Module 1: Copyright and the Public Domain

by Melanie Dulong de Rosnay and William Fisher

Learning objective

This module explores the basic concepts, rights, and limitations of copyright law. It provides a general introduction to elements of copyright important to librarians. Other modules will elaborate further on these topics.

Case study

“I want to build a course pack for my students, what material may I include?”

Angela, a music professor, is visiting her school’s library to collect material to build a course pack for her students. She would like to include excerpts from books, electronic resources and scores. She also wants to post selected music and video clips online with her commentary. Nadia, the librarian, will explain to Angela what she may and may not do under copyright law.

What Is Copyright?

Copyright law allows authors and artists to control certain uses of their work for certain periods of time. It limits who may copy, change, or share a work.

There are many reasons why copyright law exists. Most people argue that copyright law encourages creativity by allowing people to profit from their work. According to them, copyright law should focus on inspiring creativity, not enriching authors. Many important copyright laws imply this viewpoint. For example, the "Copyright Clause" of the United States Constitution instructs the Congress to "promote the progress of science and useful arts" with copyright. The ancient English Statute of Anne was intended to "encourage learning."

Others support copyright law because they believe it ensures authors are paid fairly for their effort. Still others mount the moral argument that creative works are part of the personality of their creator. These people believe copyright protects the artist or author's personality from being taken without permission.

Although copyright law reserves many rights to authors it also limits many of these rights. Some of these limitations help librarians add to the free flow of knowledge and culture. Chief among these protected freedoms is the public domain.

What Is The Public Domain?

The public domain are creative works no longer covered by the limited terms of copyright law. For example, suppose the fictional country of Booktonia has a copyright term of 20 years. An excellent history of Booktonia is written in 1980. 20 years later, in the year 2000, its copyright will expire and it will "fall into" the public domain. Once a work is in the public domain, the restrictions of copyright law no longer apply, and anyone may copy, reuse, or share the work as they wish.

The public domain functions as a pool of creative works from which anyone may draw. It provides authors the raw ideas from which the next generation of books, movies, songs, and knowledge are manufactured. The public domain is the cultural reservoir from which the rivers of creativity flow. Or, as the 14th century English poet Chaucer (whose work is now in the public domain) wrote, "For out of the old fields, as men say, Comes all this new corn, from year to year; And out of old books, in good faith, Comes all this new science that men learn."

Who Makes Copyright Law?

There are international treaties that set certain standards all countries must follow with their copyright laws. However, within those limits, each nation sets its own laws. Those laws determine who can acquire a copyright, what rights the copyright owner enjoys, how long the copyright lasts. As a result, copyright law varies significantly from one country to another.

Who makes copyright law in a country often depends on what legal system that country has. In common law countries courts are very powerful and have considerable control over what the law means. In civil law countries courts tend to defer to the legislature. In other countries religious legal systems also affect copyright rules. A list of the legal systems of different countries may be found here.

No matter what the legal system, however, copyright law is constantly evolving to meet new creative, technological, and social challenges. Often those reforms are driven by interest groups who seek to benefit their members. Librarians groups have often played important roles in prior debates over copyright law.

What Does Copyright Law Protect?

Copyright law generally covers all “original works of authorship.” Such original works come in many forms. For example, in almost all countries, all of the following are protected by copyright law:

• literary works (books, articles, letters, websites, etc.);

• musical works;

• dramatic works (operas, plays);

• graphic arts (photographs, sculptures, paintings, etc.);

• motion pictures and audiovisual works (movies, videos, television programs; etc.);

• architectural works;

• computer software.

In some countries, sound recordings are also protected by copyright law; in other countries, sound recordings are protected by a separate, related set of rules known as “neighboring rights.” In some countries, government works – such as charts, official reports, and judicial opinions – are protected by copyright law; in others, they are considered part of the public domain.

It is important to remember that copyright never applies to ideas or facts. It only covers “original expression” – in other words, the distinctive way in which ideas are conveyed. So, for example, the information contained in a newspaper article is not protected by copyright law. You are permitted, after reading an article, to write and publish a new article conveying the same information in different words. Similarly, you are permitted, after reading a work of history, to write another book, expressing in different words the same facts.

Most countries require the original expression to be fixed in a tangible medium, like paper or a digital recording format, in order to enjoy copyright protection. In those countries, improvisational performances – such as jazz or choreography – are not protected unless their authors record them.

In general, the author of a work enjoys copyright protection as soon as the work has been fixed – for example, through writing, painting, or audio recording. Copyright does not protect a work until it is fixed. For instance, a screenplay that exists only in the screenwriter’s mind or the plot of a novel that the novelist explains orally to a potential publisher is not protected. But once fixation occurs – even of a rough, preliminary draft – the work becomes protected, even if it has yet to be published or even made public. So, for example, private letters, diaries, and email messages are all protected by copyright law.

Some countries once required published works to be registered with a central office or to carry a copyright notice with the name of the author and the year of publication in order to enjoy copyright protection. Such procedures are no longer necessary. However, registering a copyright may help prove authorship or indicate who must be contacted before a work can be reused. And in some countries, compliance with these formalities is necessary before one is permitted to sue someone for copyright infringement. In addition, some countries continue to require publishers to deposit one copy of every new work in a designated office, such as a National Library.

Who Gets A Copyright?

A copyright is ordinarily obtained by the author of a work. If you write a novel, paint a painting, or compose a song, you automatically acquire the copyright in your creation.

The situation is more complicated if you are an employee creating the work as part of your employment. Countries vary as great deal in how they deal with such situations. Typically, in countries that follow the common law tradition, the copyright in a work prepared by an employee goes to the employer. By contrast, in countries that follow the civil law tradition, the copyright typically goes to the employee. However, in civil-law countries, employment contracts or even copyright law often give employers rights over their employees’ creations similar (though not identical) to the copyrights enjoyed by employers in common-law countries.

What Rights Come With Copyright?

Copyrights typically carry with them two kinds of rights: economic rights and moral rights.

Economic rights give authors control over how their works can be used to make money. These are things that only the owner of the copyright may do unless they explicitly grant permission to others. The primary economic rights are:

• the right to reproduce the work – in other words, to make copies of it;

• the right to create derivative works - such as translations, abridgments, or adaptations;

• the right to distribute the work – for example, by selling or renting copies of it;

• the right to perform or display the work.

Moral rights are designed to protect authors’ noneconomic interests in their creations. Moral rights do not exist in all countries. Generally speaking, they are recognized more widely and are enforced more firmly in civil-law countries than in common-law countries. The primary moral rights are:

• the right of integrity – for example, the right to prevent the destruction or defacement of a painting or sculpture;

• the right of attribution – in other words, the right to be given appropriate credit for one’s creations, and not to be blamed for things one did not create;

• he right of disclosure – the right to determine when and if a work shall be made public;

• the right of withdrawal – the right to remove from public circulation copies of a work one has come to regret.

Neighboring rights are a close cousin of copyright. They are economic rights granted to persons who are not authors of the work but who contribute to their creation. They may include performers, producers, and broadcasting associations.

Some countries also have privacy and publicity rights that complement copyright. For example, some countries prevent the public distribution of works that contain personally identifiable information unless permission is granted by that person.

Creative Freedoms Under Copyright

In the preceding section we outlined some rights reserved to the author or artist by copyright law. However, copyright law also contains limitations on these rights to help encourage creative use by other people.

First, many older books, articles, recordings, and so forth are part of the public domain. These materials may be used by anyone for any purpose. Unfortunately, it is not always easy to figure out when a particular work has fallen into the public domain. This directory contains some helpful tips on determining the copyright of an individual work because of its age. Sometimes, authors or artists will dedicate their work to the public domain, much like a landowner will sometimes donate property to a town so it may become a park. In these instances, the work becomes free to use immediately.

Second, the copyright laws of every country include exceptions and limitations to copyright. These carve out specific activities that users can do without fear of violating copyright. Examples include quoting short passages of literary works for the purposes of criticism; photocopying for archival purposes by libraries; and converting works in formats accessible by handicapped persons. Other exceptions are broad and malleable, such as the fair-use doctrine of the United States and a few other countries.

Third, a person may obtain a license from a copyright holder that gives them permission to use the content. The copyright owner may demand a fee or may allow the use for free. The license should be specific and in writing in order to avoid legal confusion. Many countries have collecting societies that act as agents for large numbers of copyright owners, for instance by negotiating blanket fees with radio or television stations. The Creative Commons standard also allows authors or artists to create general licenses in advance and thus facilitate reuse by third parties. For example, an author might license their book under Creative Commons and specify it as BY-NC. "By" means attribution must be given; "NC" means the work can only be used for noncommercial purposes. Should these two conditions be met, the work can be reused freely.

Finally, most countries have some sort of compulsory licensing system. Under a compulsory licensing system, copyright owners are required to allow certain uses of their content for fees set by a government agency. Such regimes are becoming increasingly common.

Back to the case study

Nadia (the librarian) should help Angela (the professor) organize the set of materials she has gathered by asking a series of questions:

• Are any of the materials in the public domain?
• Are any of the remaining materials licensed under the Creative Commons or a similar set of terms such that they can be used?
• Are any of the remaining materials freed for use by a statutory exemption?
• Does the library already own a license to use the materials in the way Angela proposes?

If materials are in the public domain; are licensed freely under the Creative Commons; are covered by a statutory exemption; or are included in existing licenses, they may be used. If not, Angela may need to obtain permission from the copyright owner or a collective rights organization.

Additional resources

“A Fair(y) Use Tale” is a 2008 short movie on copyright and fair use in the US. According to the synopsis, “professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms”. http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale

Carol C. Henderson, “Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property Law and Policy,” 1998. The former Executive Director of the Washington Office American Library Association explains which role librarians may play to maintain copyright balance. http://www.acrl.org/ala/aboutala/offices/wo/woissues/copyrightb/copyrightarticle/librariescreatures.cfm

Assignment and discussion questions

Round 1 questions

Based on the textbook and the additional resources, please explain briefly what copyright law attempts to protect as well as what freedoms are reserved by or available to the public.

Besides helping a professor to build a course pack, please describe one or two situations or projects involving copyright law and the public domain in the work of librarians.

Round 2 question

Please read the answers that your colleagues provided to the Round 1 questions, and comment on them. Try to explain why you agree or disagree, and which new ideas may have come to your mind after reading your colleagues’ answers.

Do not hesitate to give examples you faced in your life as an author, a member of the public, or a librarian.

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