LibGuides: Copyright & Author Rights: Home

Copyright in Scholarly Communication

In general terms, intellectual property is any product of the human intellect that the law protects from unauthorized use by others. The ownership of intellectual property inherently creates a limited monopoly in the protected property. Intellectual property is traditionally comprised of four categories: patent, copyright, trademark, and trade secrets.

-- Cornell University Legal Information Institute

The ultimate purpose of copyright legislation is to foster the growth of learning and culture for the public welfare, and the grant of exclusive rights to authors for a limited time is a means to that end. This guide focuses on copyright as it applies to your intellectual property rights as an author. See also ODU's Policy on Intellectual Property.

SOME BASIC DEFINITIONS

The constitutional purpose of copyright is to promote the progress of science and the useful arts. Title 17, U. S. Code

Copyright gives authors and creators the power to allow or prohibit certain uses of their “original works of authorship" that are "fixed in a tangible form of expression.”

As a copyright owner, some of your rights are to:

Reproduce the work --> make copies in any medium
Prepare derivative works based upon the work --> translations, adaptations (books, articles)
Distribute copies to the public by sale or other transfer of ownership or by rental, lease, or lending
Perform or display the work publicly --> generally for creative works
Authorize others to exercise these exclusive rights, subject to certain statutory limitations.

NOTE:

Exclusive rights are limited:
- Generally, at least the author’s life plus 70 years from the author’s death
- Copyright can be renewed
Copyright can be transferred
There are exceptions to the exclusive rights (eg, fair use)

Copyright is Automatic:
- The moment an original expression of the author becomes fixed in a tangible medium, the author has exclusive rights.
- © symbol is not necessary (since 1989)
- You are not required to register your copyright

Just because something is on the Internet, doesn’t mean it’s public domain.

Public Domain indicates works that are either no longer protected by copyright or never were. Copyright permission is not needed for their use, although attribution is recommended. Examples:

Generic information -- ideas and facts -- is not copyrightable.
Works whose copyrights have expired or were not renewed (applies to works created before 1978).
- All works first published in the United States prior to 1923.
- Works from1923-1963 whose copyright registrations were not renewed.
Works created prior to March 1989 that failed to include a proper notice of copyright.
Works created by the U.S. federal government.

Any work published after March 1, 1989 is protected by copyright, even if no notice of copyright is present.

See Copyright Term and the Public Domain in the United States (Cornell University Library) for a detailed chart.

Just because it’s for education doesn’t mean it’s a “fair use.”

Fair Use allows others to use copyrighted works without the permission of the copyright holder – limited portions, for limited use, for limited purposes.

From Cornell University Legal Information Institute:

17 U.S. Code § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

All factors must be considered together. The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. It is advisable to use a Fair Use Checklist and keep it on file. Or, use the Fair Use Evaluator (2008 Michael Brewer & The ALA Office for Information Technology Policy).

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

"Digital Millennium Copyright Act" 1998 addresses copyright as it relates to digital technologies.

Allows more copies for preservation & archival purposes.
Prohibits circumvention of technology that prevents access to a work.
Prohibits manufacture or sale of anti-circumvention technologies.
Prohibits removal or alteration of copyright management information.
Limits liability of online service providers (OSP) who must take down challenged pages and educate staff about the law.

"Technology, Education and Copyright Harmonization Act" addresses the needs for educational uses of copyrighted materials in distance learning.

Provides guidelines for interpreting fair use in regard to online programs such as Blackboard.
Allows the digitizing of analog or print works, but in most cases only if the work is not already available in digital form.
Rights of use are also often limited to certain works, in limited portions, and only under rigorously defined conditions.

Faculty must comply with the many and diverse requirements of the law. See a Brief Guide to the TEACH Act.

Creative Commons is a way for creators to share their works while maintaining their copyright.

"The combination of our tools and our users is a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law."

TYPES of CC LICENSES available to creators/authors.