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Copyright, Creative Commons, and OER: Copyright & Fair Use

Copyright Basics

What is the purpose of copyright?

  • Utilitarian: Serves the greater good by giving creators exclusive rights, i.e. incentive
  • Author’s Rights: Protects the deep connection creators have with their works and gives them control

Do you need to register copyright?

No. Copyright does not need to be registered in the U.S. It is automatic as soon as a work is fixed in a medium (written, recorded, etc.).

What can be copyrighted?

Any creative works, such as books, poetry, music, art, movies, and plays. Translations and adaptations, as well and databases and software are also granted copyright protections.

Infographic of the types of materials that can be copyrighted
What Can Be Copyrighted Infographic by Maggie Swanger is licensed under CC BY 4.0.

How long does it last?

The U.S. copyright term lasts for the life of the author plus 70 years.

What are some other intellectual property protections?

  • Trademarks protect logos, brands & brand names, symbols, sounds
  • Patents protect inventions

Exceptions & Limitations of Copyright

You can use copyrighted materials without asking permission under certain conditions:

  • Criticism & Parody
  • Allowing for Accessibility (see the following TEACH Act section)
  • Fair Use (see the following section for more detail)

Public Domain

If something is in the public domain, you are allowed to freely use it in its entirety without obtaining permission. Works enter public domain when the copyright term has expired, or if the creator has relinquished their copyright and dedicated their work to free public use. This is the case with some government documents. It is also important to note that ideas and facts cannot be copyrighted, only creative works.

Infographic of material types in the public domain
Public Domain Infographic by Maggie Swanger is licensed under CC BY 4.0.

4 Factors of Fair Use

The U.S. Code does not explicitly delineate number of words, lines, notes or images that would constitute fair use or not. Consider the following four factors. If more are in favor of fair use, you can use the material in your class. If most factors fall under "less likely to be fair use" you will want to find an alternative, or reduce the amount you share.

1. The purpose and character of the use:

  • Nonprofit/educational purposes = fair use

2. The nature of the copyrighted work:

  • Unpublished works = less likely to be considered fair use
  • Out of print materials = more likely to be fair use
  • Work tends toward artistic expression = less likely to be fair use

3. The amount and substantiality of the portion used:

  • If you use 50% of the entire work = less likely to be fair use
  • If you use the "heart" or "essence" of a work = less likely to be fair use

4. The effect of use on the potential market for the copyrighted work:

  • The work has been significantly altered from the original = more likely to be fair use
  • Who is the audience? Same audience = less likely to be fair use

Ask permission if your use falls outside of fair use

TEACH Act

The TEACH Act addresses digital uses of material for online learning. It provides for the performance and display of copyrighted materials for distance education by accredited, non-profit educational institutions (and some government entities) that meet the Act's requirements.

TEACH requires that the academic institution meet specific requirements for copyright compliance. For the full list of requirements, refer to the United States Code, Title 17, Section 110.

  • The institution must be an accredited, non-profit educational institution.
  • The use must be part of mediated instructional activities.
  • The use must be limited to a specific number of students enrolled in a specific class.
  • The use must either be for 'live' or asynchronous class sessions.
  • The use must not include the transmission of textbook materials, materials "typically purchased or acquired by students," or works developed specifically for online uses.
  • Only "reasonable and limited portions," such as might be performed or displayed during a typical live classroom session, may be used.
  • The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.
  • The institution must implement some technological measures to ensure compliance with these policies, beyond merely assigning a password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut & paste disabling, etc.

It is also important to note that TEACH does not supersede fair use or existing digital license agreements.