the ALA Office of Information Technology, 2008. (CC-BY-NC-SA 3.0)

 

Copyright | Creative Commons | Fair Use | Permissions & Licensing | Citations | Related Guides

 

Introduction

This guide offers an overview of the issues surrounding intellectual property for research and scholarship. The content of this guide is not intended to provide legal advice.


Copyright
 

What is copyright? 

Copyright is a form of federal legal protection for authors of original works, including literary, dramatic, musical, and artistic works. Copyright law applies to a wide range of creative and intellectual works, including but not limited to poetry, novels, articles, reports, movies, songs, choreographed works, computer software, and architecture. 

Who owns the copyright of a work?

As a general rule, the initial owner of the copyright is the person who did the creative work—the “author”. However, copyright can be transferred—the author can give or sell their rights to others. In addition, rights can be transferred temporarily by contract. These contracts are often called licensing agreements.

What rights do copyright owners have?

Current federal copyright law generally gives the owner of copyright the exclusive right to do the following, as well as the right to authorize others to do the following:

  • reproduce the work 
  • prepare derivative works based upon the work
  • distribute copies of the work 
  • perform the work publicly
  • display the work publicly

Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works. 

What works are protected by copyright?

Copyright law applies to almost all types of creative and intellectual work, including the following:

  • literary works
  • musical works
  • dramatic works
  • choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

What works are not protected by copyright?

Copyright law does not apply to everything.  Copyright does not protect facts, ideas, systems, discoveries or methods of operation, although it may protect the way these things are expressed. Examples of works generally not eligible for federal copyright protection include the following:

  • ideas that have not been fixed or recorded in some way
  • titles, names, short phrases, or slogans
  • simple listings of ingredients
  • facts or works consisting entirely of information that is common property and containing no original authorship (e.g., standard calendars, tape measures and rulers, etc.)
  • procedures, methods, systems, processes, concepts, principles, discoveries, or devices 

When does copyright apply to a work?

Copyright protectable works receive instant and automatic copyright protection at the time that they are created. Works do not need to be published or registered to be protected by copyright, but they do need to be expressed and/or recorded in a fixed format. 

Copyright does expire. Current copyright law states that protection generally lasts as long as the author’s life plus an additional 70 years. When a work’s copyright expires, the work enters the public domain.  For works made for hire (works made for a corporation or institution), the copyright term is either 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.

What is the public domain?

A work is in the public domain if its copyright has expired or if it never met the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

How can I tell if something is in the public domain?

As a general rule, works registered or published in the U.S. before 1923 are in the public domain. U.S. government documents are in the public domain. For all other works, some research is required to determine whether it is in the public domain. A good place to start is Copyright Term and the Public Domain.

Video: Elsa Loftis, "Copyright and Fair Use" from Lynda.com

Works cited for this section:


Creative Commons
 

A copyright owner may grant rights to the public to use a protected work. That grant could be a simple statement on the work explaining the allowed uses, or it may be a selection of a Creative Commons license. Similarly, the movement to make works "open access" or "open source" is a choice by the owner of rights to make works available to the public. 

Creative Commons is a non-profit organization that provides six free copyright licenses designed to make a simple and standardized way to give the public permission to share and use a creative work. Creative Commons licenses may be applied to any type of work, including educational resources, music, photographs, databases, government and public sector information, and many other types of material. The only categories of works for which Creative Commons does not recommend its licenses are computer software and hardware. 

All Creative Commons licenses are non-exclusive: creators and owners can enter into additional, different licensing arrangements for the same material at any time. All Creative Commons licenses require that users provide attribution (BY) to the creator when the material is used and shared. Some licensors choose the BY license, which requires attribution to the creator as the only condition to reuse of the material. The other five licenses combine BY with one or more of three additional license elements: NonCommercial (NC), which prohibits commercial use of the material; NoDerivatives (ND), which prohibits the sharing of adaptations of the material; and ShareAlike (SA), which requires adaptations of the material be released under the same license.

Video: Jessie Dylan, "A Shared Culture," creativecommons.org

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Fair Use
 

What is Fair Use? 

Fair use is a provision of US copyright law that allows exceptions to an author's exclusive rights to their creative work. The Provision, Section 107 of the US Copyright Act, allows for the use of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research." Other countries have their own version of copyright law, which is important to keep in mind when the copyright holder is outside the United States.

In the United States, using copyrighted material for educational purposes does not automatically mean the use is fair. The fairness of use is determined by weighing four factors. They are:

  • Purpose and character of the use: Is the use of copyrighted material intended for scholarship, research, teaching, criticism, comment, or news reporting? The use of copyrighted material for educational purposes is generally favored over commercial use. Is the use “transformative” (has it been changed in a way that is meaningful and not simply derivative)? Significant changes to the original work are often considered fair use.
     
  • Nature of the copyrighted work: Is the copyrighted work creative or instructive? A copyrighted work that is highly creative (art, music, fiction, poetry, etc.) may be protected more strongly than an instructive work. Is the copyrighted work unpublished? Unpublished works are protected more strongly because the courts generally protect an author’s right of “first publication.”
     
  • The amount or substantiality of the use: Will only a small portion of the copyrighted work be used? Is that portion “the heart” of the copyrighted work? A quotation or detail of an image may be weighted as fair use. However, a short snippet of a song, if embodying the character of the whole, might be weighed as unfair use.
     
  • Effect of the use on market value: Will the use of copyrighted material infringe upon the original author or authors ability to benefit from their creation? Will this affect the market value of the original work? 

To determine fair use you need to weigh all of the four factors, and not all factors are weighted in the same way for each use. Generally speaking, the use of copyrighted material can be considered fair when a majority of the factors meet the threshold of fair use.

Use the Fair Use Checklist, created by Columbia University's Copyright Advisory Office,  to help determine if your use of copyrighted material is fair. 

Works cited for this section:


Permissions & Licensing
 

If you wish to use material that is not in the public domain, or you have determined that your use of a work is not covered by fair use, you will need to secure permission from the rights holder. A rights holder could be an individual author or artist, a corporation, or a cultural institution like a museum, gallery, archive or library. 

 The following are good steps to take when trying to secure permission:

  1. Identify the copyright holder. If you have found material on the open web it is often difficult to identify the true copyright holder. Likewise, sites like Flickr or Google Image Search, which bring together images from a variety of sources, may not provide true or up-to-date information about who holds the copyright of a particular image. It is best to seek out images from reputable image databases like Artstor or Alexander Street Press, or get them directly from the person or institution that holds the copyright. 
     
  2. Read their “terms of use” page. Institutions often post their “terms of use” or “rights and reproductions” information on their website to give users an understanding of the their requirements when applying for permission to use their copyrighted material.
     
  3. Write a Permissions and Licensing Request Letter. A good letter will include details about exactly what you intend to use and how your use of the original work will be conveyed. The letter should include:
    • Who you are and your affiliation with Barnard College
    • What work specifically you intend to use
    • How you intend to use the work. Is it for commercial purposes or academic? Will you be using the entire work, or only a portion? How will the work will be distributed (online, in print, in a course packet, in a single presentation)?
    • When will the work be used? For how long?
    • Why: Explain why you are contacting the person in question so they know that you believe them to be the rights holder.
       
  4. Keep a Record. Whether your permissions request is approved, ignored or denied, it is important to keep a record of your requests and the rights holder's responses. If the request is approved you may need to refer back to their response to determine if a potential new use is covered by the existing agreement.  Factors that limit use could be the duration of the use, format, size of the audience, as well for the preferred citation when crediting the rights holder.

Works cited for this section:

Columbia University, Copyright Advisory Office, Permissions & Licensing


Citations
 

What is a citation?

A citation collects most of the information necessary to identify a unique source. Citations communicate to your audience information on names, authorship, ownership, and publication of sources you use in your research project.

Why cite our sources?

  • Accurate and complete citations can help you, the author, keep track of the information you need to follow up on and develop your own research.
  • Accurate and complete citations can give your reader the information they need to verify and further explore the sources you have engaged in research, if they choose to do so.

How do we cite copyrighted sources?

  • Make sure that you have secured or confirmed permission for your use of the copyrighted work (as much as you can!).
  • Whenever possible, see if the author of the work has shared guidelines for how they would like their work to be attributed, and stick to these guidelines.
  • Cite the source in the format in which you are using and accessing the source, rather than in its original form (if that is distinct).
  • Make sure you are citing consistently---choose a style that works well with the particulars of your research. For guidelines on how to cite by citation style, see resources like Purdue OWL, and Cite Source.

Creative Commons Attribution

Creative Commons suggests following the acronym TASL when composing an attribution for a Creative Commons licensed work:

  • Title: What is the name of the material?
  • Author: Who owns the material?
  • Source: Where can I find it?
  • License: How can I use it? (Specify the Creative Commons license here)

Works cited for this section:


 

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Creative Commons License
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.