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Copyright basics

This page explains what copyright is, some basics about how it works, some ideas about why copyright laws exist, and some places the laws bend.

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What can have a copyright?

Copyright is the area of law that deals with creation, ownership, sale, and use of creative and expressive works. Many people think of copyright as a distant thing that doesn't relate to their lives, but under US law, and in most other countries, a creative work automatically gets a copyright as soon as it is created, and that usually belongs to the creator. That means almost everyone owns copyrights, and almost everyone uses copyrights, daily. 

A copyright owner gets to control who can

  • make copies of the work,
  • distribute copies of the work (by selling, renting, lending, or giving it away),
  • perform or display the work publicly, and
  • make derivative works, like translations, adaptations, and reinterpretations.

 U.S. Copyright Code, 17 U.S.C. § 106

A copyright owner can share some or all of those rights with other people or organizations by transferring ownership, or by granting licenses. 

The copyright rights outlined above only apply to works that are

  • literary works,
  • musical works, including accompanying words,
  • dramatic works, including accompanying music,
  • pantomimes and choreographic works,
  • pictorial, graphic, and sculptural works,
  • motion pictures and other audiovisual works, and
  • sound recordings.

U.S. Copyright Code, 17 U.S.C. § 102(a)

Some of the categories are bigger than you might think. For instance, "literary works" includes almost all text-based media, including computer code.

To qualify for copyright, works that fit into one of the categories above must also be "fixed in a tangible medium of expression". Almost anything counts as "fixed" - a drawing on a chalkboard or whiteboard, or a file saved in a computer's memory would qualify. However, completely unfixed works such as improvisational speeches or music aren't protected by copyright.

A work also must include original creative expression to qualify for protection. The amount of originality required is pretty low, but just "sweat of the brow" is not enough. For example, writing out an alphabetical list of all Nobel Prize winners may take a lot of work, but it doesn't really contain any original creative expression. By contrast, if you add annotations and commentary to that list, you could own a copyright in the annotations and commentary.

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What cannot have a copyright?

Copyright does not apply to:

procedures, processes, systems, methods of operation  
These qualify for protection and ownership under patent law, and patent and copyright do not usually overlap.
ideas, concepts, principles, or discoveries
Broadly speaking, these are not ownable under any form of U.S. intellectual property law. This reflects important values about intellectual freedom and encouraging innovation.
titles, names, short phrases; familiar symbols or designs,typefaces fonts, and lettering; recipes; layout and design; blank forms
These are considered to fail the requirement of originality.
other unoriginal or unfixed works

U.S. Copyright Code, 17 U.S.C. § 102(b)

More info on what copyright doesn't do, from the U.S. Copyright Office:

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How to get a copyright

You don't have to do anything to get a copyright. As soon as an eligible work is created, it is automatically fully protected. 

Registration can be useful, but it is optional. You also do not have to include a copyright notice, date, the © symbol, or any other information on the work in order to own a copyright. (These have been requirements in the past.) 

Employers usually own the works created by employees in the course of their employment, and commissioned works ("works for hire") are often owned by the party that commissioned them. Someone who is not a creator may acquire ownership of a copyright through a written agreement with the creator.

Copyrights can be registered with the U.S. Copyright Office by any legal owner, at any time during the term of copyright protection. Early registration (within 3 months of publication, and/or before infringements are discovered) brings some benefits if a lawsuit ever arises. There is a nominal fee for registration, and a copy of the work must be deposited with the Copyright Office. (More info: Copyright Office F.A.Q.)

How long copyrights last

For works created today, copyright protection starts automatically as soon as a work is created, and lasts for 70 years after the death of the creator.

Because copyright terms have been changed several times, the term lengths for older works vary widely, based on a huge number of factors. Learn more about how copyright terms end, and works rise into the public domain.

 

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Why we have copyright law

There are a lot of different stories about the purpose of copyright. Two of the stories dominate most discussions.

Economics and the public interest

The main story of copyright in U.S. law focuses on economic incentives and social progress. The U.S. Constitution gives Congress the ability "...to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." All of U.S. copyright law (and patent law) grows from this one brief phrase in the Constitution.

If you create a physical object, you can physically control who gets to use it. But creative works are harder to control. For example, once someone knows a song, they can sing it - or teach it to someone else! Copyright laws work to control ownership, use, and distribution of creative and expressive works.

In this economic story about copyright, people think that most creators make their creative works so that they can get paid. When copyright enables creators to get paid, more creators make more works. And more creative and expressive works are good for society, because they help us develop arts, science, knowledge, and culture.

In this economic story, the reason we have copyright law is to help creators control and receive payment for their works, because that will result in the creation of many more expressive works, which benefits all of society.

"Moral rights" for creators

Many countries outside the US base their story about copyright law on "moral rights" of creators, instead of economic incentives. .

"Moral rights" are rights that arise naturally out of the deep connection that creators have with their works. Because of that connection, this story goes, the law must recognize creators' rights around attribution and reputation. In copyright based on moral rights theories, creators have some economic rights (such as the right to make copies), but they also have parallel rights to attribution and to prevent uses of their works of which they disapprove. In many countries, the moral rights cannot be sold or given away, and remain with the creator no matter who controls the economic rights.

More information

...on Copyright Theory, Generally:

Introduction - Copyright for Librarians, Berkman Center for Internet & Society

...on Moral Rights:

Moral rights (copyright law), Wikipedia

Moral Rights Basics, by Betsy Rosenblatt, Harvard Law School.

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The public domain

The public domain is the collection of all creative works that have no copyright - or to look at it another way, the works that everyone owns! It is a wellspring of knowledge, culture, and creative growth. Expansion of the public domain is, by some accounts, the whole reason we have copyright in the first place!

Works in the public domain may be used freely by anyone, for any purpose, without copyright permission from anyone - because no one owns exclusive rights in these works. However, use of public domain works can still raise other legal issues around defamation, rights of publicity, trademark, and related rights of individuals or organizations portrayed in the materials.

People sometimes think that things they can access for free online are “in the public domain”. But the public domain means something specific: works that don’t have copyrights. Most works that are free online have a copyright owner somewhere! 

Copyrights END

In the United States, the only sure-bet works where copyright has ended are those that were published here before 1926. (That date moves forward each January 1. In 2022, works published before 1927 will move into the public domain; in 2023, works published before 1928 will move into the public domain.) 

Many works that were published in other countries in that time period, or created then but never published, may still be covered by copyright in the U.S. It is possible for a work to be in the public domain in one country, and still covered by copyright in another!

But because the law is complicated and has changed a lot, copyright has also ended for many works that were published more recently. There may be works published as late as the 1960s and 1970s where the copyright has ended. See the resources below for more information on all the details!

Some copyrights never exist

All works created by the U.S. federal government (and federal employees in the course of their work) are in the public domain in the U.S. from the moment of their creation - there is no copyright, in the U.S., in U.S. federal government works.

Works also might not have a copyright if they do not meet copyright eligibility requirements. For example, the originality requirement also means that human authorship is required (see section 313.2 in the Copyright Office Compendium.(PDF)) 

More information

Copyright Term and the Public Domain in the United States - CC BY Peter Hirtle, Cornell Copyright Information Center

Rights Review Workflow from the Minnesota Digital Library and UMN Libraries
(for use with RightsStatements but useful for understanding public domain status) 

Search Copyright Records at the U.S. Copyright (limited to post-1978 works)

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Exceptions and limitations - copyright’s built-in loopholes

Copyright does give creators some control over their work. But it’s not complete control! Copyright always allows some uses without any permission. This is to help creators of new works that build on and are influenced by works that have gone before. This is also because it's important that the public be able to do some kinds of things with all works. 

These built-in loopholes in copyright law are called exceptions and limitations. There are many, but two are particularly important for education and research uses.  

The classroom use exemption

Copyright law places a high value on educational uses. The Classroom Use Exemption (17 U.S.C. §110(1)) only applies in very limited situations, but where it does apply, it is pretty clear - both instructors and students have broad rights to perform or display any works.

When the exemption does apply, instructors can play movies and music for their students, at any length (though not from illegitimate copies!). Instructors can show students images or original artworks. Students can perform music, read poems, and act out scenes. And students and instructors can do all these things without seeking permission or giving anyone payment. The law already allows it!

This exemption only applies in a classroom ("or similar place devoted to instruction"), for people who are there in person, engaged in face-to-face teaching activities. It also only applies at a nonprofit educational institution. If these three conditions aren’t met; the Classroom Use Exemption doesn’t apply. 

The Classroom Use Exemption only allows performance or display. Making or distributing copies (i.e., handing out readings in class) is not covered by the Classroom Use Exemption (though it might still be allowed sometimes as a fair use.) 

The TEACH Act (17 U.S.C. §110(2)) also creates some rights for teaching in the online environment, but it's more technical and there are a lot more restrictions. Most online teaching relies on fair use.

Fair use

Fair use (17 U.S.C. §107) is a BIG loophole inside copyright. It is a flexible exception; but can also be a little difficult to predict. Fair use is why things like quoting a book in order to review it, or publicly displaying a reproduction of an artwork in order to critique it, are legal.

Other exceptions, exemptions, and limitations

There are lots of other exceptions, exemptions, and limitations in copyright. A few interesting examples:

  • First sale (17 U.S.C. §109) says that once a single copy of a creative work has been sold, that particular copy can be redistributed by anyone. First sale is one of the legal rules that lets libraries lend materials to their communities. It's also how the used book, CD, movie, game, and software markets work (although contracts like End-User License Agreements also sometimes restrict resale.) 
  • Libraries are allowed to provide copiers, scanners, etc - without being liable for users' copying. Commercial copy shops, by contrast, may be liable for any infringing copies made on their machines.
  • Small businesses are allowed to have radios and TVs where customers can see and hear them - under certain conditions. If not for this exception, the TVs and radios might constitute unauthorized public performances!

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