Copyright: you know what it means in principle, but when it comes to practice, you have questions. How do you know if a work is in the public domain? What constitutes fair use of copyrighted material? And how do copyright law and fair use doctrine intersect with the subscription-based content on which your organization depends?
What is copyright?
Copyright is the exclusive legal right to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. Copyright is typically given to a work’s creator or assigned by the creator to another party, as in the case of works for hire.
Copyright is automatic. Though rights holders may choose whether or not to register a copyright, they are still able to assert their legal rights to a given work without registration. You should not assume that a freely available work — for example, a document or image found via a Google search — is free from copyright protection. Unless the work is quite old, it is still likely to be protected.
How old is old?
How old is old enough? Printed works published in the United States as of December 31, 1922 are considered to be within the public domain, meaning they may be copied and distributed without restriction provided they give attribution to the original creator. On January 1, 2019, the public domain will be expanded to include works published as of December 31, 1923 as well.
Printed works published after these dates fall under copyright protection in the United States. Rules governing exact copyright provisions vary significantly depending on the type of work, the nature of its authorship, and the date of publication. Utilities like Copyright Genie or the Cornell Copyright Information Center can provide guidance on whether an item is likely to be in the public domain.
Copyright clearance can be an especially messy business for works published outside the U.S., unpublished works, sound recordings, and those items for which a copyright holder cannot be readily identified. There are professionals who specialize in this work, most notably the Copyright Clearance Center.
How about government works?
It’s worth mentioning that works published or commissioned by federal, state and local governments in the U.S. are considered public domain regardless of the year of publication.
Fair use isn’t fairly clear
For works which fall under copyright in the United States, the doctrine of fair use must be applied. Determining what constitutes fair use requires taking a number of dimensions into consideration, namely:
- the purpose of the use
- the nature of the copyrighted material
- the amount copied
- the effect on the market for the original work
Hard-and-fast rules for fair use do not exist. Consequently, here’s an area of risk for you and your organization: Fair use depends heavily on both the work and the circumstances for its reuse. Determinations of fair use may also be subject to challenges by rights holders. The Cornell Copyright Information Center has a helpful fair use checklist to support this process.
In recent years, some alternatives to established copyright law have emerged in response to blanket restrictions on what constitutes fair use. Organizations like Creative Commons allow rights holders to assert flexible, customizable terms to protect their interests but still afford ease of reuse. However, these licenses are principally applied to freely available content which appears on the web.
Copyright, licensed content, and your organization
Content licensing agreements enable users to remain within terms established by vendors in concert with copyright holders. If your organization holds subscriptions such as these, care should be taken to avoid violating the license agreement with a vendor, since a violation may potentially infringe on the rights of a copyright holder as well.
Broadly speaking, wholesale copying of works is not regarded as fair use, even with distribution limited to internal audiences. This encompasses downloading and circulation of material via email, file shares, and collaboration platforms. It may seem cost-effective to offer licensed content by these means for internal users who are not license seat holders. However, this risks incurring vendor penalties as well as litigation costs which significantly exceed the costs of additional seats.
Your cSubs account manager can work with you to better understand terms and conditions which apply to usage of licensed content, as well as how to measure your subscription utilization and identify opportunities for cost savings.