7.4: Author's Rights and Licensing

Definition: Copyright  

"[T]he body of laws and regulations that govern the exclusive rights of an author or creator to make copies, license, and otherwise exploit their literary, musical, or artistic work." (dictionary.com)

Author's Rights and Copyright

Copyright is a legal protection that gives creators control over how their works are used. This can include writing, art, music, and more! From the moment that a "work" is created in a tangible form (that is written, recorded, painted, etc.), they automatically own the copyright to that work.

Copyright protects a creator's right to:

• Make copies of their work
• Sell or distribute copies
• Create new works based on the original (like a song remix)
• Perform or display their work in public

For example, if a musician writes a song, only they can legally sell that song, make new versions of it, or perform it publicly. However, they can give other people permission to do those things.

Unless they are given away for some reason, copyright usually lasts for a long time (usually the creator's life plus several decades). While copyright does a lot, there are certain uses that it does not prohibit.

Chiefly, you are generally allowed to use works for the purpose of criticism, parody, and to provide access for the visually impaired. An example of using works for parody, is Weird Al Yankovic, who has parodied many popular songs.

[Man Mixing Tracks as DJ for the Party (External Link) by @Darren2 (External Link), Licensed CC0 (External Link)]

When a work that has at least a small degree of creativity to it is created in tangible form, it automatically gains copyright protection. This work does need to be fixed into a permanent medium/form of some kind (like a digital image or written paper). Typically, in the United States, copyright protection lasts for the life of the author plus seventy years after their death. After copyright expires, the work is put in the public domain and anyone may use it however they like (U.S. Copyright Office).

Global Aspects of Copyright

Copyright laws vary between countries; however, there are international agreements that help to standardize the laws. So what does that mean for you when you share your works on the internet? Fortunately, copyright law is locally implemented by each country - meaning that you normally only have to worry about your own country's copyright laws.

Creative Commons Licensing

Origins of Creative Commons  

Creative Commons came out of legal challenges after the Sonny Bono Copyright Term Extension Act (commonly also called the Mikey Mouse Protection Act due to it occurring right before Mickey Mouse entered the public domain) extended copyright terms from the life of the author plus 50 years to the life of the author plus 75 years; or 100 years after creation for works under corporate authorship. This legal action was seen by many to be an effort made to benefit large corporations. While legal challenges by Stanfard Law Profession Lawrence Lessig and web publisher Eric Eldred failed, the two went on to create Creative Commons licensing (Creative Commons).

Creative Commons (CC) is a type of license that works within copyright law so that creators can provide more customizable access and use of their works. It is vital to providing open access to information. Many different works on the internet are able to be accessed because they use a Creative Commons or a similar type of license. For example, YouTube allows creators to apply their own default license or a Creative Commons license. Without one of those agreements, they wouldn't be able to host and share other people's videos!

Many agreements allowing others to use your content are built into the user agreements when you create an account or upload content onto a social website. Creative Commons is notable because it is widely recognized and used. It serves as a simple and reliable way to identify what uses are allowed for a given work. Using Creative Commons (external link), you can do any combination of the following:

• Allow others to share your work publicly
• Allow others to create and edit new copies of your work
• Allows others to create altogether new creations using your work
• Prohibit others from altering your work
• Prohibit others from making money on your work
• Require that others give you credit for your work
• Require that people using your work, use the same type of Creative Commons license that you did

Creative Commons includes six commonly used licenses:

• CC BY allows any use but requires that you provide attribution (usually as a citation) if creating a new version of their work.
• CC BY-SA allows any use but requires that you provide attribution AND use the CC BY-SA license if creating a new version of their work.
• CC BY-NC allows any use to create a new (derivative) work so long as it is non-commercial, meaning that you will not make a profit off of it. You must also provide attribution to the original author.
• CC BY-NC-SA has the same allowances and conditions of CC BY-NC but also requires that any derivative works use the CC BY-NC-SA license.
• CC BY-ND allows people to read and copy the work but not to create any derivatives from it. It cannot be edited or transformed.
• CC BY-NC-ND is the same as CC-BY-ND except it also prevents any use that would generate a profit for people other than the original creator.

There is also a special CC0 category, which means the creator gives up any rights to the work. This essentially puts it in the public domain. CC0 isn't technically a license, but is a way to put materials into the public domain.

[Creative Commons Licenses (External Link) by Foter.com (External Link), Licensed CC BY-SA (External Link)].

Description: This image displays Creative Commons licenses from most to least free, with CC BY being the most free and CC BY-NC-ND being the least free. It is the least free because the Non-Commercial term is limiting and the No Derivatives term is very limiting. Non-Commercial means that people cannot use the work to make a profit. No Derivatives means that people cannot edit or alter the work in any way. The image also describes the allowances for each license, already described above under the Creative Commons Licensing heading.

Video: What are Creative Commons Licenses?  

This video "What are Creative Commons Licenses" (external link) by the University of Guelph McLaughlin Library explains some of the basics of Creative Commons licenses.

Creative Commons includes the licenses most commonly used for making open educational resources (OERs). However, not every CC license includes all of the rights needed to create a truly open work. In order for a work to be open, users must be able to freely access, distribute, and edit that work. Creative Commons licenses including ND (nonderivative) or SA (share alike) license terms are not considered Open, because they greatly limit how you are allowed to edit or share the work.

What is the Public Domain?

The public domain refers to all creative works that are no longer protected by copyright or never had copyright protection. This means that anyone could use these works without needing the permission of their original creator. Works enter into the public domain in a few ways:

• The copyright has expired (In the United States, copyright typically lasts for either 95 years after publication [for works by a corporation] or 70 years after the death of the creator).
• The creator chooses to give up their copyright (which can be done using Creative Commons licensing).
• The work was never protected by copyright (This includes things like government publications).

The public domain allows for anyone to use these works and this can be great for creativity, allowing for new artists, writers, and performers to take inspiration from public works. Even some of the most well-known stories (and some that have been immensely profitable in modern times) come from public domain works. Disney, in particular, has made many movies based on works in the public domain including The Hunchback of Notre Dame, Peter Pan, Alice in Wonderland, and The Princess and the Frog.

What is Fair Use?

Fair Use is (in the United States) an exception to copyright law. It allows you to use creative works in specific ways. This is primarily meant to allow use for education, criticism, news reporting, and parody. Generally, fair use allows for the use of small portions of a work. However, there are four specific factors that determine whether or not fair use is allowed:

1. The purpose and character of use. Are you using it for a commercial/for-profit use, or a non-commercial use such as education? Education and other non-commercial uses are more likely to be allowed.
2. Nature of the original material. Is the original work published or unpublished? Is it fact or fiction? Highly creative works are less likely to be allowable for fair use.
3. The amount of the original work used. Are you only using a small part of it? The larger portion that you use, the less likely it is to be allowed.
4. Effect on the original work's value. Is your use going to have a financial impact on the work's creator? If it harms the market value of the work, your use is less likely to be allowed.

It should be noted that while parody and criticism are allowable for fair use, satire is not. Parody is a comedic commentary about a work. By its nature, it requires that you imitate the work. While satire is sometimes comedic, it is used to offer commentary or criticism about the world rather than about a specific work.

Common examples of projects where fair use is generally allowed:

• A student project
• Using short sound or video clips for teaching
• A library creating a digital copy of a work for the purpose of research
• Citing other's research in scholarly articles
• Providing access for the disabled

U.S. courts have recently placed more emphasis on the concept of transformation. Transformation refers to whether or not your use of someone's work builds on the original work in a different manner or for a different purpose. In order to rule in favor of it being fair use, the courts look to see if your use is significantly differently than the other work's original use. For example, such a transformation could include making changes to a work to use it for an entirely new purpose (such as combining clips of movies for social commentary or teaching) (Lowry).

Fair Use in Different Cultures

It is important to note that many of the laws and practices mentioned in this chapter are based on United States law. Other cultures have their own ways of viewing copyright. Goodyear (2022) suggests that the Copyright Act of 1976 is a western creation strongly influenced by the forces of racism and nationalism. In particular, Goodyear notes that until the 1960s, copyright law often failed to properly recognize and compensate Black and non-western artists and creators. They also note how U.S. Copyright Law centers the tangible form of a creation in determining copyright, a requirement that favors written over oral music; neglecting tribal music that was often not written down. Hathcock (2017) agrees that even in modern times, the continued focus of U.S. copyright on the written word excludes the "cultural production of many non-white, non-Western groups" (p. 13).

To show an example of difference in copyright, India’s copyright law includes thirty very specific exceptions. For example, it specifically allows for temporary electronic storage. They have allowances similar to fair use, but they are restricted to more specific use cases (Goodyear). As we consider our own rights to protect and share our works, it's also important to consider how our own cultural laws may limit or exclude certain types of cultural expression.

 

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Sources

• "Copyright Law." dictionary.com, https://www.dictionary.com/browse/copyright-law. Accessed 26 September, 2024.
• Creative Commons. "1.1 The Story of Creative Commons." https://certificates.creativecommons...ative-commons/. Accessed 14 October, 2024.
• Goodyear, Michael P. "Culture and Fair Use." Fordham Intellectual Property, Media and Entertainment Law Journal, vol. 32, no. 2, 2022, pp. 334-390.
• Hathcock, April. "Confining Cultural Expression: How the Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion." American University Journal of Gender, Social Policy, & the Law, vol. 25, no. 3, 2017, pp. 239-260.
• Lowry, Cheryl. "Choosing and Using Sources: A Guide to Academic Research." Libretexts.org, https://commons.libretexts.org/book/human-81142.
• U.S. Copyright Office. "What is Copyright?" Copyright.gov, https://www.copyright.gov/what-is-copyright/. Accessed 14 October, 2024.