Under Article I, Section 8, Clause 8,the United States Constitution grants Congress the power “To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive Right to their respective writings and discoveries." Established to promote creativity and innovation, this provision establishes the basis for patent law and copyright law in the United States. Congress has since enacted and amended legislation to grant the owner (author, artist, composer, photographer, etc.) of original works certain specified exclusive rights to their works for a limited period of time. Copyright owners have exclusive rights to:
Reproduce the work in whole or in part
Distribute the work publicly by sale, loan, or gift
Prepare derivative works based on the protected works
Perform and/or display the work publicly
The Copyright Office of the Library of Congress oversees the administrative functions of the copyright law. Congress enacts copyright laws. The Federal courts interpret and enforce the copyright law.
GCFLearnFree.org. Understanding Copyright, Public Domain, and Fair Use. YouTube. 17 Sep. 2018
Copyright protects works of authorship that are:
Original - there must be some degree of creativity in the making of the work, not a copy of another person’s work
Fixed - work must be written down or recorded on a physical or digital medium
Owned – typically, the work is owned by the individual who created it, their employer under certain conditions or another who acquires the rights
Categories of works that can be copyright-protected:
Literary works
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works
Computer programs/software
Compilations of works and derivative works
Copyright does not protect everything. Categories of works that are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice:
Ideas – copyright protects original works of authorship, not ideas
Works that have not been fixed in a tangible form of expression by being written, recorded, or captured electronically
Titles, names, short phrases and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listings of ingredients or contents (these may be protected under trademark law)
Facts, data, procedures, methods, systems, processes, concepts, principles, discoveries or devices (except for facts, certain of these may be protected by patent or trade secret law)
“Orphan works” that cannot be traced to original authorship
Works created by the U.S. Government.
Constitutions and laws of state governments
Works for which copyright protection has expired; works in the public domain.
Digital and electronic content enjoy the same protection under the U.S. Copyright Law as non-digital, traditional, and analog works. Both electronic and non-electronic databases (such as professional directories and collections of images) may be copyright-protected if they reflect some level of creativity by the author in the selection or organization of the data and the conditions for copyright protection are otherwise met. Moreover, any non-digital content that is protected by copyright law is protected in its digital form as well.
Copyright lasts from the moment a work is created until 70 years after the death of the author, except for works produced by a company/employer or other "works for hire" in which case the copyright lasts 95 years from the date of publication or 120 years from creation, whichever expires first. Works created and published prior to 1978 may be protected for different lengths of time. Works no longer protected by the copyright law automatically pass into the public domain. For more information, see the Copyright Status Chart by the Cornell Copyright Information Center.
It is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether a use is fair use and identifies certain types of uses—such as criticism, commentary, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. The Act calls for consideration of the four factors in determining whether a use made of a work is fair use. Fair use is technologically neutral and applies to all formats and modalities.
The first factor takes into account the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
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*Transformative Use: Transformative use is particularly favored in determining fair use. For a use to be considered "transformative," the material taken from the copyrighted work should be significantly changed for a broadly beneficial purpose different from that of the original. It should not just repeat the work for the same intent and value as the original.
This factor looks at the creativity of the copyrighted work. Fair use generally favors use of factual works over fictional works. Fair use also favors published works over unpublished works as authors should be able to decide when they publish their works.
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This factor considers the quantity and quality of the copyrighted work being used. Use of copyrighted material is more likely to be fair under the third factor when a small quantity is used and when the portion used is not central or significant to the entire work. Regardless of the amount of work used, if it is from the “heart” or essence of the work, it may not be considered as fair use.
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The fourth factor takes into account how the unlicensed use harms the existing and future market for the original copyrighted work. When use is transformative, it is less likely that the market for the original work is damaged.
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*Uploaded and made available on the Web or other public forums: While earlier court decisions were based on the amount of work copied, more recent decisions have been based on how much of the work has been made available to the public.
*Numerous copies: If numerous copies of a work are made and widely distributed (for example, the work is used in multiple sections of a course or is distributed to the general public), it is more likely that such use of a work will not fall under fair use.
*Repeated Use: Even if a use of a work is deemed fair use for one semester, repeated use of the same copyrighted content semester over semester may not be considered fair use because there is enough time to seek a license from the copyright holder to use the work.
Fair use is an important doctrine but must be used with caution. The four factors discussed above are non-exclusive; thus other factors may be considered in determining whether a use of a work is fair use. A final determination of fair use requires weighing and balancing all four factors before reaching a conclusion. Therefore, not all educational use of copyrighted works falls under fair use. Similarly, there is no set formula to ensure that a predetermined percentage or amount of work - or a specific number of words, lines, pages, copies - may be used without permission. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts are free to adapt the doctrine to particular situations on a case-by-case basis.
There is a growing movement in technology, research, and education to allow and encourage free access to information and open collaboration. Instead of navigating the complex copyright laws and fair use doctrine, educators can take advantage of platforms such as Open Educational Resources (OER), Creative Commons (CC), open access (OA), and public domain materials; as well as Library licensed materials. Materials published under CC and OA licenses are protected by the U.S. copyright law but the licensing structures allow users to use and share those works without having to request permissions or make fair use determinations.
Open educational resources are materials for teaching or learning that are either in the public domain or have been released under a license that allows their free use, modification, and redistribution.
Open Access (OA) license allows users to have immediate, unrestricted, digital access to content published under that OA license.
Creative Commons licenses provide a standard way for content creators to grant someone else permission to use, 
For content published under the Creative Commons license, please remember to check the creative commons licenses before reusing or modifying the resource. The license may not give you all of the permissions necessary for your intended use and may require specific attribution requirements. Please refer to Creative Commons Quick Reference.
Creative Commons Licenses by D'Arcy Hutchings is licensed under a Creative Commons Attribution 4.0 International License.
