Copyright Essentials

The following tools can be used to determine when a copyrighted works' term ends and enters the public domain.

• Cornell University's copyright term and the public domain chat
• Sunstein Law Firm's flowchart
• Stanford University's Copyright Renewal Database, a searchable index of the copyright renewal records for books published in the US between 1923 and 1963. 
• Section 108 spinner, which shows what libraries can and cannot do in terms of reproductions for users, replacement, or preservation

Creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce are what constitute intellectual property. There are two types:

Industrial property:  inventions (patents), trademarks, industrial designs, and geographic indications (GI). The use of a GI may act as a certification that the product possesses certain qualities due to its geographical origin. For example, the appellation "Parmigiano" belongs to Parma, Italy; "Idaho" potatoes can only be sold by growers in that State; "Vidala" (Georgia) for onions; and "Washington State" for apples. Only France can manufacture and sell a wine as a "Bordeaux.") Geographical indications serve the same functions as trademarks, because like trademarks they are either source-identifiers, guarantees of quality, and/or valuable business interests.

Copyright:  literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.  Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.

Resource: Copyright Alliance's "Copyright Law."

The U.S. Constitution, in Article I, Section 8, Clause 8 (codified in the Copyright Act, United States Code Title 17), provides protection to authors for a limited time period. This benefit for authors, scholars and inventors granted by our nation's founders is the means to encourage innovation and scholarship. But after a period of protection, works move into the public domain, belonging to the people. 

Authors of creative works in a fixed medium automatically have copyright protection, unless they sign it over or sell it. The permission of the copyright holder must be sought in order to reproduce and/or distribute their work.  They may grant permission or not, for a fee or for free.

There are exemptions whereby one does not have to seek permission of the copyright holder.

• Naturally, work for which copyright has expired moves into the public domain and has no copyright; thus, it is free to use without permission. To begin to determine if copyright has expired, first consult this public domain chart  Next, as the copyright officer for assistance. For U.S. books only, if the date is between 1923 and 1977, consult this copyright renewal database at Stanford.
• Examples of things that cannot be copyrighted and thereby are in the public domain are common facts, formulae, theories, concepts, ideas, recipes, and anything published by the federal government.
• Other exemptions from securing permission can be justified if they pass the fair use test. Do not assume that an educational use is a fair use, thereby clearing you from seeking permission for distributing someone's work or clearing the Library from paying fees on behalf of your course reserves or your interlibrary loan requests that exceed copyright limits. Here is a fair use worksheet to assess whether your use is fair use.

 Resource:  history of copyright law

Fair Use is a right also, but there is no carte blanche for educators. Flex your fair use muscles, but do not over simplify or be reckless. Fair use is the right to use copyrighted material without permission and/or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question. Fair use involves a review process. Even something written by oneself for which copyright was signed away to the publisher or sold is subject to a fair use review. Avoid doing any other type of use or distribution that is outside these guidelines without first using the Fair Use Checklist.

Fair use exists in recognition that scholars build upon the work of others to create new scholarship. Thus, higher education has its exemptions via fair use under the first of 4 fair use factors "purpose of the use," but academics must not stop there in their consideration. There is no carte blanche for higher education with regard to the use of copyrighted works. Nor is it enough that no monetary profit is gained from the higher education purpose of the use of copyrighted works. It is not enough to satisfy fair use factor 1.

The fair use factors are:

1) purpose and character of the use (for educational purposes)

2) nature of the work (fiction different than factual; digital different than analog or print)

3) amount and substantiality of the portion used (thumbnails of art work, 10% of print work, film clips)

4) effect of the use on the potential market

For materials where no digital rights license is owned by the college library (or granted by the author/creator via Creative Commons), each case and each instance (each semester), has to be assessed on its own merits for fair use even if it is for a teaching situation. One will never truly know if something is illegal unless the case goes to court. "I did it this way last time," is not an assessment of fair use.

Keep an eye on fair use in the courts here using the Fair Use Index. 

Some works are not eligible for copyright protection.  Facts, ideas, concepts, principles, discoveries, formulae, lists of ingredients, lists of common facts, charts, common symbols, rules of grammar, government publications, proverbs require no permission to reproduce.

Works for which copyright has expired enter the public domain. Use this chart developed by P. B. Hirtle, Cornell University, to begin to determine when the copyright term ends and works enter into the public domain.

This ebook describes how to search for public domain materials that you can freely use. The Public Domain: How to find Copyright-free Writings, Music, Art & More.

The "work-made-for-hire" doctrine is a much nuanced area subject to much debate.  Essentially, if you are an employee of the College, working in an administrative or staff post, using the College as a site for your work and utilizing equipment and software belonging to the College, the work you create in a fixed medium belongs to the College.  The College must put it in writing if ownership (copyright) of the material is to be granted to the employee. 

Regarding instructional material and curriculum, the law stipulates that ownership remains with the institution regardless as to where it was created, unless it is in writing that it belongs to instructors. Le Moyne College is drafting a policy that will grant ownership of instructional materials to faculty. Copyright of faculty scholarship is to be determined between the professor and the publisher, unless the work is performed under a written agreement between the College, faculty member, and a third party.

Written institutional policy is crucial in this area. Copyright can also be divided among parties, but must be in writing. There is room for dispute on this controversial policy matter. The latest court rulings favor the professor, although the rulings make no mention of the "teacher's exception" where they could have easily done so. 

An interesting example is what M.I.T. has done in making all of its course materials freely available to the public. See MITOpenCourseware.