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Library Guides

Copyright

What is copyright?

Copyright is a system of legal rules designed to promote learning and culture by giving authors limited rights to control certain uses of their works, including copying, distribution, and public performance. By granting this control, the law hopes to create opportunities for authors to exploit their works commercially (traditionally through large intermediaries like publishers, movie studios, and record labels), and thereby to give an incentive for creation and publication of new creative works. Copyright applies to all kinds of creative works, from books to paintings to feature films and even software. 

While authors (and the companies who buy and exploit their rights) are the initial beneficiaries of copyright, the ultimate purpose of copyright is to promote creation and distribution of creative work to benefit the public. That’s why, while copyright provides robust protection for copyright holders, it also provides balancing rights to users of copyrighted works, who also play an important role in serving the ultimate goal of public access to a rich variety of expressive works. Libraries, schools, and other institutions with a clear public service mission have specific exceptions for their benefit, and everyone has the right to make fair use of copyrighted works without payment or permission.

Understanding this balance of rights is important for authors and users alike. Authors who know their rights can make more informed decisions about how they license others to use their works. Authors who want primarily to be read, or to permit others freely to re-use their works to make new works, can use tools like Creative Commons licenses, and avoid signing exclusive agreements with publishers who will lock their works behind paywalls. And users who understand copyright will know when their activities are privileged by fair use and other copyright limitations and exceptions, and when to seek permission to share or re-use protected works.

Finally, it is worth noting that the boundary between "authors" and "users" is actually quite porous. All authors are users of existing works, whether in their research or incorporated directly into their creations, so authors rely on users' rights as part of their own creative process. And users are also often authors of their own works, and expect some measure of legal protection for those works. The dichotomy between authors who want maximum protection and users who want maximum access is false; the law protects an ecosystem of people who inhabit multiple roles, and is (mostly) designed to distribute rights and responsibilities to everyone in a balanced way. 

Copyright is a limited monopoly: the law gives copyright holders the exclusive right to do or to authorize a handful of specific things. The public is allowed to do anything it wants with a work outside of those specific rights. For example, while copyright grants an exclusive right to perform works publicly, private performances are completely outside of the law. You can sing in the shower all you like, and it’s nobody’s business but yours.

The copyright holder’s rights are:

  • Reproduction: the right to make new copies of the work. Although this right is not limited to commercial or large scale uses, every day private copying like forwarding an email or scanning a page from a book for research is often protected by fair use.

  • Distribution: the right to transfer a copy of the work to the public by sale, rental, lease, or lending. This right is balanced by the “first sale doctrine,” which allows the owner of any lawfully-made copy to dispose of that copy however she wishes. So, the distribution right is primarily a right to distribute a particular copy for the first time; after it is sold for the first time, the copy can circulate freely, just like any ordinary object. The first sale doctrine is what allows you to buy or sell used books and records, and libraries to lend them. (There are a couple of exceptions - software and music, for example, have special rules that block rental businesses.)

  • Public performance: This right applies when a copyrighted work is performed for a group of more people than a typical circle of family and friends. Examples of works that can be “performed” include plays, movies, or songs, but public recitation of a textual work (such as a poem or story) or performance of a dance also requires permission, unless they are covered by an exception (or fair use). Many performances that take place on a university campus are technically “public,” but the law permits a core use—performances for classroom teaching—without permission. (The idea that libraries and universities always need to buy public performance rights with their videos is a common misperception of copyright.) Notably, posting a streaming video online also constitutes a public performance, since the video is transmitted to members of the public. That means distance education and other online teaching and learning activities implicate this right. Section 110 of the Copyright Act carves out a series of exceptions to the public performance right for churches, playing broadcast TV or radio in bars and restaurants, and several other common performance scenarios.

  • Public display: This is the equivalent of performance, but covers making the work visible to the public.

  • Adaptation: This is the right to make what are called “derivative works” - works that take an existing work and recast it into a new form, such as translations, film adaptations, and sequels.

In addition to these rights, there are very limited moral rights available to the authors of certain works of fine art (works made in very limited quantities, signed and numbered by the artist) - primarily the right of attribution and to prevent being associated with a version of the work that has been modified without the author’s permission. When such works have achieved “recognized stature,” the author can also prevent their destruction.

The Constitution empowers Congress to secure copyrights “for limited times,” a vision of copyright that assumes protection for any given work will one day expire. As noted elsewhere in this guide, that day has been pushed farther and farther into the future over the last several decades, to the point that nothing has entered the public domain for many years. That is set to change soon, however, as works published in 1923 will finally rise into the public domain in 2018, and from then on works from successive years will begin entering the public domain as their 95-year terms expire.

The duration of copyright is a complex subject. The chart linked to below, developed and maintained by Peter Hirtle and Cornell University, is the best handy reference for questions about specific works. Generally the most important things to know about copyright duration are:

  • Anything published in the US before 1923 will be in the public domain.
  • For works published before 1/1/1978, duration will depend on when the work was published, not when it was created, and will typically endure for 95 years after publication.
  • For works created after 1/1/1978 or unpublished as of 1/1/1978, the term of protection will depend on when the author died, and will endure for 70 years after the author’s death. But…
  • For works created after 1/1/1978 with corporate, anonymous, or pseudonymous authors, the term of protection will begin with its publication date and run for 95 years.
  • For works published before 1964, copyright had to be renewed after 28 years or else the work would rise immediately into the public domain. A 1961 Copyright Office study suggests that copyright in most works was not renewed and works rose into the public domain after 28 years. The renewal rate for books was less than 10%, for example. Musical works are an exception—they were renewed at a rate of more than 50%.

To balance the rights granted to authors, the copyright law includes a series of limitations and exceptions that allow use of copyrighted works without permission in contexts where allowing rightsholder control would frustrate other important interests. Copyright protection is also limited in time and scope, so that some kinds of works, or aspects of works, are not protected at all. These provisions are explored in more detail in the section of the LibGuide on “Using Copyrighted Works,” but this overview will describe some of the aspects of the law that favor users.

  • Subject Matter: Not everything is copyrightable! Facts, ideas, systems, inventions, methods of operation, words and short phrases - these things are either free for all (facts and ideas, generally) or else subject to other forms of protection (inventions and systems are subject to patent law, with its own complex formalities and a much shorter term of protection). Indeed, not every aspect of copyrighted works is subject to copyright protection. Facts and ideas expressed in copyrighted works can be re-used freely, so long as they are separated from the specific expression used to convey them in the protected work.
  • Term/Duration: Although the term of copyright is currently very expansive, it is still finite. And once a work enters the public domain, it’s free for all to use however they like.
  • Fair Use: A flexible and open-ended provision that allows a variety of uses of copyrighted works for new purposes such as scholarship, criticism, commentary, teaching, news reporting, and new technological uses like search engines.
  • The First Sale Doctrine: Owners of lawfully made copies of copyrighted works are free to distribute, sell, rent, lend, lease, etc., those copies without copyright holder permission. Note, though, there are some limits to this limitation for software and musical works!
  • Libraries and Archives: Section 108 of the Copyright Act provides specific rights to libraries and archives to facilitate their preservation and user access missions.
  • Public Performance: Section 110 grants a series of exceptions to the public performance right, including a protection for teachers who perform works in class.
  • De minimis use: Derived from the Latin phrase de minimis non curat lex (“the law doesn’t concern itself with trifles”), the de minimis doctrine protects “minimal” uses, which can include uses of very small portions of works, or uses that have a very small potential effect on a copyright holder’s rights. One example that might be familiar to college students: the court in Cambridge University Press v. Becker refused to consider claims of infringement brought against Georgia State University over excerpts from copyrighted works that were posted to course websites but never read by students. The court said such uses were de minimis.
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Copyright Law: A Footnote About History and Policy

It is worth saying a little bit here about the copyright law itself, separate from the practical guidance found elsewhere in this Guide. What should an educated researcher know about the law, in addition to what it allows and forbids her to do? For one thing, it is worth knowing how the law has changed over time, and how it is likely to change (if at all) in the near future.

The most prominent trend in the copyright law since its inception in the UK’s Statute of Anne in 1709 is the explosive growth in its scope, both in terms of the number of things it covers and in the extent of protection offered to covered works. The US’s first Copyright Act, passed in 1790 and (ironically) mostly a cut-and-paste of the UK law, was a fairly simple and narrow protection for books, maps, and charts, which was difficult to obtain and usually expired within the author’s lifetime. Even as recently as 1961, according to a study by the Copyright Office, most works rose into the public domain after an initial term of 28 years of protection. For almost two centuries, US copyright terms lasted less than 30 years.

Now the law sprawls across hundreds of pages of detailed provisions, covers a wide variety of works (from books to sculpture to software), attaches automatically at the moment a work is created, and usually endures for decades after the author’s death. This expansion of copyright is in part the result of “harmonization” with the laws of other countries, who have generally been more protective of authors’ rights than the US. The growth of the US creative industries relative to those in the rest of the world is another likely contributor to copyright’s expansion. When the US was a developing country best served by wide access to British and other creative works, our copyright laws were relatively lax. Once we became a world power whose copyright industries relied on strong protection at home and abroad, the US took steps to make copyright longer, stronger, and easier to obtain. 

Because copyright law is so complex, and it has traditionally effected a relatively narrow group of core interest groups (authors, publishers, record labels, and film studios on one side, and educational groups on the other), the law has been made primarily by consensus among interested parties, which Congress subsequently blesses and adopts as law. Now, with copyright the subject of intense debate amongst a broader group of stakeholders (the aforementioned content industries and educational groups, plus powerful internet and technology companies and an increasingly active and engaged community of Internet users), Congress is even more apt to stand back and wait for consensus to emerge before changing the law. Prospects for sweeping legislative reform favoring the public interest are therefore quite dim. Private arrangements like YouTube’s ContentID and modest reforms to favor business are the most likely modes of copyright reform so long as this dynamic dominates in Washington.

Speaking of private arrangements, the other major development effecting copyright law over the last few decades is the rise of licensed content. While the copyright law provides a somewhat balanced set of default rules to govern copyright holders and owners of copies of protected works, nowadays many transactions involving copyrighted works are governed by private legal arrangements called licenses. These binding contracts governing access to and use of protected works can change the rights of distributors and users in dramatic ways. Libraries provide huge swaths of academic material to their users subject to license agreements. Electronic journal content, for example, is governed by complex agreements between the publisher and the university describing who can access journal articles and what can be done with them. These agreements can provide substantially more rights to users than might exist under ordinary copyright law - to share full text with students beyond the limits of fair use, for example—but they can also constrict rights that might apply in the absence of a contract—to ingest large numbers of articles into a database for text-mining purposes, for example. These days the private law of contracts is just as important as the public law of copyright in determining the rights of authors and the public.