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FAQ Copyright Permissions and Guidelines for Fair Use

September 2015

The following is an introduction to copyright law in the US and beyond, including issues of fair use and digital domains. Much of what follows reiterates publications, both online and in print.  These have been noted in urls and many are also available in the affiliated Zotero libraries. The information is focused predominantly on US copyright, but other national information has been included. Since global copyright laws and regulations are dynamic, these pages will be updated periodically according to changing guidelines and information. Group members are encouraged to update and correct the information here.

More information on copyright permissions, fair use, and creative commons licenses is available from these sites:

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Information on traditional copyright:

1.     What is a Copyright?

A copyright is defined by the United States Copyright Office as “a form of protection provided by the laws… to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.”

2.     What can and cannot be copyrighted?

A copyright can be applied to any original work of artistic expression; this can include, but is not limited to:

  • Literary works (original works, newspaper articles, scholarly publications)
  • Recorded events (television, cinema)
  • Visual arts (paintings, graphic designs, set and lighting designs)
  • Musical compositions
  • Dramatic works and productions
  • Choreographic works
  • Computer programs, and any creative works produced using a computer

It should be noted that United States law is very specific in that ideas cannot be copyrighted; only the expression of an idea is.   Thus, a journal article may be copyrighted as an expression of a theory, but the theory itself cannot be copyrighted. 

3.     How does a property get copyrighted?

The United States acknowledges an “automatic copyright” on any original work.  This means that as soon as any creative work is expressed via written, visual, performative, or digital methods, the creator of the work is acknowledged as the copyright holder of that work.  Official registration with the U.S. Copyright Office is not required.  However, by registering a copyright, an artist can use that as documented evidence of the time and origin of an intellectual property, and can be used to defend against alternate claims of ownership.  This is most useful in works that are not innately documented, such as performances and choreography of dance.

4.     What rights does a copyright holder possess?

Among the rights that are attributed to a copyright is the authority to:

  • reproduce the work;
  • create derivative works based off of the original property;
  • in the case of literary, theatrical, musical, and choreographic properties, to perform them in private or in public when applicable;
  • manage the distribution and performance of the property via sales, lease, or lending;
  • receive accreditation of creation in reproductions of the work, as well as financial compensation for use of the work.

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Exceptions to copyright law

Public Domain: works in the Public Domain are those that are no longer or never were subject to copyright protection; as such, anyone can create further intellectual properties based on those works.  In the United States, this list includes:

  • any registered or published work before 1923;
  • any work published without a proper copyright notice between 1923 and 1977;
  • any copyrighted work whose original author has died more than 70 years ago.

Additional information is available at: https://copyright.cornell.edu/resources/publicdomain.cfm

Fair Use: Section 107 of the United States copyright code allows for limited exceptions to copyright protection in unaffiliated works, referred to as “fair use.”  When considering if use of copyrighted materials is fair use, the court looks at four primary factors:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. the effect of the use upon the potential market for, or value of, the copyrighted work.

This may apply to “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Additional information: http://www.copyright.gov/fls/fl102.html

Educational purposes: The law recognizes an exception to copyright protection on works used in an educational environment.  As such, an educator is not always required to acquire permission from the estate of the copyright holder to use in the classroom.  Note that this only applies to reproductions used for educational purposes, and not for profit; unlawful misattribution of the selected work may still result in legal action.

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Online and Digital materials

The Berne Convention and the TRIPS agreement both outline that any original works created or published online are offered the same rights as more traditionally-published works; in other words, anything you write, compose, direct, or create online is protected so long as it does not conflict with a previously-copyrighted work (Derivative works.) 

Databases: Under the Berne Convention, the WTO/TRIPs Agreement and under the WCT, databases which constitute creative compilations enjoy protection under copyright as literary works.  This protection does not extend to databases provided by bodies of government under an official capacity. 

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Specific copyright differences by nations

United States: The United States is not a signatory of the Rome Convention, and does not acknowledge Neighboring Rights of copyright protection.

Additional information:

  • United States Copyright Office: http://copyright.gov/
  • Circulars and brochures provided by the USCO: http://copyright.gov/circs/

Australia: Australia is a signatory of the Rome Convention, and thus recognizes Neighboring Rights.

No specific law regarding databases exist; Protection is only applied if it falls under the general copyright protections listed above.

Additional information: 

China: Signatory of the Berne Convention and the TRIPS Agreement. China is not a signatory of the Rome Convention, and thus does not recognize Neighboring Rights.

As a signatory of the Berne Convention and the TRIPS Agreement, China recognizes the automatic copyright of any original work.  However, if a work is outsourced to a third party, then that third party is recognized as the creator.  If you hire someone to create a work for you, that person owns the copyright in the completed work unless you have a contract that states otherwise. If you pay your joint venture entity to create software for you and you do not have a contract (preferably in Chinese) with the joint venture entity making clear that you and not the joint venture entity own the copyrights in that software, the joint venture entity will own the copyrights, not you.

Additional information:

English translation of Chinese copyright law - https://chinacopyrightandmedia.wordpress.com/2014/06/06/copyright-law-of-the-peoples-republic-of-china-revision-draft-submission-version/

European Union: All nations of the EU have signed the Rome Convention, and thus acknowledge Neighboring Rights.

The Database Directive of 1996 awards the same rights to databases originating in EU member nations as the U.S.  It also provides an additional right of “sui generis” (“of its own kind”) that prohibits the extraction or reutilization of any database in which there has been a substantial investment in either obtaining, verification, or presentation of the data contents. Under this second right, there is no requirement for creativity or originality. The sui generis right lasts for fifteen years from the date of the database's creation.

Additional information:

India: Signatories of the Berne Convention and TRIPS agreement. India is not a signatory of the Rome Convention.

Additional information:

Japan: Signatory of the Berne Convention and the TRIPS Agreement. Japan is also a signatory of the Rome Convention, and thus acknowledges Neighboring Rights.

Additional information:


Nations that are not members or signatories of any international copyright agreements:

Please note that several of these nations are observers of certain agreements, but are not currently official members.  Authors are advised to consult each nation on an individual basis for any agreements that may be made among nations.

Afghanistan (TRIPS observer)

Eritrea

Ethiopia (TRIPS observer)

Iraq(TRIPS observer)

Iran(TRIPS observer)

Kiribati

Nauru

Niue (Status unclear)

Palau

San marino

São Tomé and Príncipe (TRIPS observer)

Seychelles (TRIPS observer)

Somalia

Turkmenistan Tuvalu (Status unclear)

For further information on each nation’s laws regarding copyright, authors are advised to consult the United Nations Educational, Scientific and Cultural organization’s Collection of Nations’ Copyright Laws: http://portal.unesco.org/culture/en/ev.php-URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html

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This information was created by Gustave Rogers at the University at Buffalo and supported by a grant from an anonymous donor to ASTR in support of digital resources for ASTR members.


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