Copyright law is contained in chapters 1 through 8 and 10 through 12 of Title 17, US Code. It is one of the powers enumerated to Congress in Article I, Section 8 of the US Constitution. The Framers’ intent was “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.” However, many of the guidelines informing us how to interpret copyright are nowhere to be found in the Constitution or US Code, but were rather determined by judicial opinion, including that of the Supreme Court, in hundreds of cases.
Note that the Constitution does not guarantee compensation for intellectual property via copyright. In fact, the opposite is true. The Framers respected private property so much that they wrote into the Fifth Amendment of the Bill of Rights that private property cannot “be taken for public use, without just compensation.” This is called the Takings Clause. Yet, when a copyright expires, this is exactly what happens. Congress, after a “limited” time, takes back the “exclusive Right” that it lent to a creator, and is not required to pay “just compensation.”
Your intellectual property does not, therefore, belong to you. It belongs to the public, the highest governing body of which lends you a monopoly on it temporarily. That you may have benefited from copyright during this time is a side effect of the law. Copyright’s sole purpose is the promotion of “Progress.”
So what exactly does copyright do?
Copyright secures for creators of intellectual property or their designees the exclusive right:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission (17 U.S.C. § 106).
Copyright allows for rights holders to authorize that others may do the above things, to pass on a copyright to their heirs or to transfer it to someone else. Temporary licenses to do the above things with a copyrighted work can also be issued by the rights holder. And, often, copyrighted works are produced “for hire,” and the company that the creator did the work for will be the rights holder.
How long does copyright last?
It’s complicated. Cornell has put together a very useful chart of copyright terms.
Until 1978, rights holders had to register their works with the US Copyright Office upon publication. If they did not, their works would be part of the public domain, free for all to copy and use how they saw fit. Rights holders also had to register for renewal after the initial term had elapsed, or their works would pass into the public domain at that point.
The first copyright law in the United States, the Copyright Act of 1790, established a copyright term of fourteen years with another fourteen years granted upon renewal. The Act was amended in 1831, extending the initial term of copyright to 28 years, while the fourteen-year renewal period remained the same. Another amendment in 1909 extended the renewal period to 28 years as well.
In 1976, the Copyright Act was thoroughly revised. Under the new Act, creators no longer have to register for copyright as long as they include notice of copyright upon publication, and renewals are no longer necessary. Beginning with works published on or after January 1, 1978, works by a single author received copyright protection for a term of the author’s lifetime plus fifty years. For works by multiple authors, this term is measured from the date of the last surviving author’s death. Works for hire and anonymous and pseudonymous works received copyright protection for 75 years from publication or 100 years from creation, whichever was shorter.
In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, extending the duration of copyright protection to the author’s life plus seventy years for single-author works and to 95 years from creation or 120 years from publication on works for hire and anonymous or pseudonymous works. Unlike previous extensions, this act prevented any new works from entering the public domain by virtue of copyright expiration for twenty years. Since renewal was no longer necessary and since the act applied to all works under copyright at the time that the bill was signed into law, all works published on or after January 1, 1923, would remain under copyright protection until January 1, 2019. No further term extensions were passed, and works from 1923 entered the public domain on that date. Barring future legislation, works from subsequent years will pass into the public domain each January 1 as their 95-year terms expire.
What about Open Access?
Open Access refers to intellectual content that is freely available online. The word, “free,” in this context, expresses both its meanings at once, gratis and libre. Open Access content is both free of cost and free of most licensing restrictions, but this does not mean that Open Access content is not copyrighted. Copyright is affixed automatically upon publication. However, creators can choose to supplement copyright with a Creative Commons license that allows others to legally copy, distribute, remix, revise and build upon their work. Sometimes publishing under an open access license is made a condition for research funding.
There are several licenses to choose from, and they allow for a wide spectrum of access. All Creative Commons licenses will allow you to copy and distribute the work as long as you attribute the original author, most will allow you to adapt the work to your purposes, and some will even allow you to use the work commercially.
By releasing your work under a Creative Commons license, you can share your work with the community while being assured that it is only being used in the ways that you approve. For example, you might want to allow web designers to use your photos, but only for noncommercial purposes, or you might want to allow other musicians to remix your song, but only if they share the new song under the same license. Scholarly Open Access works are read and downloaded more often, and there is even some evidence that they have higher rates of citation. Creative Commons has a handy license chooser tool that will help you choose the one that works best for you.
For more information, see our Open Access subject guide.
Despite the fact that the right to copy, derive, distribute, display, perform or transmit a copyrighted work lies exclusively with the rights holder, the very next section of the Copyright Act defines certain situations where it is legal for anyone to do these things without even asking permission. This is known as “fair use.”
The Act specifically states that using copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It goes on to outline how a judge would determine if use of copyrighted material was fair. The factors to consider are:
(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 (17 U.S.C. § 107).
The good news is that nonprofit education is a highly favored factor in fair use determination. The bad news is that we cannot offer any hard-and-fast rules as to what constitutes fair use. Not even the US Copyright Office can do that. As they write:
Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.
Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use.
Only a judge can legally evaluate a fair use claim, and most people don’t want to get sued just to find out what fair use means, so it’s everyone’s responsibility to consider all four factors above when they use copyrighted material. For example, reprinting a colleague’s unpublished work, even for the permissible purpose of criticism, would likely not be fair use due to factors two and four. Making multiple copies for teaching is specifically allowed, but making multiple copies of a custom textbook or coursepack would likely not be considered fair use, as it would have a negative effect on the market for that work.
“The fifth factor:” Transformative Use
Recent case law has added a fifth factor to fair use determination that sometimes outweighs the others. In Campbell, aka Skyywalker, et al. v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994), the Supreme Court, recognizing that copyright’s intent is the promotion of progress, ruled that “transformative” uses of copyrighted material are also fair use. Campbell’s group, 2 Live Crew, requested a license to use Roy Orbison’s song “Oh, Pretty Woman” in their parody, “Pretty Woman.” Acuff-Rose Music, the rights holder, refused, but 2 Live Crew released the song anyway. The company sued for copyright infringement and lost, but they won on appeal.
In deciding to hear Campbell’s subsequent appeal, the Supreme Court noted the inherent tension between copyright protection and creative uses of copyrighted works. Justice Souter wrote the unanimous opinion, which traced this tension all the way back to British common law. Souter quoted Lord Ellenborough, who wrote that “while I shall think myself bound to secure every man in the enjoyment of his copy right, one must not put manacles upon science.”
The Court reversed the appeal, remanded the case, and it was settled out of court. The first and third factors of fair use determination weighed most heavily in Campbell’s favor. In their directions to the lower court, the Supreme Court wrote of the first factor that “Parody, like other comment and criticism, may claim fair use.” They continue:
The enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors.
The Appeals Court, following precedent, had ruled that 2 Live Crew had copied the “heart” of the work and thus their parody was not fair use on the basis of the third factor. The Supreme Court disagreed with this interpretation of “the amount and substantiality of the portion used,” writing:
Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's "heart," that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.
With this ruling, the Supreme Court changed the interpretation of fair use in a very substantial way. Now, derivative works can be deemed to be transformative, and thus fair uses, if they use a source in new and unexpected ways, and this factor alone can qualify that use as fair, even if all four other factors of fair use determination would have weighed against it. This is what allows for television shows to use clips from other shows for satire and for other transformative uses including the creation of remixes and mashups, livestreaming, making works accessible to those with disabilities and making copies as part of a new technology, such as Google Images’ use of thumbnail images for searching.
How can I use copyrighted material for instruction?
Section 110 of the Copyright Act deals with instruction. It provides wide latitude for the use of copyrighted materials in on-campus instruction, and it was amended by the TEACH Act (Pub. L. No. 107–273 § 13301) in 2002 to make the rules for distance learning more congruous with face-to-face instruction.
It is fair use for students and educators at nonprofit educational institutions to perform or display lawfully acquired copies in person on campus. It is also fair use to do so online with entire “nondramatic literary or musical” works and “reasonable and limited portions” of other works. There are a few caveats for online learning. The work must not be “produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks,” it must be “an integral part of a class session,” and the audience must be limited to officially enrolled students.
It’s the school’s responsibility to institute copyright policies, provide accurate information regarding copyright to students, faculty and staff, to provide “notice to students that materials used in connection with the course may be subject to copyright protection” and to ensure that technological measures are in place to prevent download or sharing of the copyrighted content.
How can the library help me use copyrighted material ethically?
You may have heard that it is fair use to copy only a certain number of pages or a certain percentage of a work. Or maybe someone told you that if you need to use the work sooner than you could possibly expect to obtain permission, then this is fair use. And you included the copyright notice on your copies, so it’s fair use, right? Sorry, no. That was all bad advice.
In 2012, the Association of Research Libraries (ARL) published a Code of Best Practices in Fair Use to update librarians on how we can help our users to navigate fair use issues. The arbitrary limitations are gone (such as numbers of pages allowed, which had no basis in law), and in their place are new guidelines based on solid research into how courts decide fair use cases. Those old, often repeated guidelines, intended to be “safe harbors” that would ensure that libraries and their users operated within copyright law, eventually became “outer limits” that were neither legal nor practical.
Congress and the courts recognize the importance of libraries in the promotion of “the Progress of Science and useful Arts,” so Section 108 of the Copyright Act is specifically devoted to libraries and archives, and allows us to make and circulate exactly one copy of any copyrighted work, as long as we satisfy three requirements. The reproduction must not be for commercial advantage, it must contain a notice of copyright, and we must be open to the public or to researchers. Libraries and archives can make, but cannot circulate outside of the premises, exactly three copies of works that are unpublished, that have been lost, stolen or damaged, that are deteriorating or exist in an obsolete format or that cannot be obtained at a reasonable price.
Furthermore, the ARL has found that it is fair use to:
- make course-related content available online;
- use collection materials to publicize library activities and create exhibitions;
- digitize in order to preserve at-risk or hard-to-access items;
- reproduce materials in accessible formats and retain those reproductions;
- create digital collections of archival and special collections materials;
- make works deposited in institutional repositories publicly available;
- create databases to facilitate non-consumptive research uses;
- create topically based collections of websites and other material online.
How can’t the library help me?
As mentioned above, we cannot offer you legal advice or any guidelines about what is or is not fair use. We also can’t exercise fair use, ourselves, or avail ourselves of our capabilities under Section 108 unless we own the material.
The reason that libraries can lend items (or that used bookstores and garage sales are legal) is because of something called the “first sale doctrine,” which can be found in Section 109 of the Copyright Act. Basically, this section says that once you buy a copy of a protected work, you can dispose of it how you wish, including by lending. And, though it is not legal to rent, lease or lend a sound recording or computer program for profit, it is legal for nonprofit libraries and educational institutions to do so. However, it is not legal to do so with digital content at this time, as a recent case making its way through the appellate courts has denied a right of digital first sale.
However, library collections have changed a lot over the years. These days, much of our collection consists of electronic resources that we do not own, but rather license. Our use of these materials is bound by the license agreement between the library and a provider that is usually, itself, a licensee of the rights holders on the copyrighted works that the provider makes available to the library. These licenses are more restrictive than the law. To use these resources in any way other than that stipulated in our license agreement, we would have to seek specific permission from both the electronic resource provider and the copyright holder. It is usually easier to purchase a physical copy if one exists.
The DMCA and DRM
The library also cannot help you to break encryption on a DVD or circumvent any other Digital Rights Management (DRM) technologies. We cannot provide hardware or software that allows you to do so, as this is considered “trafficking” (17 U.S.C. § 1201).
Circumvention of DRM was made a criminal offense by the Digital Millennium Copyright Act (DMCA), passed along with the Sonny Bono Copyright Term Extension Act in 1998. The DMCA made it illegal to circumvent “access control” technologies, such as your Spotify password, but not “copy control” measures such as Macrovision on a VHS tape. This means that it’s still legal to screen-capture a DVD that you own if the purpose is to exercise fair use. Section 1201 reads, “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” Screen-capture software records the content after it has been lawfully decrypted by a computer’s optical drive that completes the DRM “handshake” between the disc and the player. What remains illegal is breaking the encryption on a DVD in order to make an exact, higher quality copy of a full-length film.
The whole issue is extremely confusing. Luckily, the Librarian of Congress is authorized to issue specific and temporary exemptions to the anti-circumvention provisions of the DMCA and does so every three years, with the latest exemptions issued in 2018, including a new exemption for software preservation. Past exemptions, renewed again in 2018, allow for ebooks to be read on screen readers, for personal data to be obtained from implanted medical devices, for cellphones to be “unlocked” in order to use them on another network, for Apple devices to be “jailbroken” and Androids to be “rooted,” for a car’s ECU to be monitored by its owner, for 3D printers to use alternative materials, for video games to be emulated so that they remain playable and for film clips to be used by libraries, educators and documentarians.
In 2018, Brigham Young University argued that the last exemption be extended to full-length films and the National Telecommunications and Information Administration agreed. The Copyright Office disagreed, and the Librarian of Congress’ final regulations allow libraries to circumvent DRM for the next three years in the following circumstances:
- To make “short portions” of video content available via online platforms after instituting copyright policies and providing information about copyright to students, faculty and staff and applying “technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform;”
- To add captions or audio description to video content for accessibility purposes when, “after a reasonable effort,” we have “determined that an accessible version cannot be obtained at a fair price or in a timely manner,” and we store them “in a manner intended to reasonably prevent unauthorized further dissemination of a work;”
- To preserve, “in a playable form,” video games “that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server” on library premises for no commercial advantage when “the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable gameplay” or the games “are no longer reasonably available in the commercial marketplace;”
- To preserve software other than video games “that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access” for use on library premises only;
- To allow 3D printers to use alternative feedstock.
What do we mean when we talk about “intellectual property?”
The concept of intellectual property has its origins in seventeenth century natural law arguments that exclusive property rights are acquired by mixing our labor with natural resources, understood at that time to be part of the commons. The philosopher, John Locke, argued that as long as we do not appropriate a wasteful amount of resources for ourselves, and as long as we leave “enough-and-as-good” for everyone else, then we have a God-given right to use whatever we find for our own ends. Though Locke never specifically mentioned intellectual property, his theory became the basis for the argument that creative works constitute a form of private property.
The poet, Edward Young, in his Conjectures on Original Composition (1759), was one of the first to directly compare original works of the mind to private property:
An Imitator shares his crown, if he has one, with the chosen object of his imitation; an Original enjoys an undivided applause. An Original may be said to be of a vegetable nature; it rises spontaneously from the vital root of genius; it grows, it is not made: Imitations are often a sort of manufacture wrought up by those mechanics, art, and labour, out of pre-existent materials not their own (9).
Thyself so reverence, as to prefer the native growth of thy own mind to the richest import from abroad; such borrowed riches make us poor. The man who thus reverences himself, will soon find the world’s reverence to follow his own. His works will stand distinguished; his the sole property of them; which property alone can confer the noble title of an author; that is, of one who (to speak accurately) thinks, and composes; while other invaders of the press, how voluminous, and learned soever, (with due respect be it spoken) only read, and write (24).
The Enlightenment philosopher, Denis Diderot, argued that intellectuals are actually more entitled to own their work than those who cultivate a field or craft something from natural resources:
What form of wealth could belong to a man, if not the work of the mind...if not his own thoughts... the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of a man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and which the individual has only appropriated though [sic] cultivating it (In Hesse, 2002).
The French revolutionary and political philosopher, the Marquis de Condorcet, had perhaps the most direct influence on American intellectual property law. It was his idea to base the concept of intellectual property on social utility, since ideas are socially constructed, rather than a gift from nature or God:
There can be no relation between the ownership of a work and that of a field which a man can cultivate, or a piece of furniture that can be used by only one person, the exclusive ownership of which is consequently based on the nature of the thing. Such a property is not derived from the natural order and defended by social force; it is a property founded by society itself. It is not a true right, but a privilege, like the exclusive enjoyment of anything that can be taken from its sole possessor without violence. Every privilege is therefore a constraint imposed on freedom, a restriction of the rights of other citizens. In this particular case, the privilege is harmful not only to the rights of others who wish to copy, but also to all who wish to have copies, for whom anything that increases the price thereof is an injustice. Does the public interest require men to make this sacrifice (Translated by Goldhammer, 2002)?
In arguing that intellectual property is “founded by society itself,” Condorcet’s argument informed the Framers of the US Constitution’s idea to grant creators a limited term of copyright protection -- not to enrich themselves -- but for the socially useful purpose of promoting “the Progress of Science and the useful Arts” (U.S. Const. art. I, § 8).
What do we mean by the “public domain?”
The term, “public domain,” sometimes called the “intellectual commons,” is used to refer to the body of published work to which no intellectual property rights apply. The concept of the public domain has its basis in ancient Roman law, which defined four realms of nonexclusive property: the res nullius, things yet to be appropriated; the res communes, things that cannot be appropriated; the res publicae, things owned in common by the public; and the res universitatus, things for which the state had authorized ownership by some corporate body (Rose, 2003).
Today, the public domain is made up of works that were never copyrighted, either because they are ineligible for copyright, like government documents, or because the copyright notice was messed up in the years before copyright was affixed automatically upon publication, like the Cary Grant film, Charade (Pierce, 2007).
The public domain also includes works for which copyright was not renewed during the years 1923-1963, when renewal was required, and you can search for a work’s renewal notice to find out if it is already in the public domain. Most public domain works were published before 1924, and thus their terms have expired, but there are many other reasons that works may be public domain.
Works can also be intentionally dedicated to the public domain, as were the basic technologies of the World Wide Web, but it is usually a better idea to preserve your copyright and publish your work under a Creative Commons license that prevents others from taking your work, repackaging it and republishing it under their own copyright.
Crews, K. D. (2011). Copyright law for librarians and educators. Chicago, IL: American Library Association.
Gillespie, T. (2007). Wired shut: Copyright and the shape of digital culture. Cambridge, MA: MIT Press.
Hirtle, P. (2009). Copyright and cultural institutions: Guidelines for digitization for U.S. libraries, archives, and museums. Ithaca, NY: Cornell University Library.
Hyde, L. (2010). Common as air: Revolution, art, and ownership. New York: Farrar, Strauss and Giroux.
Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin.
Perelman, M. (2004). Steal this idea: Intellectual property rights and the corporate confiscation of creativity. Basingstoke, UK: Palgrave MacMillan.
Vaidhyanathan, S. (2001). Copyrights and copywrongs: The rise of intellectual property and how it threatens creativity. New York: NYU Press.