Smith College: Copyright Policy
Smith College: Copyright & the Classroom
University of Minnesota Libraries: Can I Use That? Fair Use in Everyday Life [pdf]
The Center for Media and Social Impact: The Code of Best Practices in Fair Use for Academic and Research Libraries
This guide is for information purposed only. Please consult a copyright lawyer if you need more than general information on the subject of copyright and licensing.
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.
In the United States, a work must be “fixed” in a tangible medium to breathe alive its copyright. While one can, and should, register a copyright in order 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:
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). There are numerous exceptions and refinements to government works, as well as sundry exceptions for, among other things: libraries, archives, research and fair uses.
Copyright owners maintain the exclusive right to do the following:
These rights are exclusive to the copyright holder unless and until the copyright holder gives up their 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).
CC BY: 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. Use TASL to attribute: Title, Author, Source, License.
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.
Fair use is a legal exemption to the exclusive rights of copyright holders. It is determined on a case-by-case basis consideration of the following four factors:
In most academic uses, two questions are most relevant for a fair use analysis:
If you can answer a clear ‘yes’ to both questions, you have a strong fair use case (in general).
Because intention is a part of the consideration, only the user can make the initial assessment of whether their use is fair.
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 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.
Documenting your rational is important and will enhance your fair use through a good-faith, reasonable effort. Use The Fair Use Evaluator which will provide you with a time-stamped, PDF document for your records.
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.
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 and MIT's Using Copyrighted Content licensed under CC BY NC
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 [pdf] 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."
Read more:
Terms to know:
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), which amended U.S. copyright law to address important parts of the relationship between copyright and the internet. One of the implications is from section 103 which "Prohibits: (1) circumvention of technological measures that control access to protected works; or (2) manufacturing or trafficking in technology designed to circumvent measures that control access to, or protect rights of copyright owners in, such works."
However, there were important exemption: "Provides exemptions to such prohibition for: (1) nonprofit libraries, archives, or educational institutions which gain access to a commercially exploited copyrighted work solely to make a good faith determination of whether to acquire such work, subject to certain conditions;"
Every three years there is a review of the rules which is a time to renew or even expand exemptions. Without going into the weeds we are now many three-year cycles in but it is important to understand what you can and cannot do in our academic setting.
Most recently, in the fall of 2024 the Librarian of Congress, made recent exemptions outlined here succinctly by The Authors Alliance:
"the 2024 exemptions (1) expand researchers’ access to existing corpora, (2) definitively allow the viewing and annotation of copyrighted materials for TDM research purposes, and (3) create new obligations for researchers to disclose security protocols to trade associations. Beyond these key changes, the TDM exemptions remain largely the same: researchers affiliated with universities are allowed to circumvent TPMs to compile corpora for TDM research, provided that those copies of copyrighted materials are legally obtained and adequate security protocols are put in place."
In 2020, Congress passed a law called the “Copyright Alternative in Small-Claims Enforcement Act of 2020,” known as the “CASE Act.” The CASE Act mandated the formation of the Copyright Claims Board (“CCB”), a tribunal operating through the U.S. Copyright Office instead of the federal judicial branch, for the purpose of deciding “small claims” copyright infringement actions via a quicker, less expensive process—that is, without all of the procedural requirements of a normal federal court case. Damages are capped at $30,000 for CCB cases.
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