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What is copyright?
Copyright is the right, created by statute, that the producer of a creative work has been granted to prevent others from copying it. Unlike a patent, however, in most places (i.e., countries) you don't have to apply for a copyright – you get one automatically every time you produce creative work. In the United States copyright is automatically applied from the moment of creation and has been since the 1988 adoption of the Berne Convention. For more detailed information consult the U.S. Copyright Office.
A creative work can be almost anything – a book, a song, a picture, a photograph, a poem, a phrase, or a fictional character. In the US, buildings built on or after December 1, 1990 are also eligible for copyright. Licenses may be granted to others, giving them the right to copy the work subject to certain conditions. A license is similar to a contract – the work may only be copied under the conditions given by the copyright holder or if one of the other exceptions to the copy right applies.
Copyright laws vary between countries; the relevant US law is in the U.S. Constitution, Article 1, Section 8; Title 17 of the United States Code (17 USC, Copyrights) and 37 Code of Federal Regulations, Chapter 11 (37 CFR 11). You may also wish to consult the Copyright Act of 1976, the Berne Convention, the Sonny Bono Copyright Term Extension Act, and the Digital Millennium Copyright Act. See Primary Sources on Copyright (1450 - 1900).
The Berne convention is a comprehensive international agreement on copyrights which is part of the copyright law of many nations. See Berne Convention.
Copyright does not protect against all possible copying: both US law and the Berne Convention limit copyright scope and enable much copying without permission even if the copyright holder objects. Specifically, broadcast and piano roll rights are specifically granted, with an automatic license fee, managed and collected by such organizations as BMI, ASCAP and BPI. In the US fair use (in the UK, fair dealing) is explicitly permitted as well, as is the right to sell a licensed copy of a copyrighted work, such as a video tape or sound recording. Also, both the Berne Convention and US law require that a work have some original creativity to be eligible for a copyright monopoly. Feist Publications v. Rural Telephone Service contains some examples of US decisions about what is and isn't original, including examples such as typo correction.
"Copyright is a temporary monopoly granted by the government – it creates the legal fiction that a piece of writing or composing ... is property and can only be sold by those who have been licensed to do so by the copyright holder". – Orson Scott Card
Note that it is limited to the form of expression, not to the ideas. Thus, a book by Agatha Christie is likely to be copyrighted, but the mere idea of a detective with an accent and odd personal mannerisms would not be, nor would a story about someone claiming to be the premier consulting detective in a major city be a violation of the Conan Doyle copyrights on Sherlock Holmes stories. Ideas and facts are not copyrightable in most places, only the form of expression of them.
A work which is not copyrighted is in the public domain, and may be freely copied by anyone. It may have been placed in the public domain by its creator, it may be ineligible for copyright (not original enough or otherwise excluded), or the copyright may have expired: in the United States for example, almost all works published prior to 1923 are public domain because their copyright term expired and in the UK and much of Europe, all musical recordings are in the public domain 50 years after release. (In the United States special laws have been passed to extend copyright for certain works beyond the normal term.)
All work produced by employees of the US Federal Government as part of their work is public domain—thus, much of the content found on US government websites (.gov and .mil) is public domain. However, the government frequently includes works on its websites which are copyrighted by someone else, and the US government can even own copyright on works which are produced by others. In other words, some US Federal websites can include works which are not in the public domain--check the copyright status before assuming something is public domain. Note also that this applies only to the US Federal Government. Most state governments retain the copyright on their work (California being a notable exception).
Works produced by the UK government are not public domain; they are covered by Crown copyright.
Seeing something on the Internet without a copyright notice does not mean that it is in the public domain. Only two countries, Uruguay and Paraguay, currently require copyright notices for a work to be covered by copyright.
If public domain work is included in a copyrighted product the new product is not public domain. The portions of the new copyrighted work that are from a public domain source may be removed and copied without permission. For example when a public domain text is included in a Wiki article any additional text or new creative elements are still under CC-BY-SA and the GFDL.
A derivative work is something that is "based on and a close copy of" another work. For example, the first Star Wars novelization is a derivative works of Star Wars Episode IV: A New Hope. Therefore, Del Rey Books required Lucasfilm's permission to publish and distribute the book.
You may not distribute a derivative work without the original author's permission unless you're using one of the rights they weren't granted (like fair use or fair dealing). Generally, a summary (or analysis) of something is not a derivative work, unless it reproduces the original in great detail, at which point it becomes an abridgment and not a summary.
Taking a work in the public domain and modifying it in a significant way creates a new copyright on the work. For instance, the Homecoming Saga by Orson Scott Card is a re-telling of the Book of Mormon. Therefore, the books in the Homecoming series can be copyrighted. However, the new work must be different from the original in order for a new copyright to apply, as the court ruled in Bridgeman Art Library v. Corel Corporation. The Bridgeman Art Library had made photographic reproductions of famous works of art from museums around the world (works already in the public domain.) The Corel Corporation used those reproductions for an educational CD-ROM without paying Bridgeman. Bridgeman claimed copyright infringement. The Court ruled that reproductions of images in the public domain are not protected by copyright if the reproductions are slavish or lacking in originality. In their opinion, the Court noted: "There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection.... But 'slavish copying', although doubtless requiring technical skill and effort, does not qualify." This ruling only applies to two-dimension works. For pictures of statues (which is, effectively, a translation of a three dimensional work into a two-dimensional copy) the picture taker has creative input into which angle to take the photographs from. Therefore, a new copyright is created when the picture is taken. Therefore, pictures of public domain 3D works are not free unless it was created by the uploader. In addition, in some countries such as the United Kingdom, simple diligence is enough for a work to be copyrightable (including reproductions of public domain works). The position of the Wikimedia Foundation on this, however, is that any reproduction of a two-dimensional work in the public domain is not copyrightable, for otherwise the very purpose of a public domain would be defeated as to such works.
Pictures of copyrighted buildings are not considered derivative works, unless the country it is photographed in does not have freedom of panorama provisions (such as France or Italy). In United States copyright law though, "The copyright in an architectural work that has been constructed does not prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work – but only if the building in which the work is embodied is located in or ordinarily visible from a public place."
What is fair use?
Under certain conditions, you may copy a copyrighted work without a license from the original author. One of these limitations on the rights granted to the copyright holder is called "fair use." A more restricted version called fair dealing generally applies outside the United States. Generally, fair use exceptions are ill-defined, and vary widely from country to country. What is fair use in one country may not be in another country. Under US copyright law, the primary things to consider when asking if something is fair use (set forth in Title 17, Chapter 1, Section 107) are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Asking yourself these questions might help you determine if something is fair use:
- Is it a for profit competitor or not?
- Is it for criticism, comment, news reporting, teaching, scholarship, or research?
- Is the use transformative (of a different nature to the original publication)?
- Is it a highly original creative work with lots of novel ideas or a relatively unoriginal work or listing of facts?
- Is the work published (to a non-restricted audience)? If not, fair use is much less likely.
- How much of the original work are you copying? Are you copying more or less than the minimum required for your purpose? The more you exceed this minimum, the less likely the use is to be fair.
- Are you reducing the quality or originality, perhaps by using a reduced size version?
- Does this use hurt or help the original author's ability to sell it?
- Did they intend to or were they trying to make the work widely republished (as with a press release)?
- Are you making it easy to find and buy the work if a viewer is interested in doing so?
None of these factors alone is sufficient to make a use fair or not fair - all of them must be considered and weighed. It's routine for courts to express degrees of acceptability or unacceptability for each factor and try to come to a summary and conclusion based on the balance.
Quotations are a very well known and widely used form of fair use and fair dealing and are explicitly allowed under the Berne convention.
If you produce a derivative work based on fair use, your work is a fair use work. Even if you release your changes into the public domain, the original work and fair use of it remains and the net effect is fair use. To eliminate this you must make the use of the original so insubstantial that the portion used is insufficient to be covered by copyright.
It is possible for a work to be both licensed and fair use. You may have a license which applies in one country or for one use and may make fair use in other cases. The licenses help to reduce the legal risk, by providing some assurance that there won't be legal action for the uses they cover. It's often wise to ask for a license, even a restrictive license, even if you are sure that your use is fair.
A license is a permission to use a work in the way described by the license. A single work can have as many licenses as the creator decides are useful.
Example - the very widely used database MySQL is available with at least two possible licenses, one a GPL license, the other a license allowing distribution of modifications without compelling publication of source code.
It's very common for a copyright holder to provide licenses tailored to the needs of an individual large business customer; it's much less so for individual, and small business customers. Typically, individuals will use one of the following boilerplates:
There are many different kinds of non-commercial licenses, but generally they say something like You may use, copy, or distribute this work for non-commercial purposes.
Example: "Images contributed to this database by the Canadian Olympic Committee (COC) may be reproduced for non-commercial purposes without asking permission from the COC or paying copyright royalty" Jimbo has prohibited the use of these. However, they may still be used under the doctrine of fair use.
It is very common for scientific works to allow educational use. What each publisher considers to be educational varies. Some consider only schools and colleges to be educational, others include all forms of public education, including encyclopedias, to be educational. Jimbo has prohibited the use of these. However, they may still be used under the terms of fair use.
Permissive licenses allow for unrestricted use, modification, and distribution of a copyrighted work. The modified BSD license, the X11 license, and the MIT license are each examples of permissive licenses. These licenses seek to make it as easy as possible to reuse the licensed work: the objective is generally to make the work available and as widely used as possible, but without releasing it to the public domain. Those using permissively licensed works can relicense derivative work under more restrictive license terms. Because of the very limited license requirements, license incompatibility problems with this type of license are relatively uncommon, so it is very easy to reuse these works.
An attribution license is a permissive license with an additional requirement of attribution of previous authors' works in any derivative work. An attribution licenses says (essentially): "You may use, copy, or distribute this work, as long as you give credit to the original author." The original "four clause" BSD license is an example of an attribution license.
Example: "Photo by John Smith. Copyright 1999. Permission granted for free use and distribution, conditioned upon inclusion of the above attribution and copyright notice."
Some licenses are called "copyleft" licenses. Essentially, they have three key properties:
A work licensed with a copyleft license can be copied at will.
All published derivative works must use exactly the same license as the original: if you use the work, you're forced to use the same license for your own original work as well.
If your work is using a different license, you can't use the copyleft license, even if your work is also using a (different) copyleft licence.
You aren't forced to use the copyleft work as part of your own work if you don't want to accept the license.
There is increasing awareness of the license incompatibility problem of copyleft licenses, since many people are simply trying to force reusers to publish the source of their work. Licenses which allow the use of other copyleft licenses seem likely to evolve to overcome the fragmentation of the copyleft world. Today, multiple licensing (licensing under all desired copyleft licenses) is the best workaround available. Sometimes people don't want to solve this problem: they may believe that the Free Software Foundation or Creative Commons is best and may want to hurt the one they dislike or promote only the one they like.
Example: Alice writes a thesis on St. Peter and releases it under a copyleft license. Bob wants to use part of her thesis in his book about the Bible, but if he does, he would have to release his book under the same license. This would let others copy Bob's book whenever they want without paying him for it.
Example: Alice writes a programming language example at WikiBooks. Bob can't use it in his GPL computer program because the GFDL and GPL are different and incompatible copyleft licenses. Alice would need to offer both a GFDL and GPL license to allow this use.
Example: Alice writes a thesis. Bob wants to use part of the thesis in a description of a trade secret. He can't do this, because the license requires him to not restrict distribution to only those who agree not to publish the trade secret. Bob would need to ask Alice for a different license.
Creative Commons licenses
"Creative Commons License" (CCL) may refer to one of several licenses written by Creative Commons (founded by Lawrence Lessig). Most of the CCLs allow non-commercial distribution of the work if it's unmodified, but different ones allow different combinations of various features:
- Requiring attribution.
- Noncommercial (disallowing commercial reuse).
- No Derivative Works (prohibiting someone from distributing a derivative work).
- Share Alike (copyleft) (requiring someone to distribute their derivative work under the same license).
Some of the deprecated licences still apply full copyright to people in developed countries (Developing Nations Licence), or don't permit distribution of the whole work (Sampling Licence)
Typical commercial licenses
A typical commercial license is written to prohibit redistribution and limit the rights of the licensee as far as practical while still allowing them to make some use of the work. While any license is better than no license, these are often very restrictive.
- This page was last modified on 6 October 2011, at 16:11.
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