1.3 Copyright

Most of the content in this section 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 has been updated by the instructors in collaboration with the Library Copyright Institute Links to an external site..

The default of “all rights reserved” copyright is that all rights to copy and adapt a work are reserved and controlled by the author or creator. Open Educational Resources assign a Creative Commons licenses which adopts 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, in most countries you have a copyright as soon as you type the first stanza of your poem or record a song. Registering your copyright with a local copyright authority allows you to officially record your authorship, and in the U.S. registration is necessary to enforce your rights. 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. In the U.S., the copyright term for a work is at least 70 years after the life of the author, and some terms are even longer.

What Can and Cannot be Copyrighted?

Material that can be copyrighted includes:

Literary works
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works
Computer software

Copyright does not protect the following:

Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries;
Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down);
Titles, names, short phrases, and slogans;
Familiar symbols or designs (eg. trademark);
Slight variations of typographic ornamentation, lettering, or coloring;
Mere listings of ingredients or contents

What Are the Exclusive Rights Granted?

Creators who have copyright get exclusive rights to control certain uses of their works by others. In the U.S., these rights include the following:

The right of reproduction;
The right to make derivative works, such as translations, sequels, and new editions.
The right of distribution;
The right of public performance;
The right of public display;
The right to publicly perform sound recordings through digital audio transmissions.

There are additional rights for a few categories of visual art.

Outside of the United States the list of rights is usually similar.

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. It’s important to know that:

Copyright expires. While copyright terms are longer than ever before, they're not infinite. In most of the world the minimum length of protection is 50 years after the death of the author. In some countries, the term is longer; in the U.S. it is 70 years after the author dies, and can be up to 100 years after the author dies in other jurisdictions.
Rules about the public domain have changed over time. For example, in the U.S., prior law said that copyright protection was dependent on whether a work complied with certain formalities (like including the © symbol) when it was published, and that the term of protection was based on the date of publication rather than the author’s death. Today in most countries, there are no formal requirements to acquire or renew copyright protection over a work, and most countries don’t strictly focus on the date of publication. However, some works that otherwise might be protected have entered and remain in the public domain because of prior law.
Some things are 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 copyright holder can waive rights and dedicate the work to the public domain before copyright has expired. In most parts of the world, creators can decide to forgo 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 from the copyright holder. 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, art, or other creative works without quoting from or displaying a portion of the work? (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.

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. In the US and Canada educators rely on the face-to-face teaching exception that permits performance and display of materials as part of their classroom instruction. Libraries rely on a suite of exceptions that permit interlibrary loan, personal use, and preservation.

The other approach is to include flexible guidelines about what is allowed. 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. Since the mid-1990s American courts have synthesized these four factors into the question about whether a specific use is “transformative,” altering the original with new expression, meaning, or message.

Optional Reading

The Code of Best Practices in Fair Use for Open Educational Resources: A Guide for Authors, Adapters & Adopters of Openly Licensed Teaching and Learning Materials Links to an external site. (CC BY 4.0 (Links to an external site.) Links to an external site.) was released in February 2021. Rolling Stones instructor Will Cross was part of the project team. The Code is a valuable tool for evaluating common scenarios in which fair use might be relied upon in producing OER.

Additional Explanation of Attribution for Content on This Page:

“Module 1.3” is an adaptation of the Creative Commons Certificate published as of 2018, licensed by Creative Commons Links to an external site. under a Creative Commons Attribution 4.0 International License Links to an external site.. This adaptation is made and published by the Open Education Network under a Creative Commons Attribution 4.0 International License. Links to an external site. Reading the Adapted Work does not mean the individual doing so has earned a CC Certificate, nor may any organization or individual offer a “CC Certificate.” Note that the trademarks of Creative Commons and the Adapter are the property of their owners and require permission to reuse. Anyone who wants to take the CC Certificate is welcome to register here: https://certificates.creativecommons.org Links to an external site..

Library Copyright Institute - Special Opportunity

Copyright and open licenses are a foundational aspect of OER. But not every institution has a full-time attorney on staff to help guide practice through the nuances of ownership of instructional materials, strategies for incorporating content under fair use, or international sharing and remix. In order to help Certificate participants understand and teach these issues at their own institutions the OEN has partnered with the Library Copyright Institute Links to an external site. to host an OER-focused version of the popular Copyright Institute program.

The Institute will be held over four two-hour sessions and will be organized around affinity groups in OER. Topics will include copyright fundamentals, copyright for open pedagogy, copyright issues in affordable course materials, and copyright in remix and publishing.

The Institute will be held on four successive Mondays, July 10, July 17, July 24, and July 31 from noon to 2:00 p.m. Central / 1:00 to 3:00 p.m. Eastern and is free and open to all participants enrolled in the 2023 Certificate program. Please use this link to register for this special offering for your cohort: Zoom link
https://umn.zoom.us/j/94790513164 Links to an external site.

*Note: While we will record the sessions, there are frequent use of breakout sessions, so attending in person is encouraged. When you register, you are committing to attending all four sessions.

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