Creative Commons: Copyright Basics

Copyright refers to exclusive rights granted by law to creators for protection of their work. The copyright restricts others from reproducing, distributing, and, in the case of certain works, publicly performing or displaying the work of the copyright holder. It also prevents others from preparing derivative works, and in the case of sound recordings, to performing the work publicly by means of a digital audio transmission.

Two primary rationales or philosophies for copyright are:

Utilitarian -- Copyright is an incentive for creative expression and encourages the creation of new works.

Author's Rights -- Copyright ensures that creators get credit for their work, and it is an acknowledgment of the deep connection authors and artists have to their creative works. 

Copyright is automatic. It begins the moment a work is "created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device," according to Copyright.gov.

However, while copyright laws are strict, owners of copyrighted work may license others to use their work under specific terms and conditions. Creative Commons is one tool designed for this purpose. Creators also may allow the work to become public domain, which lets anyone reproduce or adapt the work free of terms or conditions.

What types of work can be copyrighted?

• literary and artistic works;
• translations, adaptations, arrangements of music and alterations of literary and artistic works; and,
• collections of literary and artistic works.

Furthermore, other original works such as applied art, industrial designs, models, and computer software also may be copyrighted depending on the country.

What cannot be copyrighted?

Ideas, procedures, processes, slogans, principles, or discoveries may not be copyrighted, but may fall under other forms of protection such as trademarks and patents. Works created by U.S. government employees during the course of their job generally cannot be copyrighted. As with most things, there are some exceptions.

According to the U.S. Copyright Office:

"The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found in Circular 15a, Duration of Copyright, and Circular 1, Copyright Basics."

What is Fair Use? 

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works under certain circumstances such as for criticism, comment, news reporting, teaching, scholarship, and research. To avoid copyright infringement, it is important to evaluate your use of another person's work even if you think it falls within the fair use doctrine.

The Fair Use Checklist is a tool to help you determine whether or not you are violating copyright. The checklist is not a legal document and is not legal advice. Checklists serve two purposes.

1. They help you focus on those circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depend on the particular facts of a given situation, and changing one or more facts may alter the analysis.
2. They document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith. Keep your completed worksheet on file for future reference.

When using a fair use checklist, you are likely to check boxes that favor fair use and others that oppose fair use. You do not need to have all factors in favor of fair use for fair use to apply. A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or opposes fair use. 

When in doubt, you should consult your institution's Legal Affairs office. USG employees should consult the University System of Georgia Copyright Policy.

Kenneth D. Crews, formerly of Columbia University, and Dwayne K. Buttler of the University of Louisville are the original creators of the Fair Use Checklist, licensed by a Creative Commons Attribution License.

The public domain includes works that are not subject to copyright due to exemptions or because the copyright has expired or the creator did not maintain their copyright. It also includes works that creators have dedicated to the public domain.

Work that is in the public domain is available for anyone to do just about anything with it. There may be some limitations based on the country in which the work was created, and moral rights and other intellectual property rights also may restrict how the work may be adapted.