1.3 Copyright

Most of the content in this subunit comes from the Creative Commons Certificate Links to an external site. 2018 course, the resources of which are available under the CC BY 4.0 Links to an external site. license. Content that doesn't come from the CC Cert will be noted.

The default of “all rights reserved” copyright is that all rights to copy and adapt a work are reserved by the author or creator. Creative Commons licenses adopt a “some rights reserved” approach, enabling an author or creator to free up their works for reuse by the public under certain conditions. To understand how Creative Commons licenses work, it's important to have a basic understanding of copyright.

Copyright Basics

Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas. That may sound simple, but unfortunately it isn't. 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 doesn't allow the copyright holder to own or exclusively control the idea itself.
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 don't have to register your work to become a copyright holder.
Copyright protection lasts a long time, often many decades after the creator dies.

What’s Copyrightable?

Literary and artistic works
Translations, adaptations, arrangements of music, and alterations of literary and artistic works
Collections of literary and artistic works

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 get 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 authorized translations of their works.
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.

The Public Domain

Despite the expansive reach of copyright, there's still a rich (and growing) public domain full of works that are free from copyright. Works enter the public domain in one of four ways:

The copyright expires. While copyright terms are longer than ever before, they're not infinite. In most countries, the term of an individual’s copyright expires 50 years after their death. In some countries, the term is longer and can be up to 100 years after the author dies.
The copyright holder failed to comply with formalities 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 wasn't always the case, however, and many works have entered the public domain over the years because a creator failed to adhere to formalities.
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 aren't copyrightable, such as the design of a screw. The Berne Convention Links to an external site. identifies additional categories, such as official texts of a legislative, administrative, and legal nature. Further, in some countries, works created by government employees are excluded from copyright protection and aren't eligible for copyright. Facts and ideas are never copyrightable.
The creator dedicates the work to the public domain before copyright has expired. In most parts of the world, creators 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”) Links to an external site. Public Domain Dedication that helps authors put their works into the worldwide public domain to the greatest extent possible.

For more information on copyright terms, visit Copyright Term and the Public Domain in the United States Links to an external site., Cornell University Library Copyright Information Center (by Peter B. Hirtle, CC BY 3.0 Links to an external site.).

Fair Use

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, and other countries do not offer exceptions or limitations at all. If your use of another’s copyrighted work is “fair” or falls within another exception or limitation to copyright, then you're not infringing the creator’s copyright.

When legislators created copyright protections, they realized that allowing copyright to restrict all uses of creative works could be highly problematic. For example, how could scholars or critics write about plays, books, movies, or other art 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 might be negative? (Probably not.)

For this and a range of other reasons, certain uses are explicitly carved out from copyright — including, in most parts of the world, uses for purposes of criticism, parody, access for the visually impaired, and more.

The Berne Convention Links to an external site. 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 supplied)

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 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 Links to an external site., where a federal court judge considers: 1) the purpose and character of your use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market.

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