What is copyright?

Copyright is an intellectual property law that is designed to give content creators control over what other’s can do with their works. As set out in the US Constitution, which defines the purpose of the law as ensuring that creators benefit from their works “to promote the Progress of Science and useful Arts,” copyright covers the right to

• copy a work
• distribute a work
• make derivatives of a work
• perform and display a work publicly
• digitally transmit a work.

There are two primary reasons why people consider copyright important enough to write it into law. The utilitarian view recognizes that giving creators sole control over their works allows them to make money from their works. The author’s rights view, on the other had, is concerned with the creator’s deep connection to their works and their need to protect their reputation. Copyright, in this case, enables them to protect and control their legacy.

What works are subject to copyright?

Copyright protection is extended to any original literary or creative works including musical scores and recordings; architectural, audio-visual, pictorial, and sculptural works; and compilations and derivative works. Copyright does not extend to facts or ideas, but it does cover original expressions of facts or ideas that have been fixed in a tangible medium.

How is copyright conferred?

In the US, like many but not all countries, copyright is automatically conferred on a work when it is fixed in a tangible medium–when it’s written, recorded, sculpted or otherwise physically or digitally created.

How long does copyright last?

Originally 14 years, the copyright term in the US has been repeatedly expended over the years to it’s current length of the life of the creator plus 70 years. In the case of a “work-for-hire,” where copyright belongs to the creator’s employer, the term is 120 years from creation or 95 years after publication, whichever is shorter.

How is copyright different from other types on intellectual property?

Copyright is only one law that covers intellectual property.

• Trademark   A trademark is a symbol, sign, or phrase that represents the products and services of a company or organization and serves to distinguish it from other entities. A trademark holder can prevent other from using their trademarks or closely related marks if such use may cause confusion among customers. It also helps trademark holders to reserve their reputations. Examples of trade marks are company logos like the Nike swish and slogans like “Just Do It.”
• Patent   Patents give inventors exclusive rights over their inventions for a set period of time. Patents cover inventions that are new, useful and non-obvious.
• Trade Secret   Trade secrets are intellectual property–processes, designs, patterns, etc–that 1) are not generally know to the public, 2) generate economic benefit by dint of their secrecy, and 3) who’s holders have made a reasonable effort to keep secret.

How do works enter the public domain?

The public domain is made up of works that are not subject to copyright. There are four ways a work can enter the public domain:

1. When their copyright term expires.
2. When a creator decides to forgo copyright protections and dedicates a work to the public domain.
3. When a work that is not subject to copyright, like ideas and facts or, in many countries, works of administrative, legislative or legal nature.
4. When the creator did not comply with existing regulations to establish copyright (where such regulations exist).

As important as copyright is for incentivizing the creation of new works and ensuring that authors, artist and others can make a living from their work, the public domain is also essential as it allows people to create new works and generate new ideas that are in conversations with existing ideas.

What about fair use?

Copyright law is not absolute–there are exemptions that allow for limited use of copyright materials without securing permission from the copyright holder. In the US, the Fair Use doctrine balances the rights of the copyright holder with the wider public interest. It should be noted that Fair Use is a right, but defense again copyright infringement. As such, much of what defines Fair Use has been determined by court cases, making understanding exactly what is and isn’t Fair Use somewhat difficult. There are four factors that must be taken into consideration when determining whether a particular use might fall under the fair use doctrine:

1. the purpose and character of the use, including whether such use is of a 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; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The Stanford Copyright and Fair Use Center has a very useful discussion on understanding these factors.

What are the copyright considerations around teaching?

It is often assumed that any use related to education is considered fair use. This is a misconception. The nature of the use is only one consideration of fair use and is not enough to determine is a use falls under the exemption. All four considerations must be taken into account on a case-by-case basis. As Fair Use is a defense against copyright infringement, there are no legally defined guidelines about how to interpret the four factors. There are various “rules of thumb” (e.g. you can copy 30% of a work) that get passed around, particularly in education, but none of these have any basis in the law.

Copyright law provides wide latitude for use of copyrighted material in in-person educational settings. The law allows for the display or performance, even in whole, of legally acquired versions of a work (image, play, video, text, etc.) in classrooms or other in-person instructional spaces at not-for-profit institutions. However, this does not mean that you can copy whole articles and distribute them to your entire class as this may impact the copyright holder’s ability to benefit economically from their work.

In 2002, the TEACH Act extended similar considerations to the use of new technologies in teaching. These considerations only pertain to legally acquired materials that were not designed for online learning.

• Materials can be displayed in synchronous and asynchronous online educational spaces and must be integral to instruction.
• The amount of a work must be the same as would be displayed in an in-person class (e.g. images, poems, and short essays) and must only be accessible while the student is “in class” (i.e. logged into onCourse).
• A statement telling students that the work is under copyright must be included.

What about students and copyright?

As with other types of work, student work, including papers and other assignments, are copyrighted, whether published or unpublished.

There is often a misconception that students don’t have to worry about copyright when working on assignments, because it is “educational.” This, however, is not true. Students have the same responsibilities to ensure that they are using other’s work responsibly. They must take into account the same Fair Use considerations as others. While it may be easy to get away with copyright infringement in assignments that go no farther than a single course, the stakes are much higher when students are woking on assignments that will be more widely distributed, like a presentation, published essay, exhibited artwork, or website. Teaching students how to navigate copyright, including finding and using CC licensed works, is an essential part of their education.

Works Consulted

“Copyright Basics” Creative Commons Certificate for Educators, Academic Librarians and GLAM. https://certificates.creativecommons.org/cccertedu/chapter/1-what-is-creative-commons/. Accessed 6 Feb. 2022. Licensed under a Creative Commons Attribution License.

“Copyright.” Wikipedia, 20 Feb. 2022. Wikipedia, https://en.wikipedia.org/w/index.php?title=Copyright&oldid=1069013095. Licensed under a Creative Commons Attribution-ShareAlike License.

“Copyright Explained For Students: Don’t Get Caught Out.” Digital.Com, https://digital.com/how-to-start-a-student-blog/copyright-guide/. Accessed 17 Apr. 2022.

“Fair Use,” Wikipedia, 20 Feb. Wikipedia, https://en.wikipedia.org/wiki/Fair_use. Licensed under a Creative Commons Attribution-ShareAlike License.

Kopel, Matthew. LibGuides: Copyright at Cornell Libraries: TEACH Act. https://guides.library.cornell.edu/copyright/teach-act. Accessed 17 Apr. 2022.

“Patent.” Wikipedia, 20 Feb. Wikipedia, https://en.wikipedia.org/wiki/Patent. Licensed under a Creative Commons Attribution-ShareAlike License.

“Trademark.” Wikipedia, 20 Feb. 2022. Wikipedia, https://en.wikipedia.org/wiki/Trademark. Licensed under a Creative Commons Attribution-ShareAlike License.

“Trade Secret,” Wikipedia, 20 Feb. Wikipedia, https://en.wikipedia.org/wiki/Trade_secret. Licensed under a Creative Commons Attribution-ShareAlike License.