Copyright Basics
Copyright law in the United States is rooted in the desire to capture and leverage expressions of new ideas. At the same time, copyright law recognizes that the impetus to create is based on the ability to access already existing expressions of intellectual creativity and use them as platforms upon which we create anew. In addition, copyright law also provides mechanisms that allow us to use existing expressions of ideas to voice opinion, criticism, and dissent.
Faculty and students need to keep abreast of how copyright law is applied to and impacts the various ways of communicating scholarly content. This guide provides an overview of copyright law and examines issues such as fundamental principles of copyright law, copyright ownership, fair use, and other permitted uses.
The copyright information provided by the Libraries is for informational purposes only and should not be considered legal advice.
Copyright law applies to nearly all creative and intellectual works
For a work to be protected by copyright law, it must be an idea that has been expressed and fixed in some sort of medium. The expression has to be original. To be considered original, there must be a “modicum of creativity” in how it has been expressed. In other words, once you create an original work, and fix it on paper, in clay, or on the drive of your computer, so that the work can be reproduced in some format, then the work is considered copyrightable. Therefore, copyright law protects a wide and diverse array of materials. Books, journals, photographs, works of visual art and sculpture, music, sound recordings, computer programs, websites, film, architectural drawings, choreography and many other materials are within the reach of copyright law. If you can see it, read it, hear it, or watch it, it likely is captured by copyright.
Works are protected automatically, without copyright notice or registration
Copyright protectable works receive instant and automatic copyright protection at the time that they are created. U.S. law today does not require placing a notice of copyright on the work or registering the work with the U.S. Copyright Office. The law provides some important benefits if you do use the notice or register the work, but you are the copyright owner even without these formalities.
Owners hold specific rights but not all rights
The law grants to copyright owners a series or bundle of specified rights:
- Reproduction of works
- Distribution of copies
- Making of derivative works
- Public performance and display of works.
In addition, certain works of visual art have moral rights regarding the name of the artist on the work, or preventing the destruction of them.
Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works
In addition, certain works of visual art have moral rights regarding the name of the artist on the work, or preventing the destruction of them. Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works.
Author is the first copyright owner
As a general rule, the initial owner of the copyright is the person who does the creative work. If you wrote the book or took the photograph, you are the copyright owner.
Exceptions to the rule: creating a work on someone’s behalf
If you created the work as an employee, acting within the scope of your employment, then the copyright owner is your employer. In addition, if you are a freelancer, and where your contract specifies that you have created a work as a “work made for hire”, then the first owner of the copyright is the person that contracted you to create it.
Copyright can be transferred
Copyright owners can give or sell their rights to others. Even in cases of employment or where a copyright protected work was created as a “work made for hire” copyright can be assigned or transferred back to the author. In addition, rights can be transferred temporarily by contract. These contracts are often called licensing agreements. A recipient of right by way of licensing agreement only has the ability to exercise those rights that are specified directly in the agreement. At the end of the life of the licensing agreement, those rights revert back to the copyright owner.
Copyright and Publishing Agreements
In an academic setting, we are frequently asked to transfer copyright in our books and articles to publishers. It is not a requirement of publication that rights be assigned or transferred permanently to a publisher. The right to publish can be licensed to the publisher temporarily or on a non-exclusive basis. The ability to transfer or retain our copyrights is an opportunity to be good stewards of our intellectual works and maintain our intellectual legacy.
Copyright expires
The basic term of protection for works created today is for the life of the author, plus seventy years. In the case of "works made for hire", copyright lasts for the lesser of either 95 years from publication or 120 years from creation of the work. The duration rules for works created before 1978 are altogether different, and foreign works often receive distinctive treatment. Not only is the duration of copyright long but the rules are fantastically complicated. Below you will find links to a number of resources to assist in guiding you through a copyright duration question.
Copyright owners may allow public non-exclusive uses
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.
The public domain
Some works lack copyright protection, and they are freely available for use without the limits and conditions of copyright law. Copyright eventually expires too. When a work lacks copyright protection or where copyright has expires, it is said that the work enter the public domain. Works produced by the U.S. government are not copyrightable. Copyright also does not protect facts, ideas, discoveries, and methods.
Activities within fair use are not infringements
Fair use is not an infringement of copyright. It allows under certain conditions a person to use copyright protected material without permission. Fair use is an important right to use copyrighted works at the university. Fair use can allow us to clip, quote, scan, share, and make many other common uses of protected works. But not everything is within fair use. Fair use depends on a reasoned and balanced application of four factors: the purpose of the use; the nature of the work used; the amount used; and the effect of the use on the market for the original.
A more in-depth discussion of fair use may be found here.
Fair use is one of many statutory rights to use copyrighted works
Fair use is encoded in the U.S. Copyright Act, which also includes many other provisions allowing uses of works in the classroom, in libraries, and for many other purposes. These statutes, however, are highly detailed, and the right to use works is usually subject to many conditions and limitations.
Uses are also allowed with permission
If your use of a copyrighted work is not within one of the statutory exceptions, you may need to secure permission from the copyright owner. A non-exclusive permission does not need to be in writing, but a signed writing is almost always good practice. The permission may come directly from the copyright owner, or through its representative agent or copyright agency.
U.S. copyright law applies to domestic and foreign works
In general, the same principles of copyright under the domestic law of the U.S. (or of another country) apply to a work, whether the work originated in the U.S. or elsewhere. Under major multinational treaties, many countries have agreed to give copyright protection to works from most other countries of the world. Because the U.S. has joined such treaties, you should apply U.S. copyright law to most works, regardless of their country of origin.
Copyright Protection of Foreign Works
If you are in the U.S. and you are trying to determine the copyright status of a foreign created work, then the first presumption is that U.S. law applies to make that determination.
The Berne Convention, an international treaty, dictates a principle of National Treatment. National Treatment provides a form of reciprocity amongst member countries so that a foreign work will be protected in the U.S. in the same way and upon the same standard as would a work created within the U.S. Similarly, U.S. works would be given the same privilege of protection under the laws of any other member country of Berne. The U.S. in amending its laws became a member of the Berne Convention in 1988. There are now 187 countries that are members of Berne.
Thus, the second presumption is that so long as you are carrying out your substantive scholarly work in the U.S. you should apply U.S. copyright law to make your copyright determinations on your own work and the work that you may be integrating into your own as an underlying work.
Additional issues may arise such as when you work with international partners, where work is created across borders and jointly amongst collaborators, particularly where collaboration or distribution takes place online. Consult Copyright Advisory Services for further guidance on these issues. Come to Office Hours, or send a request for an appointment.
Additional Resources
Treatment of Orphan Works
Orphan works are defined as copyright protected works where you cannot identify a copyright owner or where you can identify the copyright owner but the owner cannot be located. Consider the following examples:
1. You cannot identify a copyright owner
The work itself does not have a name, and you have searched through different catalogs, databases, and other sources, according to the title or description of the work. Under copyright law, anonymous and pseudonymous works are still fully protected. Simply because you cannot find the name of the copyright owner does not mean that it is not under copyright. However you do not know whom to ask for permission.
2. You cannot locate the copyright owner
Alternatively, you have concluded that the work is protected, and you have been able to identify the original author and/or the likely copyright owner, but you simply cannot find that person or entity. No listing appears in any of the usual reference guides or directories. You also have conducted a search of the records of the U.S. Copyright Office, and you have found no current registration of a copyright claimant or any documentation assigning the copyright to a new owner. Perhaps the original copyright owner was a company or organization that ceased doing business years ago, and you have not been able to find any person or entity that currently holds the rights. Perhaps the copyright owner died, but the heirs are untraceable. The copyright, nevertheless, lives on.
3. Works released online or through social media
Because copyright runs for a significant period of time and does not require formalities such as registration or renewal to ensure that a work is still protected, many works are often divorced from the rights information necessary to seek and obtain permission. This is becoming an increasingly difficult issue as it relates to scholarly communications because many works are being released online or through social media without identification or rights data associated with the works. For scholars, journalists and other academics, it becomes increasingly difficult to authenticate sources in the online environment. And, even if you wished to use the work fairly in the context of your scholarly work, you may be hard pressed to provide adequate attribution, a necessity in exercising fair use.
Since 2005, the U.S. Copyright Office has tried on several occasions to develop policy and introduce legislation into Congress to deal with orphan works adequately. So far, none of these efforts have succeeded. To combat and manage the growing issue of orphan works within the context of your scholarly communications, you can conduct a risk-benefit analysis.
Risk-Benefit Analysis: you have diligently investigated your alternatives. You do not want to change your project, and you remain in need of the elusive copyright permission. You need to balance the benefits of using that particular material in your given project against the risks that a copyright owner may see your project, identify the materials, and assert the owner’s legal claims against you. Numerous factual circumstances may be important in this evaluation. The “benefit” may depend upon the importance of your project and the importance of using that particular material. The “risks” may depend upon whether your project will be published or available on the Internet for widespread access. You ought to investigate whether the work is registered with the U.S. Copyright Office and weigh the thoroughness of your search for the copyright owner and your quest for appropriate permission.
Undertaking this analysis can be sensitive and must be advanced with caution and with careful documentation. You may be acting to reduce the risk of liability, but you have not eliminated liability. A copyright owner may still hold rights to the material and may still bring a legal action against you, based on copyright infringement. Your good faith efforts can be helpful, but they are not necessarily protection from legal liability. Members of the Columbia University community should consult with the University Office of the General Counsel for assistance with this decision.