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 discuss these topics in further detail.

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 is a legal concept that grants authors and artists control over certain uses of their work for defined periods of time. It limits who may copy, change, or share a work.

There are several views on why copyright law should exist. One view is that copyright law encourages creativity by allowing people to profit from their work. This goal of copyright is reflected in the wording of many copyright laws. For example, the "Copyright Clause" of the United States Constitution states that Congress may grant authors copyright protection for their works for a limited time in order to "promote the progress of science and useful arts." (U.S. Constitution, Article 1, Section 8, Clause 8.) The stated purpose of the Statute of Anne, the first copyright statute in England, was to "encourage learning." (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, 8 Anne Chapter 19 (1710).) Another view is that copyright law ensures that authors are paid fairly for their effort. A third view is that creative works are part of the personality of their creator, and should be protected from being used without the author's permission.

Although copyright law grants authors many rights in their works, it also limits these rights in certain ways. Some of these limitations help librarians add to the free flow of knowledge and culture. Chief among these limitations is the public domain.

What Is The Public Domain?

The public domain is the name given to creative works that are no longer covered by the limited terms of copyright law. As an illustration, suppose the fictional country of Booktonia has a copyright term of 20 years. If a book was written in 1980, the copyright protection for the book in Booktonia would end 20 years later, in 2000. Once the copyright in a work expires, the work is said to "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 material from which anyone may draw. It provides authors the foundation from which the next generation of books, movies, songs, and knowledge can be built. 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 participating 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 holder enjoys, and 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 the debates over copyright law.

What Does Copyright Law Cover?

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 covered 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 science textbook is not protected by copyright law. You are permitted, after reading it, to write and publish a new book conveying the same information in different words. Similarly, you are permitted, after reading a work of history, to write a novel incorporating the historical facts.

Most countries require the original expression to be fixed in a tangible medium, like paper or a digital recording format, in order to be protected by copyright law. 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 receives 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 are not protected. But once fixation occurs – even of a rough, preliminary draft – that version of 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 used to require 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 be protected by copyright. Such formalities are no longer necessary for a work to be covered by copyright. However, registering a copyright may help prove authorship or identify who must be contacted before a work can be reused. In some countries, registration of a work is necessary before the author 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 will generally 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 a 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. Finally, in the United States and some other countries, when certain limited types of works are created by an independent contractor, the copyright will be granted to the one who commissioned the work.

What Rights Come With Copyright?

The rights created by copyright law fall into two categories: economic rights and moral rights.

Economic rights are intended to give authors the opportunity to use their works to make money. These are things that typically only the holder of the copyright may do unless they grant permission to others. (There are certain exceptions to the requirement to obtain the copyright holder's permission, such as fair use and compulsory licenses, that are discussed below.) 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;

• the 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, sometimes called related 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 its 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. If someone wants to use a copyrighted work in one of these ways, and that use is not subject to one of the exceptions discussed below, they may obtain a license from the copyright holder that gives them permission to use the content. The copyright holder may demand a fee for such use, or may allow the use for free. The license should be specific and in writing in order to avoid legal confusion.

It is not always necessary to contact the copyright holder directly to obtain a license to use their works. 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 that want to use their members' works. One collecting society that many librarians are familiar with is the Copyright Clearance Center, which provides blanket annual licenses for the use of its members' content. In addition, the Creative Commons standard also allows authors or artists to create general licenses in advance and thus facilitate reuse of their works by third parties. For example, an author might license his book under a Creative Commons BY-NC license. "BY" means that the work should be attributed to the author; "NC" means the work can only be used for noncommercial purposes. Should these two conditions be met, the work can be reused freely.

Copyright law also contains some limitations on these rights to help encourage creative use by other people. If a use is covered by one of these exceptions, the user does not have to obtain a license from the copyright holder.

First, many older books, articles, recordings, and other works 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 into formats accessible by handicapped persons. Other exceptions are broader and less well defined, such as the fair-use doctrine of the United States and a few other countries.

Finally, most countries have some sort of compulsory licensing system for certain types of works. Under a compulsory licensing system, copyright holders are required to allow certain uses of their works as long as the user pays a fee 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 a Creative Commons license or a similar set of terms that allow their use?
• Are any of the remaining materials freed for use by a statutory exception, such as fair use?
• Does the library already own a license to use the materials in the way Angela proposes?

If the materials are in the public domain, are licensed freely under a Creative Commons license, 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 holder 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 for or available to the public.

Identify one or two additional sitations a librarian might encounter that would require an understanding of copyright law and the public domain.

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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