Creative Commons for Educators and Librarians/Chapter 2

 2 

 

Copyright Law

 

Creative Commons licenses do not replace copyright. They are built on top of it. The default of “all rights reserved” copyright means that all rights to copy and adapt a work are reserved by the author or creator (with some important exceptions that you will learn about shortly). By contrast, Creative Commons licenses adopt a “some rights reserved” approach, enabling authors or creators to free up their works for reuse by the public under certain conditions. To understand how Creative Commons licenses work, it is important that you have a basic understanding of copyright.

This chapter has five sections:

1. Copyright Basics
2. Global Aspects of Copyright
3. The Public Domain
4. Exceptions and Limitations of Copyright
5. Additional Resources

This chapter is important because Creative Commons licenses and public domain tools depend on copyright in order to work. While some aspects of copyright law have been harmonized around the world, the laws of copyright generally vary—sometimes dramatically—from country to country. The information contained in this chapter is not intended to be exhaustive or to cover all aspects of the complex laws of copyright around the world, or even every aspect of copyright that may impact how the CC licenses operate in a particular situation. It is intended to provide an overview of the basic concepts that are most important for an understanding of how Creative Commons licenses operate.

 

2.1 | COPYRIGHT BASICS
Is copyright confusing to you? Let’s get some clarity by understanding its history and purpose.

 

THE BIG QUESTION: WHY IT MATTERS
Why do we have laws that restrict the copying and sharing of creative work? (Note: A “creative work” can be anything that is an original work. These can range from novels, poems, and plays to movies, TV shows, and videos; to songs and other musical compositions; to paintings, drawings, and sculptures; to all sorts of books, articles, and essays; computer programs; cartoons and comic books; and even the drawings our children make and our own jottings on a napkin. Anything we write, film, or record is a “creative work” as long as it is an original product and is fixed in a tangible form or medium.) And how do laws that restrict the copying of creative work function in the context of the Internet, where nearly everything we do involves making a copy?

Copyright law is an important area of law, one that reaches into nearly every facet of our lives, whether we know it or not. Aspects of our lives that in some instances are not regulated by copyright—like reading a physical book—become regulated by copyright when technology is used to share the same book by posting it to the Internet. Because almost everything we do online involves making a copy, copyright has become a regular feature in our lives.

 

LEARNING OUTCOMES

• Trace the basic history of copyright
• Explain the purpose of copyright
• Explain how copyright is automatic
• Explain general copyright terms

 

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
Think back to a time when you invested significant effort in a creative project. What was your motivation for doing so? Did you know at the time that you were creating a work which is very likely protected by copyright, which restricts most reuses of that work by others without your permission? Did knowing that, or would knowing that, have made a difference to you? If so, why?

 

Acquiring Essential Knowledge

You might not realize it, but copyright law is as integral to your daily life as local traffic laws. Copyright law is the area of law that limits how others may use the original works of authors (or creators, as we often call them)—works spanning the spectrum from novels and operas, to cat videos, to scribbles on a napkin.

Although copyright laws vary from country to country, there are certain commonalities among these laws globally. This is largely due to international treaties. These treaties are explained in detail in section 2.2 “Global Aspects of Copyright.”

There are some important fundamentals you need to be aware of regarding what is copyrightable, as well as who controls the rights and can grant permission to reuse a copyrighted work.

1. Copyright grants a set of exclusive rights to creators, which means that no one else can copy, distribute, perform, adapt, or otherwise use their work in violation of those exclusive rights. This gives creators the means to control the use of their works by others, thereby incentivizing them to create new works in the first place. The person who controls the rights, however, may not always be the author. It is important to understand who controls the exclusive rights granted by copyright in order to understand who has authority to grant permissions to others to reuse the work (e. g., by adding a CC license to the work). For example:
   • Work created in the course of your employment may be subject to differing degrees of employer ownership based on your jurisdiction. Australia, Japan, the United Kingdom, and the United States adhere to some form of a doctrine commonly known as “work for hire.” This doctrine generally provides that if you have created a copyrightable work within the scope of your employment, the employer is the owner of, and controls the economic rights in the copyrighted work, even though you are the author and may retain your moral rights.
   • Independent contractors may or may not own and control copyright in the works they create in that capacity—this determination almost always depends on the terms of the contract between you and the organization that engaged you to perform the work, even though you are the author and may have moral rights.
   • Teachers, university faculty, and learners may or may not own and control copyright in the works they create in those capacities—that determination will depend on certain laws (such as work for hire in some instances) and on the terms of the employment or contractor agreement, university or school policies, and terms of enrollment at the particular institution, even though they are the creators and may have moral rights.
   • If you have co-created an original work that is subject to copyright, you may be a joint owner, not an exclusive owner, of the rights granted by copyright law. Joint ownership generally allows all owners to exercise the exclusive rights granted by law, but requires the owners to be accountable to one another for certain uses they make of their joint work.
   • Ownership and control of the rights afforded by copyright laws are complicated. For more information, please see the “Additional Resources” section at the end of this chapter.
2. Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas. This may sound simple, but unfortunately it is not. The difference between an idea and the expression of that idea can be tricky, but it’s also extremely important to understand. While copyright law gives creators control over the expression of an idea, it does not allow the copyright holder to own or exclusively control the idea itself.

 !  NOTE The combination of very long terms of copyright protection with automatic entry into the copyright system has created a massive amount of “orphan works”—copyrighted works for which the copyright holder is unknown or impossible to locate.

3. As a general rule, copyright is automatic the moment a work is fixed in a tangible medium. For example, you have a copyright as soon as you type the first stanza of your poem or record a song in most countries. Registering your copyright with a local copyright authority allows you to officially record your authorship, and in some countries this may be necessary to enforce your rights or might provide you with certain other advantages. But generally speaking, you do not have to register your work to become a copyright holder.
4. Copyright protection lasts a long time. We will say more about this later, but for now it’s enough to know that copyright lasts a long time, often many decades after the creator dies.

 

A SIMPLE HISTORY OF COPYRIGHT

Arguably, the world’s most important early copyright law was enacted in 1710 in England: the Statute of Anne, “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.”^[1] This law gave book publishers fourteen years of legal protection from the copying of their books by others.

Since then, the scope of the exclusive rights granted under copyright has expanded. Today, copyright law extends far beyond books to cover nearly anything with even a fragment of creativity or originality created by humans.

Additionally, the duration of the exclusive rights has also expanded. Today, in many parts of the world, the term of copyright granted an individual creator is the life of the creator plus an additional fifty years. See the “Worldwide Map of Copyright Term Length” (figure 2.3) in section 2.2 “Global Aspects of Copyright” (below) for more details about the duration of copyright and its variances worldwide.

And finally, since the Statute of Anne, copyright treaties have been signed by many countries. The result is that copyright laws have been harmonized to some degree around the world. You will learn more about the most important treaties and how copyright laws work around the world in section 2.2.

 

THE PURPOSE OF COPYRIGHT
There are two primary rationales for copyright law, though rationales do vary among legal traditions. The two rationales are:

• Utilitarian: Under this rationale, copyright is designed to provide an incentive to creators. The aim is to encourage the creation of new works.
• Author’s rights: Under this rationale, copyright is primarily intended to ensure attribution for authors and preserve the integrity of creative works. The aim is to recognize and protect the deep connection that authors have with their creative works. (You can learn more about author’s rights in the “Additional Resources” section at the end of this chapter.)

While different legal systems identify more strongly with one or the other of these rationales, or have other justifications particular to their legal traditions, many copyright systems are influenced by and draw from both rationales (due, in large part, to historical reasons that are outside the scope of this material). Do one or both of these justifications resonate with you? What other reasons do you believe support or don’t support the granting of exclusive rights to the creators of original works?

Drawing on the author’s rights tradition, most countries also have moral rights that protect, sometimes indefinitely, the bond between authors and their creative output. Moral rights are distinct from the rights granted to copyright holders to restrict others from economically exploiting their works, but they are closely connected.

The two most common types of moral rights are the right to be recognized as the author of the work (known traditionally as the “right of paternity”) and the right to protect the work’s integrity (generally, the right to object to distortion of or the introduction of undesired changes to the work).

Not all countries have moral rights, but in some parts of the world they are considered so integral that they cannot be licensed away or waived by creators, and they last indefinitely.

 

HOW COPYRIGHT WORKS: A PRIMER
Copyright applies to works of original authorship, which means works that are unique and not a copy of someone else’s work, and most of the time this requires the works’ fixation in a tangible medium (written down, recorded, saved to your computer, etc.).

Copyright law establishes the basic terms of use that apply automatically to these original works. These terms give the creator or owner of copyright certain exclusive rights, while also recognizing that users have certain rights to use these works without the need for a license or permission.

 

What’s copyrightable?
In countries that have signed on to the major copyright treaties described in more detail in section 2.2, copyright exists in the following general categories of works, though sometimes special rules apply on a country-by-country basis. A specific country’s copyright laws almost always further specify different

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Watch Copy (aka copyright) Tells the Story of His Life from #FixCopyright for a short history of copyright and its relation to creativity and sharing. https://www.youtube.com/watch?v=0fdUDecJ6jc | CC BY 3.0

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types of works within each category. Can you think of a type of work within each category?

• Literary, artistic, musical, and dramatic works
• Translations, adaptations, arrangements, and alterations of literary, artistic, and musical works
• Collections of literary and artistic works^[2]
• Additionally, depending on the country, original works of authorship may also include, among others:
  • Applied art and industrial designs and models
  • Computer software

 

What are the exclusive rights granted?
Creators who have copyright have exclusive rights to control certain uses of their works by others, such as the following (note that other rights may exist depending on the country):

• to make copies of their works
• to publicly perform and communicate their works to the public, including via broadcast
• to make adaptations and arrangements of their works (Adaptations can include translations.)

This means that if you own the copyright to a particular book, no one else can copy or adapt that book without your permission (with important caveats, which we will get to later in section 2.3 “Global Aspects of Copyright”). Keep in mind that there is an important difference between being the copyright holder of a novel and controlling how a particular authorized copy of the novel is used. While the copyright owner owns the exclusive rights to make copies of the novel, the person who owns a particular physical copy of that novel can generally do what they want with it, such as loan it to a friend or sell it to a used bookstore.

One of the exclusive rights of copyright is the right to adapt a work. An adaptation (or a “derivative work,” as it is sometimes called) is a new work based on a preexisting work. In some countries, the term derivative work is used to describe changes that include but are not limited to “adaptations” as described in the Berne Convention for the Protection of Literary and Artistic Works, which uses both of these terms in different articles. For the purposes of this book and for understanding how CC licenses and public domain tools work, the terms derivative work and adaptation are interchangeable and denote a work that has been created from a preexisting work through changes that can only be made with the permission of the copyright holder. It is important to note that not all changes to an existing work require permission. Generally, a modification rises to the level of an adaptation or derivative when the modified work is based on the prior work and manifests sufficient new creativity to be copyrightable, such as a translation of a novel from one language to another, or the creation of a screenplay based on a novel.

Copyright owners often grant permission to others to adapt their work. Adaptations are entitled to their own copyright, but that protection only applies to the new elements that are particular to the adaptation. For example, if the author of a poem gives someone permission to make an adaptation, that person may rearrange stanzas, add new stanzas, and change some of the wording, among other things. Generally, the original author retains all copyright in the elements of the poem that remain in the adaptation, and the person adapting the poem has a copyright in their new contributions to the adapted poem. Creating a derivative work does not eliminate the copyright held by the creator of the preexisting work.

 

A special note about additional exclusive rights
There are two other categories of rights that are important to understand because the rights are licensed and referenced by Creative Commons licenses and public domain tools:

• Moral rights: As mentioned above, moral rights are an integral feature of many countries’ copyright laws. These rights are recognized in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works—described in more detail in section 2.2—and are integrated in the laws of all treaty signatories to some extent. Creative Commons licenses and legal tools account for these moral rights, and the reality is that they cannot be waived or licensed in many countries, even though other exclusive economic rights are waivable or licensable.
• Similar and related rights (including rights known in many countries as “neighboring rights”): Closely related to copyright are similar and related rights. These are rights that relate to copyrighted works and grant additional exclusive rights beyond the basic rights granted authors that were described above. Some of these rights are governed by international treaties, but they also vary country by country. Generally, these rights are designed to give some “copyright-like” rights to those who are not themselves the author but are involved in communicating the work to the public, for example, broadcasters and performers. Some countries like Japan have established these rights as part of copyright itself, while other countries treat these rights separately from, though closely related to, copyright.
  • The term Similar Rights is used to describe these similar and related rights in CC licenses and CC0, as you will learn in the next chapter in section 3.2.
  • An in-depth discussion of these rights is beyond the scope of this unit. What is important to be aware of is that they exist, and that Creative Commons licenses and public domain tools cover these rights, thereby allowing those who have such rights to use CC tools to give the public permission to use works in ways that would otherwise violate those rights.

 

Does the public have any right to use copyrighted works that do not violate the exclusive rights of creators?
All countries that have signed on to major international treaties grant the public some rights to use copyrighted works without permission, and without violating the exclusive rights given creators. These are generally called “exceptions and limitations” to copyright. Many countries itemize the specific exceptions and limitations on which the public may rely, while some countries have flexible exceptions and limitations such as the concept of “fair use” in the United States, “fair dealing” in some Commonwealth countries, and education-specific exceptions and limitations in many other parts of the world, including the Global South. Exploring these concepts in detail is reserved for section 2.4 “Exceptions and Limitations of Copyright.” What is important to know is that copyright law does not require permission from the creator for every use of a copyrighted work—some uses are permitted as a matter of copyright policy, which balances the sometimes competing interests of the copyright owner and the public.

 

What else should I know about copyright?
As noted at the beginning of this chapter, copyright is complex and varies around the world. This chapter serves as a general introduction to its central concepts. There are some concepts, such as (1) liability and remedies, (2) licensing and transfer, and (3) termination of copyright transfers and licenses, that you should be aware of because you are likely to encounter them at some point. You will find a comprehensive explanation of these concepts in the “Additional Resources” section at the end of this chapter.

 

Distinguishing Copyright from Other Types of Intellectual Property
Intellectual property is the term used for rights—established by law—that empower creators to restrict others from using their creative works. Copyright is one type of intellectual property, but there are many others. To help understand copyright, it is important to have a basic understanding of at least two other types of intellectual property rights and the laws that protect those rights.

• Trademark law generally protects the public from being confused about the source of a good, service, or establishment. The holder of a trademark is generally allowed to prevent uses of its trademark by others if the public will be confused. Examples of trademarks are the golden arches used by McDonald’s and the brand name Coca-Cola. Trademark law helps producers of goods and services protect their reputation, and it protects the public by giving them a simple way to differentiate between similar products and services.
• Patent law gives inventors a time-limited monopoly to their inventions—things like mousetraps or new mobile phone technology. Patents typically give inventors the exclusive right to make, have made, use, have used, offer for sale, sell, have sold, or import patentable inventions.

Other types of intellectual property rights include trade secrets, publicity rights, and moral rights, to give just a few examples.

 

Final Remarks
Digital technology has made it easier than ever to copy and reuse works that others have created, and it has made it easier than ever to create and share your own work. In short, copyright is everywhere. Since nearly every use of a work

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For a brief introduction to the different types of intellectual property, watch the three-minute video How to Register a Trademark (Canada): Trademarks, Patents and Copyrights – What’s the Difference? https://www.youtube.com/watch?v=IVYAOy466vs | CC BY 3.0

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online involves making a copy, copyright law plays a role in nearly everything we do online.

 

2.2 | GLOBAL ASPECTS OF COPYRIGHT
Copyright laws vary from country to country, yet we operate in a world where media is global. Over time, there has been an effort to standardize copyright laws around the globe.

FIGURE 2.1 “MG_0033”
Photo from Flickr: flickr.com/photos/48656755@N00/4188202128
Author: pedist | CC BY 2.0 | Desaturated from original

 

LEARNING OUTCOMES

• Learn how the copyright laws of your country may differ from those of other countries
• Identify major international treaties and efforts to harmonize copyright laws around the world

 

THE BIG QUESTION: WHY IT MATTERS
Although copyright laws differ from country to country, the Internet has made global distribution and sharing of copyrightable works possible with just the click of a button. What does this mean for you, when you share your works on the Internet and use works published by others outside your country? What law applies to a video taken by someone from India during their travels in Kenya and then posted to YouTube? What about when that video is watched or downloaded by someone in Canada?

Copyright law is locally implemented by every country around the world. In an effort to minimize complexity, efforts have been undertaken to harmonize some of the basic elements of how copyright works across the globe.

 

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
When you publish or reuse something online, have you ever thought about what law applies to you? Does it make sense to you that different people should have different limits to what they can do with your work based on their geographic location? Why or why not?

 

Acquiring Essential Knowledge: Introduction to the Global Copyright System
INTERNATIONAL LAWS
Every country has its own copyright laws, but over the years there has been extensive global harmonization of copyright laws through treaties and multilateral and bilateral trade agreements. These treaties and agreements establish minimum standards for all participating countries, which then enact or amend their own laws in order to conform to the agreed-upon limits. This system leaves room for local variations.

These treaties and agreements are negotiated in various forums: the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), and in private negotiations between countries.

One of the most significant international agreements on copyright law is the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”), concluded in 1886. The Berne Convention has since been revised and amended on several occasions. WIPO serves as the administrator of the treaty and its revisions and amendments, and is the depository for official instruments of accession to and ratification of the treaty. Today, 177 countries (as of October 17, 2019) have signed the Berne Convention. This treaty (as amended and revised) lays out several fundamental principles upon which all the participating countries have agreed. One of these principles is that copyright must be granted automatically—that is, there must be no legal formalities required to obtain copyright protection (for example, the national laws of the signatories cannot require you to register or pay for your copyright as a

FIGURE 2.2 World map showing the parties
to the Berne convention, 2012

The signatories of the Berne Convention for the
Protection of Literary and Artistic Works, as of 2012

Figure from Wikimedia Commons:
https:commons.wikimedia.org/wiki/File:Berne_Convention.png
CC BY-SA 3.0 | Desaturated from original

condition for receiving copyright protection). In general, the Berne Convention as revised and amended also requires that all countries give foreign works the same protection they give to works created within their borders, assuming the other country is a signatory. Figure 2.2 is a map showing (in dark gray) the signatories to the Berne Convention as of 2012.

Additionally, the Berne Convention sets minimum standards—default rules—for the duration of copyright protection for creative works, though some exceptions exist, depending on the subject matter. The Berne Convention’s standards for copyright protection dictate a minimum term of the life of the author plus 50 years. Because the Berne Convention sets minimums only, several countries have established longer terms of copyright for individual creators, such as “life of the author plus 70 years” or “life of the author plus 100 years.” You can review the Wikipedia article on “Copyright Term” (licensed CC BY-SA 3.0, available at https://en.wikipedia.org/wiki/Copyright_term) and view the page that lists the duration of copyright based on country (also licensed CC BY-SA 3.0, available at https://en.wikipedia.org/wiki/List_of_countries%27_copyright_lengths). The map in figure 2.3 shows the status of copyright duration around the world as of 2012.

In addition to the Berne Convention, several other international agreements have further harmonized copyright rules around the world.^[3]

FIGURE 2.3 Worldwide map of copyright term length

Figure from Wikimedia Commons:
https://commons.wikimedia.org/wiki/File:World_copyright_terms.svg
Author: Balfour Smith, Canuckguy, Badseed, Martsniez
Original image by Balfour Smith at Duke University
CC BY 3.0 | Desaturated from original

 

NATIONAL LAWS
Although an international framework exists because of the Berne Convention and other treaties and agreements, copyright law is actually enacted and enforced through national laws. Those laws are supported by national copyright offices, which in turn support copyright holders, allow for registration, and provide interpretative guidance. As mentioned, while there has been a major effort to create minimum standards for copyright across the globe, countries still have a significant amount of discretion as to how they meet the requirements imposed by the various treaties and agreements. This means that the details of copyright law still vary quite a bit from country to country.

 

Which nation’s law applies to my use of a work restricted by copyright?
A common question of copyright creators and users of their works is which nation’s copyright law applies to a particular use of a particular work. Generally, the rule of territoriality applies: national laws are limited in their reach to activities taking place within that country. This also means that generally speaking, the law of the country where a work is used applies to that particular use. If you are distributing a book in a particular country, then the law of the country where you are distributing the book generally applies.

This is true even in the era of the Internet, though it is much harder to apply. For example, if you are a Canadian citizen traveling to Germany and using a copyrighted work in your PowerPoint presentation, then German copyright law normally applies to your use.

It can be complicated to determine which national law applies in any given case. This complexity is one of the benefits of Creative Commons licenses, which are designed to be enforceable everywhere.

 

Final Remarks
Even though global copyright treaties and agreements exist, there is no one “international copyright law.” Different countries have different standards for what is protected by copyright, how long copyright lasts and what it restricts, and what penalties apply when it is infringed.

 

2.3 | THE PUBLIC DOMAIN
The “public domain” consists of creative works that are not subject to copyright. This is the enormous pool of publicly available material which circulates freely, and from which new creative works and knowledge may be built. Figure 2.4 shows a still from the 1902 French film Le Voyage dans la lune (A Trip to the Moon), which is now in the public domain.

FIGURE 2.4
A still from the 1902 film
Le Voyage dans la Lune
(A Trip to the Moon)

Image from Wikimedia Commons:
https://commons.wikimedia.org/wiki/File:Melies_color_Voyage_dans_la_lune.jpg
Author: Georges Méliès
A work in the public domain

LEARNING OUTCOMES

• Explain what the public domain is
• Communicate the value of the public domain

 

THE BIG QUESTION: WHY IT MATTERS
Why is it important that works eventually fall out of copyright? Are there any works that do not qualify for copyright protection and may be freely used?

A critical aspect of copyright law is that the protection it provides does not last forever. After a set term, the copyright expires and the work enters the public domain for everyone to copy, adapt, and share. Likewise, there are certain types of works that fall outside the scope of copyright.

 

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
Have you ever seen ancient Egyptian sculptures in real life? Have you ever listened to a Beethoven symphony? Have you ever read Tolstoy’s novel War and Peace? These works are in the public domain. What other public domain works have you enjoyed in your lifetime? Have you ever created something new using a work in the public domain?

 

Acquiring Essential Knowledge Despite the expansive reach of copyright, there is still a rich (and growing) public domain full of works which are free from copyright. Works enter the public domain in one of four ways:

 !  NOTE Moral rights may continue to exist in works that have otherwise entered the public domain. See section 2.1 “Copyright Basics.”

1. The copyright expires.

   While copyright terms are longer than ever before, they are not in­finite. In most countries, the term of an individual’s copyright expires 50 years after her death. In some countries, the term is longer and can be up to 100 years after the author dies. Review the map in figure 2.3 (earlier in this chapter) for an overview of copyright terms around the world.

2. The work was never entitled to copyright protection.

   Copyright covers vast amounts of content created by authors, but certain categories of works fall outside the scope of copyright. For example, works that are purely functional are not copyrightable, like the design of a screw. The Berne Convention identifies additional categories that

FIGURE 2.5 Creative Commons CC0 Icon

The CC icons are visual symbols that convey
the basic permissions associated with a
particular type of CC license or tool.

Available for download at
https://creativecommons.org/about/downloads

cannot be copyrighted, such as official texts of a legislative, administrative, and legal nature. Furthermore, in some countries, works created by government employees are excluded from copyright protection and are not eligible for copyright. Facts and ideas are never copyrightable.

3. The creator dedicates the work to the public domain before its copyright has expired.

   In most parts of the world, a creator can decide to forego the protections of copyright and dedicate their work to the public domain. Creative Commons has a legal tool called CC0 (“CC Zero”) Public Domain Dedication that helps authors put their works into the worldwide public domain to the greatest extent possible. You’ll learn more about this tool (and other Creative Commons legal tools) later in this book.

4. The copyright holder failed to comply with the formalities required to acquire or maintain their copyright.
   Today in most countries, there are no formal requirements to acquire or renew copyright protection over a work. This was not always the case, however, and many works have entered the public domain over the years because a creator failed to adhere to these formalities.

 

WHAT CAN YOU DO WITH A WORK THAT IS IN THE PUBLIC DOMAIN?
You can do almost anything, but it depends on the scope and duration of copyright protection in the particular country where the work is used. Depending on the country, for example, a work in the public domain may still be covered by moral rights that last beyond the duration of copyright. It’s also possible that a work is in the public domain in one country but is still under copyright in another country. This means you may not be able to use the work freely where copyright still applies.

 

AUTHOR CREDIT AND THE PUBLIC DOMAIN

Even though it may not be legally required in every country, and especially in those countries where moral rights do not exist after the term of copyright expires, there are many benefits to identifying and giving credit to the original creators, even after their work has entered the public domain. Many communities have adopted norms, which are accepted standards for crediting the authors and the treatment of works in the public domain. Creative Commons has created public domain guidelines that can be used by communities to create their own norms. You can review the CC guidelines at https://wiki.creativecommons.org/wiki/Public_Domain_Guidelines. Can you think of a reason why it might be helpful to give credit to an author whose work is in the public domain? Can you think of why norms should be encouraged when public domain works are reused?

 

FINDING WORKS IN THE PUBLIC DOMAIN
With millions of creative works whose copyright has expired—and many more added regularly with tools like the CC0 Public Domain Dedication—the public domain is a vast treasure trove of content.

Among the sites that host works in the public domain are Project Gutenberg, Public Domain Review, Digital Public Library of America, Wikimedia Commons, Internet Archive, Library of Congress, Flickr, and the Rijksmuseum. The CC Search tool (https://search.creativecommons.org/) is another way to find public domain material.

It is not always easy to identify whether a work is in the public domain (though there are many resources available to help). As we learned, copyright protection is automatic, so the absence of the copyright symbol “©” does not mean a work is in the public domain. In addition to its CC0 Public Domain Dedication for creators, Creative Commons also has a tool called the Public

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 !  NOTE A work that is in the public domain for purposes of copyright law may still be subject to other intellectual property restrictions. For example, a story that is in the public domain may have a trademarked brand on the cover associated with the publisher of the book. Trademark protection is independent of copyright protection and may still exist even though the work is in the public domain as a matter of copyright. Also, once a creator uses a public domain work to turn it into a new work, the creator will have copyright on the portions of their new work that are original to them. As an example, the creator of a film adaptation based on a novel in the public domain will have copyright protection over the film, but not the underlying novel.

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Domain Mark (https://creativecommons.org/share-your-work/public-domain/pdm), which is designed to label works whose copyright has expired everywhere in the world, so that reusers can easily identify those works as being in the worldwide public domain. As of 2016, CC’s public domain tools were used on more than 90 million works.

 

Final Remarks
A healthy public domain is crucial to preserving our cultural heritage, inspiring new generations of creators, and increasing human knowledge. Because the scope and duration of copyright have grown so much over the years, it can be easy to forget that the public domain exists at all. But the public domain is a critical part of the bargain of copyright and works in the public domain are incredible resources that belong to all of us.

 

2.4 | EXCEPTIONS AND LIMITATIONS TO COPYRIGHT
The limitations and exceptions built into copyright, including “fair use” and “fair dealing” in some parts of the world, were designed to ensure that the rights of the public were not unduly restricted by copyright.

 

THE BIG QUESTION: WHY IT MATTERS
What would the world look like if copyright had no limits to what it prevented you from doing with copyrighted works?

Imagine resorting to Google’s search engine on your laptop or smartphone to settle a disagreement with a friend about some bit of trivia. You type in your search query, and Google comes up empty. You then learn that a court has required Google to delete its entire web index because it never entered into copyright agreements with each individual author of each individual page on the web. By indexing a web page and showing the public a snippet of the contents in their search results, the court has declared that Google violates the copyrights of hundreds of millions of people and can no longer show those search results.

Fortunately, thanks to the exceptions and limitations built into copyright laws in much of the world, including the fair use doctrine under U. S. copyright law, this hypothetical scenario is unlikely to become reality in most countries. This is one of many illustrations that show why it is so important that copyright has built-in limitations and exceptions.

 

LEARNING OUTCOMES

• State what limitations and exceptions to copyright are and why they exist
• Name a few common exceptions and limitations to copyright

 

PERSONAL REFLECTION: WHY IT MATTERS TO YOU
Have you ever made a copy of a creative work? Can you recall a time when you were studying and you included properly cited quotations in a research paper you wrote? Can you think of a way an exception or limitation to copyright has benefited you?

 

Acquiring Essential Knowledge
Copyright is not absolute. There are some uses of copyrighted works that do not require permission. These uses are limitations on the exclusive rights normally granted to copyright holders and are known as “exceptions and limitations” to copyright.

Fair use, fair dealing, and other exceptions and limitations to copyright are an extremely important part of copyright design. Some countries afford exceptions and limitations to copyright, such as fair dealing, while other countries do not offer them at all.^[4] If your use of another person’s copyrighted work is “fair use” or falls within another exception or limitation to copyright, then you are not infringing that creator’s copyright.

When legislators created copyright protections, they realized that allowing copyright to restrict all the possible uses of creative works could be highly problematic. For example, how could scholars and critics write about plays, books, movies, or other artworks without quoting from them? (It would be extremely difficult.) And would copyright holders be inclined to provide licenses or other permission to people whose reviews of their works might be negative? (Probably not.)

For this and a range of other reasons, certain uses are explicitly carved out from copyright to widely different degrees depending on the jurisdiction—including uses for the purposes of criticism, commentary, news reporting, teaching, scholarship, research, parody, and access for the visually impaired. The use of copyrighted works—or portions of those works—for these purposes is not an infringement of those works’ copyright when an exception or limitation to copyright applies. These uses are known as “fair use” or “fair dealing” in some parts of the world.

The Berne Convention first established the concept of “fair use” by providing the following in Article 9, section 2. This is known as the “three-step” test, and has been adopted in some form in several other treaties:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (emphasis added)

For more information about the scope and use of the three-step test, read the short primer published by the Electronic Frontier Foundation at https://www.eff.org/files/filenode/three-step_test_fnl.pdf.

The exceptions and limitations to copyright vary by country. There are global discussions around how to harmonize them. A World Intellectual Property Organization study (https://www.wipo.int/edocs/mdocs/copyright/en/sccr_30/sccr_30_3.pdf) by Kenneth Crews compares the copyright exceptions and limitations for libraries in many countries around the world.

Generally speaking, there are two main ways in which limitations and exceptions are written into copyright law. The first is by listing specific activities that are excluded from the reach of copyright. For example, Japanese copyright law has a specific exemption allowing classroom broadcasts of copyrighted material. This approach has the benefit of providing clarity about precisely what uses by the public are allowed and are not considered infringing. However, it can also be limiting because anything not specifically on the list of exceptions may be deemed restricted by copyright.

The other approach is to include flexible guidelines about what is allowed in the spirit of the three-step test described above. Courts then determine exactly what uses are allowed without the permission of the copyright holder. The downside to flexible guidelines is that they leave more room for uncertainty. This is the approach used in the United States with fair use, although U. S. copyright law also has some specific exceptions to copyright written into the law as well. In the United States, fair use is determined using a four-factor test,^[5] in which a federal court judge considers (1) the purpose and character of use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken from the work, and (4) the effect of the use upon the potential market for the copyrighted work. (See the “Additional Resources” section at the end of this chapter for a good selection of publications that discuss fair use and other exceptions and limitations to copyright.)

Most countries also have compulsory licensing schemes, which are another form of limitation on the exclusive rights of copyright holders. These statutory systems make copyrighted content (for example, music) available for particular types of reuse without asking permission, but they require payment of specified (and non-negotiable) fees to the copyright owners. Compulsory licensing schemes permit anyone to make certain uses of copyrighted works so long as they pay a fee to the rights holder whose work will be used.

As an organization and a movement, Creative Commons supports strong exceptions and limitations to copyright. But the vision of Creative Commons—universal access to research and education and full participation in culture—will not be realized through licensing alone. Creative Commons supports a copyright system that appropriately balances the rights of creators and the rights of users and the general public.

 

Final Remarks
Like the public domain, the exceptions and limitations to copyright are just as important as the exclusive rights that copyright grants. Think of them as a safety valve for the public in order to be able to utilize copyrighted works for particular uses in the public interest. You should educate yourself about the exceptions and limitations that apply in your country, so you can take advantage of and advocate for these critical user rights.

 

2.5 | ADDITIONAL RESOURCES
More Information about Copyright Concepts
LIABILITY AND REMEDIES
Generally, to establish a claim of copyright infringement, a creator or holder of copyright need only show that they have a valid copyright in the work and that the defendant copied protected expression from the work. However, the intention of the alleged infringer may be relevant in some cases, such as if the defendant asserts that an exception or limitation applied to their use or that their work was independently created.

The copyright laws of some countries grant copyright holders statutory remedies for infringement. The type and amounts of remedies, including damages, are established by law. You should be aware of the existence of statutory damages and other remedies permitted by applicable law, including statutory provisions that award legal fees in some circumstances.

 

LICENSING AND TRANSFER
Many creators and copyright holders need help to fully exercise their exclusive rights or simply give others permission to exercise the rights granted by copyright law. Several options exist to do this. Some creators choose to license some or all of their rights, either exclusively or nonexclusively. Others choose to sell their rights outright and allow others to exercise them in their place, sometimes in exchange for royalty payments. There are often formalities associated with the sale or licensing of copyrights, including when a copyright license must be in writing, depending on the copyright law that applies.

 

TERMINATION OF COPYRIGHT TRANSFERS AND LICENSES
The laws of some countries grant copyright holders the right to terminate transfer agreements or licenses even if the transfer agreement or license doesn’t allow it. In the United States, for example, copyright law provides two mechanisms for doing so, depending on when the transfer agreement or license became effective. For more information on these rights and a tool that allows creators and copyright holders to figure out if they have those rights, see https://rightsback.org.

 

OTHER GENERAL RESOURCES ON COPYRIGHT

• “CopyrightX,” by Harvard Law School.

  This is a course on copyright provided by the Harvard Law School’s HarvardX distance learning initiative: http://copyx.org/; http://online-learning.harvard.edu/course/copyrightx.

• U.S. Copyright Office, Circular no. 1, “Copyright Basics:” https://www.copyright.gov/circs/circ01.pdf.
• “Copyright for Educators & Librarians,” by Coursera. All rights reserved.

  This is a course on copyright provided by Coursera: https://www.coursera.org/learn/copyright-for-education.

 

MORE ON PHILOSOPHIES OF COPYRIGHT

• “Philosophy of Copyright,” Wikipedia article: https://en.wikipedia.org/wiki/Philosophy_of_copyright. CC BY-SA 3.0.
• “Author’s Rights,” CC BY-SA 3.0. Wikipedia article: https://en.wikipedia.org/wiki/Authors%27_rights.

 

More Information about Limitations and Exceptions to Copyright

• Fair Use Evaluator

  This is an online tool to help users understand how to determine the “fairness” of use under U. S. copyright law, and work with materials under fair use: http://librarycopyright.net/resources/fairuse/index.php.

• Program on Information Justice and Intellectual Property, by American University Washington College of Law. CC BY 3.0.

  See this program’s “Publications on Fair Use” to understand the underlying principles and best practices of fair use: http://pijip-impact.org/fairuse/publications.

• “Copyright and Exceptions,” by Kennisland. Marked with CC0 1.0 Public Domain Designation.

  This is an interactive map of European copyright exceptions: http://copyrightexceptions.eu.

• A Fair(y) Use Tale, by Eric Faden. CC BY-NC-SA 3.0.

  This is a creative educational fair-use mashup which ironically makes use of clips from Disney films as it explains how copyright works. The discussion of fair use begins around the 6-minute 30-second mark in the video: https://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale.

 

More Information about the Public Domain

• “Copyright Term and the Public Domain in the United States,” by the Cornell University Library’s Copyright Information Center. CC BY 3.0.

  This provides copyright information on when resources fall into the public domain, depending on the circumstances under which they were written: http://copyright.cornell.edu/resources/publicdomain.cfm.

• Out of Copyright: Determining the Copyright Status of Works.

  This is a website to help determine the copyright status of a work and whether it has fallen into the public domain: http://outofcopyright.eu/.

• The Public Domain Manifesto, by Communia. GNU General Public License.

  This is a website with information about the public domain, the values of some of its supporters, and some recommendations on how to use the public domain: http://publicdomainmanifesto.org/manifesto.html.

• Center for the Study of Public Domain, by Duke Law School.

  This website contains information and events regarding the public domain: https://law.duke.edu/cspd/.

• Bound by Law? Tales from the Public Domain, by Keith Aoki, James Boyle, and Jennifer Jenkins. CC BY-NC-SA 2.5.

  This is a comic book about intellectual property law and the public domain: https://law.duke.edu/cspd/comics/digital/.

• Public Domain Review.

  This is an online journal and not-for-profit project that showcases works which have entered the public domain. The journal is dedicated to the exploration of curious and compelling works from the history of art, literature, and ideas: https://publicdomainreview.org/.

• “It’s Time to Protect the Public Domain,” by Wikimedia Foundation. CC BY 3.0.

  This blog post provides information on some of the important details of the public domain, its legal backing, and the public interest: https://blog.wikimedia.org/2017/06/30/time-to-protect-pd/.

 

Participants’ Recommended Resources
CC Certificate participants have recommended many additional resources through Hypothes.is annotations on the Certificate website. While Creative Commons has not vetted these resources, we want to highlight these participants’ suggestions here: https://certificates.creativecommons.org/cccerteducomments/chapter/additional-resources-2.

 

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NOTES

1. The Statute of Anne; April 10, 1710, 8 Anne, c. 19, Yale, The Avalon Project, https://avalon.law.yale.edu/18th_century/anne_1710.asp. All rights reserved.
2. By collections, we mean the assembly of separate and independent creative works into a collective whole. See chapter 4 for more discussion about collections.
3. These international agreements include the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated by members of the World Trade Organization in 1994; and the WIPO Copyright Treaty (WCT), negotiated by members of the World Intellectual Property Organization in 1996. These agreements address similar issues and also new IP-related issues not covered by the Berne Convention. Another manner in which copyright policy is made is through bilateral and multilateral trade agreements. As of 2017, there were several negotiations underway. These include the Regional Comprehensive Economic Partnership (RCEP) and the renegotiation of the North American Free Trade Agreement (NAFTA). A major drawback of multilateral trade negotiations is that they are typically conducted in secret with little or no participation from civil society organizations and the public.
4. The fair use doctrine is found in the United States, and the fair dealing doctrine is found in many other countries with common-law systems. You can learn more about the limitations and exceptions at https://www.wipo.int/copyright/en/limitations/ and https://en.wikipedia.org/wiki/Limitations_and_exceptions_to_copyright.
5. For more information on the four-factor test, see “Measuring Fair Use: The Four Factors,” Stanford University Libraries, http://fairuse.stanford.edu/overview/fair-use/four-factors/.