A Little History of Copyright

The first copyright law we know of was the Statute of Anne, enacted in Great Britain in 1710. The purpose of the statute was right in the long title: "An act for the Encouragement of Learning...." You can check out the full text on Yale Law School's Avalon Project website.

When the United States Constitution was written, the authors—obviously familiar with the Great Britain system of copyright—chose to include the following when enumerating the powers of Congress:

"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;" (U.S. Constitution, Article 1, Section 8)

This is the basis for our copyright law today, which lives in Title 17 of the U.S. Code.

What Kinds of Things Are Protected Under Copyright?

In the United States, a work must be “fixed” in a tangible medium to breathe alive its copyright. While one can register a copyright to facilitate greater ability to seek damages for infringement, it is not necessary. Copyright is born with a work’s tangible manifestation automatically. This can take the form of:

• 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; and
• architectural works.

What Kinds of Things Are Not Protected Under Copyright?

Copyright does not protect facts, data, or ideas floating about in your head. Additionally, works of the U.S. federal government are generally not protected by copyright in the United States and are automatically in the public domain (17USC§ 105); however, there are numerous exceptions and refinements to this rule.

What Exactly Does Copyright Protect?

Copyright owners maintain the exclusive right to do the following:

• Reproduce the work.  (Make copies. This one has become a huge headache in the digital world...see What is Creative Commons?) 
• Make derivative works. (Build upon the work to create new works...for example, a remix or a mashup.)
• Distribute copies to the public by sale or "other transfer of ownership, or by rental, lease, or lending."  (No one can sell your work...without your permission.)
• Perform the work publicly.  (This includes readings of literary works - only the copyright holder has this right.)
• Display the work publicly.  
• Transmit digitally (in the case of audio transmission of sound recordings)

These rights are exclusive to the copyright holder; no one else has these rights for someone else's content, unless the copyright holder gives them the right. Copyright lasts 70 years after the death of the copyright holder (all the many details and particularities about copyright term lengths can be found on Cornell University's Copyright Services: Copyright Term and the Public Domain LibGuide.

Or go straight to the source and read Copyright Law of the United States (Title 17).

What About Fair Use?

Fair use is a legal exemption to the exclusive rights of copyright holders. It is determined on a case-by-case basis and is based on a consideration of the following four factors:

• The purpose and character of the use (including whether it is transformative, commercial, non-profit, or educational)
• The nature of the copyrighted work
• The amount and substantiality of the portion to be used
• The effect upon the potential market for the copyrighted work

Because intention is a part of the consideration, only the user can make the initial assessment of whether their use is fair. For educational purposes the purpose and substantiality of the portion used consider close reflection. 

Using a code of best practices is the best way to determine if your use constitutes fair use. The Center for Media and Social Impact has a library of best practices for fair use best practices that are subject and discipline specific; The Code of Best Practices in Fair Use for Academic and Research Libraries is one that faculty should be consult.

There is a lot of subtlety in Fair Use interpretations, for more information see the Copyright Office’s Information on Fair Use, and Case Index. 

Where Does Public Domain Fit into All This?

In short, public domain does not fit into copyright—public domain is its own kingdom and is not subject to copyright. Once something falls into the public domain it stays there. When copyright expires, (or was moved into the public domain by the owner, see below; or in cases where it never existed because it doesn't apply, see Fair Use, most government documents, facts, etc.; or was forfeited by failure to comply with formalities that may have preexisted current law) a work will move into the public domain making creative and intellectual works available for use. Different countries have different copyright laws which affects when things become a part of the public domain, but in the United States it is generally extended to 70 years after the life the creator. Yes, that's a long time to wait for the public good that public domain makes possible. 

If you are using public domain materials you don't legally have to do anything, however, the clever folks at Creative Commons did make a public domain badge that you can use so that your readers know the status. It's a nice thing to do. And attribute when possible—there's no excuse for rudeness. Click badge for complete details.

But why wait 70 years? What if you want to put your work into the public domain now—just say to the world Have at it! Make cool stuff! Don't even worry about the details of who, what, where, or how—be free my friends! Well, the Creative Commons team thought of that too. They created a mechanism to dedicate your work to the public domain, copyright be damned. It's the CC Zero. But remember, attribution is always the polite thing to do. Click on badge for complete details.

Use of the CC Zero is restricted to the copyright holder, but if that's you, then go right ahead and share your stuff with no strings attached! 

* Parts of the copyright section of this guide were adapted for use from the excellent Kenyon College Copyright Resources: The Basics licensed under CC BY NC

There are 4 Creative Commons Elements to make 6 Licenses:

The Four:

CC BY	CC SA	CC NC	CC ND

Plus Two Combos:

CC NC-SA	CC NC-ND

CC BY: Attribution—Credit the creator, it's just good manners! Additionally, if it is a Creative Commons license, the BY element is mandatory and always attached to every other license. Even if you don't see the BY—it's there

CC SA: Share Alike—Use the same license, please

CC NC: Non-Commercial—Do not sell it, thanks.

CC ND: No Derivatives—Do not change or alter, got it?

CC NC-SA: Don't use commercially and use the same license.

CC NC-ND: Don't you dare use commercially and while we're at it, don't change it any way either.

Click on badges for complete details on each license:

To find out more about how to use the licenses on your own work, see the Citations Tools and Guides tab in the Create OER section of the Open Educational Resources guide.

A Little History of Creative Commons

The Library Copyright Alliance holds that US copyright law is "fully capable" of dealing with questions surrounding AI-generated outputs. From Katherine Klosek'S July, 2024 post US Copyright Act Can Address AI without Amendment:

"For instance, in March of this year the US Copyright Office issued registration guidance reiterating the long-standing requirement that a work be authored by a human in order to receive copyright protection. In a recent webinar, the Copyright Office clarified that registrants should disclose AI-generated elements of a work using the same process as other unclaimable elements (like works in the public domain or previously registered works). Applicants, however, are not required to disclose when works contain a de minimis amount of AI-contributed authorship–for example, when AI is used for editing or blurring an original work. To test whether AI contribution to a work is de minimis, the office encouraged potential applicants to consider whether that element of the work would be eligible for registration if it was produced by a human author."

"On the input side, ingesting copyrighted works to create large language models or other AI training databases is an established fair use, in line with the precedent established in Authors Guild v. HathiTrust and upheld in Authors Guild v. Google. In those cases, the US Court of Appeals for the Second Circuit held that ingesting vast quantities of works for the purpose of making non-expressive uses of those works, such as text and data mining, was a fair use. Of course, copying and displaying unprotected elements of works, such as facts, is not infringement, per Feist Publications v. Rural Telephone Service Company."

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