5.3.1: Copyright and Licensing

Definition: Copyright Law

"[T]he body of laws and regulations that govern the exclusive rights of an author or creator to make copies, license, and otherwise exploit their literary, musical, or artistic work." (dictionary.com)

Creator's Rights and Copyright

Copyright is a legal protection that gives creators control over how their works are used. This can include writing, art, music, and more! From the moment that a "work" is created in a tangible form (that is written, recorded, painted, etc.), they automatically own the copyright to that work.

Copyright protects a creator's right to:

• Make copies of their work
• Sell or distribute copies
• Create new works based on the original (like a song remix)
• Perform or display their work in public

For example, if a musician writes a song, only they can legally sell that song, make new versions of it, or perform it publicly. However, they can give other people permission to do those things.

Unless they are given away for some reason, copyright usually lasts for a long time (usually the creator's life plus several decades). While copyright does a lot, there are certain uses that it does not prohibit.

Chiefly, you are generally allowed to use works for the purpose of criticism, parody, and to provide access for the visually impaired. An example of using works for parody, is Weird Al Yankovic, who has parodied many popular songs.

[Man Mixing Tracks as DJ for the Party (External Link) by @Darren2 (External Link), Licensed CC0 (External Link)]

When a work that has at least a small degree of creativity to it is created in tangible form, it automatically gains copyright protection. This work does need to be fixed into a permanent medium/form of some kind (like a digital image or written paper). Typically, in the United States, copyright protection lasts for the life of the author plus seventy years after their death. After copyright expires, the work is put in the public domain and anyone may use it however they like (U.S. Copyright Office).

Global Aspects of Copyright

Copyright laws vary between countries; however, there are international agreements that help to standardize the laws. So what does that mean for you when you share your works on the internet? Fortunately, copyright law is locally implemented by each country - meaning that you normally only have to worry about your own country's copyright laws.

What is the Public Domain?

The public domain refers to all creative works that are no longer protected by copyright or never had copyright protection. This means that anyone could use these works without needing the permission of their original creator. Works enter into the public domain in a few ways:

• The copyright has expired (In the United States, copyright typically lasts for either 95 years after publication [for works by a corporation] or 70 years after the death of the creator).
• The creator chooses to give up their copyright (which can be done using Creative Commons licensing).
• The work was never protected by copyright (This includes things like government publications).

The public domain allows for anyone to use these works and this can be great for creativity, allowing for new artists, writers, and performers to take inspiration from public works. Even some of the most well-known stories (and some that have been immensely profitable in modern times) come from public domain works. Disney, in particular, has made many movies based on works in the public domain including The Hunchback of Notre Dame, Peter Pan, Alice in Wonderland, and The Princess and the Frog.

What is Fair Use?

Fair Use is (in the United States) an exception to copyright law. It allows you to use creative works in specific ways. This is primarily meant to allow use for education, criticism, news reporting, and parody. Generally, fair use allows for the use of small portions of a work. However, there are four specific factors that determine whether or not fair use is allowed:

1. The purpose and character of use. Are you using it for a commercial/for-profit use, or a non-commercial use such as education? Education and other non-commercial uses are more likely to be allowed.
2. Nature of the original material. Is the original work published or unpublished? Is it fact or fiction? Highly creative works are less likely to be allowable for fair use.
3. The amount of the original work used. Are you only using a small part of it? The larger portion that you use, the less likely it is to be allowed.
4. Effect on the original work's value. Is your use going to have a financial impact on the work's creator? If it harms the market value of the work, your use is less likely to be allowed.

It should be noted that while parody and criticism are allowable for fair use, satire is not. Parody is a comedic commentary about a work. By its nature, it requires that you imitate the work. While satire is sometimes comedic, it is used to offer commentary or criticism about the world rather than about a specific work.

Common examples of projects where fair use is generally allowed:

• A student project
• Using short sound or video clips for teaching
• A library creating a digital copy of a work for the purpose of research
• Citing other's research in scholarly articles
• Providing access for the disabled

U.S. courts have recently placed more emphasis on the concept of transformation. Transformation refers to whether or not your use of someone's work builds on the original work in a different manner or for a different purpose. In order to rule in favor of it being fair use, the courts look to see if your use is significantly differently than the other work's original use. For example, such a transformation could include making changes to a work to use it for an entirely new purpose (such as combining clips of movies for social commentary or teaching) (Lowry).

Fair Use in Different Cultures

It is important to note that many of the laws and practices mentioned in this chapter are based on United States law. Other cultures have their own ways of viewing copyright. Goodyear (2022) suggests that the Copyright Act of 1976 is a western creation strongly influenced by the forces of racism and nationalism. In particular, Goodyear notes that until the 1960s, copyright law often failed to properly recognize and compensate Black and non-western artists and creators. They also note how U.S. Copyright Law centers the tangible form of a creation in determining copyright, a requirement that favors written over oral music; neglecting tribal music that was often not written down. Hathcock (2017) agrees that even in modern times, the continued focus of U.S. copyright on the written word excludes the "cultural production of many non-white, non-Western groups" (p. 13).

To show an example of difference in copyright, India’s copyright law includes thirty very specific exceptions. For example, it specifically allows for temporary electronic storage. They have allowances similar to fair use, but they are restricted to more specific use cases (Goodyear). As we consider our own rights to protect and share our works, it's also important to consider how our own cultural laws may limit or exclude certain types of cultural expression.

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Sources

• "Copyright Law." dictionary.com, https://www.dictionary.com/browse/copyright-law. Accessed 26 September, 2024.
• Creative Commons. "1.1 The Story of Creative Commons." https://certificates.creativecommons...ative-commons/. Accessed 14 October, 2024.
• Goodyear, Michael P. "Culture and Fair Use." Fordham Intellectual Property, Media and Entertainment Law Journal, vol. 32, no. 2, 2022, pp. 334-390.
• Hathcock, April. "Confining Cultural Expression: How the Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion." American University Journal of Gender, Social Policy, & the Law, vol. 25, no. 3, 2017, pp. 239-260.
• Lowry, Cheryl. "Choosing and Using Sources: A Guide to Academic Research." Libretexts.org, https://commons.libretexts.org/book/human-81142.
• U.S. Copyright Office. "What is Copyright?" Copyright.gov, https://www.copyright.gov/what-is-copyright/. Accessed 14 October, 2024.