What is Copyright?

In the United States, copyright law protects creators of “original works of authorship,” including literary, dramatic, musical, artistic, and other intellectual works, against unlawful copying, distribution, performance, display, and derivatives (Copyright Act of 1976, 2001). In other words, when you compose any kind of work, whether it’s an alphabetical text or some sort of visual work (e.g., a picture, information graphic, or painting), copyright protects your works from theft and derivative works that you do not approve.

Why Does Copyright Matter?

Copyright protection exists from the moment a work is fixed in a tangible form of expression.  Every blog post, email, photo, research paper, written or visual work created or shared in the digital or physical world may be protected by copyright. 

Copyright laws are intended to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (United States Constitution, Article I, Section 8, Clause 8). 

Knowledge of copyright and how it can affect the use of works is an integral part of information literacy skills and your ability to use and synthesize the information you find in your research and projects (American Library Association, 2000).  

Who Owns Copyright?

In the U.S, copyright ownership belongs to the creator of the work unless the work is composed under a work for hire situation or contractual obligation where ownership rests with another person or organization.  A copyright owner can also assign their copyright to another person or organization. 

Assignment of copyright is more common in some forms of creative works than others. For example, commercial academic publishers and film production companies often require the assignment of copyright by creators or authors.

How Can I Copyright My Writing?

A work is copyright protected as soon as it is saved, recorded, or set down in a way that can be returned to at a later date.  Any paper draft saved on a computer, photo on a phone, or drawing on a napkin is protected by copyright.  

No registration is required to obtain this protection.  However, copyright registration does provide benefits in the event an author wants to protect their copyright in court.  Copyright registration can be completed online via the U.S. Copyright Office:  https://www.copyright.gov/registration/.  

Is Plagiarism Part of Copyright?

Copyright infringement and plagiarism are closely related but are not the same. Plagiarism involves misrepresenting the authorship of a work by not giving credit to the author.  For example, it would be possible to infringe on a creator’s copyright by making unauthorized copies of their works while still providing credit. In this scenario, a copyright violation is occurring, but plagiarism is not. 

Conversely, except for fine art, copyright law does not specifically list attribution as part of the exclusive rights of authors.  It could be possible to plagiarize while not infringing on copyright under an exception to copyright law, like fair use.  However, attribution and intent would be part of a judge’s evaluation of fair use and would always contribute to a stronger argument.  

What Does Copyright Protect?

Copyright protection extends to “original works of authorship that are fixed in any tangible medium of expression now known or later developed” (Copyright Act of 1976, 2001).  Section 102 of the Copyright Act provides a list of included categories:

• Literature
• Music and lyrics
• Drama
• Pantomime and dance
• Pictures, graphics, sculpture
• Films and audio-visual works
• Sound recordings
• Architecture
• Software

What Works are Not Protected by Copyright?

Facts, ideas, procedures, processes, methods, concepts, and useful objects are not protected by copyright law.  Works by the U.S. Federal Government are also excluded from copyright protection and immediately fall into the public domain.  However, works created by third parties under government contract and by state governments, for example, may be protected by copyright.

How Long Does Copyright Last?

Copyright protection exists from the moment a work is fixed in a tangible form of expression (This could include a DVD, CD, even a napkin with writing on it) and lasts for the life of the author plus 70 years.

The current duration of copyright was set by the 1998 Copyright Term Extension Act and applies to works created on or after 1978. The protected status of works created until 1989 varies in accordance with how they were published, registered, and renewed (Hirtle, 2022). Cornell Libraries maintains a useful chart for determining the copyright protection works of any publication date called ‘Copyright Term and the Public Domain in the United States’.

Public Domain

When copyright protection expires, the work falls into the public domain where it can be used by anyone for any purpose. Copyright is expired for material published over 95 years ago. Unpublished materials, like diaries and letters, are protected for the life of the author plus 70 years regardless of their creation date. 

The Public Domain is a state of belonging to the public and not being protected by copyright law. Works in the public domain are those for which copyright protection has

• Expired,
• Been forfeited, or 
• Was inapplicable.  

They can be copied, distributed, performed and displayed without seeking permissions or applying an exception under copyright law. For example, a book published in the U.S. in 1920 would be in the public domain because copyright protection has expired; U.S. Federal Government publications fall immediately into the public domain because copyright protection does not apply.  

Is Copyright International?

Copyright law and duration varies per country. However, several countries have worked together to create international agreements that align policies across borders. Foreign works are, for the most part, protected for the same term as works published within the user’s country for all adopters of the Berne Convention’s Protection of Literary and Artistic Works (n.d.) and signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (World Trade Organization, n.d.). The U.S. is both an adopter of the Berne Convention and a signatory of the TRIPS agreement.

The Berne Convention is administered by the World Intellectual Property Organization that provides resources and a list of members:  https://www.wipo.int/treaties/en/ip/berne/.  The TRIPS Agreement is overseen by the World Trade Organization, that provides similar resources:  https://www.wto.org/english/tratop_e/trips_e/trips_e.htm.  

Using Copyrighted Material

Copyrighted materials can be shared, used to create new works, or included as components of new projects in several ways:

• By linking to openly available online material
• By obtaining permissions from the rights holder
• By using material in accordance with an existing license
• By using material in accordance with an exception in copyright law

Obtaining Permissions

The first step to obtaining permissions is identifying the copyright owner.  Except in situations of work for hire, the initial copyright owner is the creator of a work.  However, creators will sometimes assign their copyright to another person or organization.  Only the copyright owner, or individuals working on their behalf, can grant permission to use copyrighted work in a way that is not allowed by copyright law.

In printed material, and in films, the copyright owner will often be identified via a copyright notice.  A copyright owner may also be identified via a search of the United States Copyright Office Copyright Catalog.  

Permissions can take many forms depending on the copyright owner. Larger organizations like publishing and production companies, who have obtained copyright assignment from creators, may have dedicated permissions departments or automated permissions processes that result in detailed and complex license contracts.  Alternately, a website or content creator may make themselves directly available for permissions requests and respond in an informal message.

Types of Copyright/Existing licenses

A use of copyrighted material may also happen under an existing license.  Many websites and databases outline what uses of content are permitted in their terms and conditions or conditions of use statements.  These terms and conditions may permit the use of material in excess of what copyright law normally allows.

Many content creators are also adopting open licenses when releasing their works.  An example open licensing schema that creators can use is Creative Commons.  Creative Commons offers a selection of licenses that copyright owners can choose to communicate permitted uses of their works (What we do, n.d.):  https://creativecommons.org/share-your-work/. 

Copyright Exceptions

Copyright law includes description of numerous activities that are not considered an infringement of the copyright owner’s exclusive rights to copy, distribute, perform, display or create derivatives.  For example, section 110 pertains to how faculty may use copyrighted works for instruction, and section 108 addresses how libraries can use copyrighted works in providing services.

The most expansive exception in copyright law is fair use. The Fair Use Doctrine (section 107 of Copyright Act of 1976) is based on a history of judicial decisions that recognized some unauthorized uses of copyrighted materials were “fair uses.”  

The Fair Use Doctrine contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research (Copyright Act of 1976, 2001). It also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

Fair use enables copyright to balance the needs of creators and users to “promote the Progress of Science and useful Arts” (United States Constitution, Art.I, § 8, Clause 8) and ensure that copyright does not violate the First Amendment (Center for Social Media, 2010, p.5).

Fair use is considered an argument that can only be proved by a judge in a court of law.  A fair use argument must take into account all four factors; a strong argument for one factor will not guarantee a strong fair use argument.