Copyright

Summary

It’s important to have a solid foundation in copyright basics. Most people have heard of copyright, of course, but few understand what it actually is, why it exists, what it covers, and how it is granted.

What is copyright?

  • Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. The law gives the creator of a work (like a book, movie, picture, song, or website) the right to say how other people can use it.
  • Copyright covers both published and unpublished works.

What is the purpose of copyright?

  • Copyright protects the economic rights of the creator, incentivizing them to create new works, which in turn benefits society.
  • Copyright protects the moral rights of the creator by giving them credit, thereby maintaining the integrity of the work.

What are the fundamental concepts underlying copyright?

  • Grants a set of exclusive rights to the copyright holder.
  • Protects literary and artistic works that are original. For instance, you can’t claim copyright over the digital scan of a photograph because U.S. lower courts have ruled that a scan is not an original work.
  • Does not protect facts or ideas. You cannot copyright the phone book, for example.
  • Lasts a long time. How long? Well, that part is more complicated because copyright law has undergone many changes and requirements over the years. But copyright doesn’t last forever.
  • Is now automatic. While historically this wasn’t the case, today any original work in a fixed format is automatically covered by copyright. So if you sketch an image on a napkin, it is copyrighted. But if that image was sketched in 1925 it wasn’t automatically copyrighted.
  • Is balanced against public interests. For example, we can copy a work to meet the needs of people with disabilities.

Exceptions and Limitations

Copyright law has built-in exceptions and limitations that are meant to balance the interests of the creator with the public interest. Sections 107 (fair use), 108 (exceptions for libraries and archives), and 109 (first sale doctrine) are particularly relevant to libraries, museums, and archives. Learning more about these exceptions may help you feel more comfortable digitizing certain copyrighted materials and sharing them online. Be sure to include any stakeholders from your organization who need to be part of copyright-related decisions. Also, be aware that you may not find clear-cut answers to your copyright questions unless/until the question is decided in court. It is up to your organization how much risk you are willing to tolerate.

Public Domain

A work enters the public domain when its copyright expires or when the copyright holder legally releases it into the public domain. In some cases, the work was never eligible for copyright to begin with. Facts and data are not eligible for copyright, for instance. Also, works created by the federal government are generally part of the public domain. The public domain is an important source for creativity and new knowledge.

Tips for Evaluating Copyright

Evaluating copyright for works already in your collection is an important (but labor-intensive) ongoing activity. You can reduce that workload somewhat by dealing with rights during the donation process. Work with the donor to determine who owns the copyright, and whether the copyright owner would be willing to either transfer the rights to your organization or license it for public use. Be aware that owning a physical copy does not imply rights ownership, so don’t assume that the donor is also the rights holder. Similarly, an organization cannot claim copyright simply for holding physical or digital objects.

Tools for Describing Rights

Rights Statements and Creative Commons Licenses are two tools for articulating the rights held over a work. We encourage you to be as clear as possible when describing rights, not just for legal protection, but so that users understand how they can interact with that work. It’s an important part of increasing access to your online collections. 

  • Rights Statements are objective statements that allow anyone to describe a work’s copyright status without claiming ownership of that copyright. 
  • Creative Commons Licenses are legal licenses issued by rights holders that give specific permissions to users beyond what copyright law allows. They may seem similar in their language and graphic style to Rights Statements, but CCLs can only be issued by the rights holder—an important distinction.

If your organization holds indigenous collections, then you may be interested in using Traditional Knowledge Labels (TK Labels). These allow your community to express specific conditions for sharing that are consistent with existing community rules, governance, and protocols.

Suggested Recordings, Readings and Policy Creation Guides

Discussion Questions

  • How has your organization historically handled materials with copyright/access/permission restrictions? How do you plan to address them in the future?
  • Are there any copyright or donor restrictions for items in your digital collections? How will you manage these restrictions and inform users?
  • Do you restrict access to any of your collections?
  • How do you manage access to collections that have cultural considerations?
  • Do you have a process for evaluating copyright for existing collections?
  • Do you have a process for transferring rights for donations?
  • Have you ever used standardized rights vocabularies like Rights Statements or Creative Commons Licenses?