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Open Educational Resources

An introduction to Open Educational Resources and Copyright.

Introduction

Without some information about how copyright works, OER is even more confusing. This brief explanation of copyright law in the United States will give you the necessary background.

Copyright Basics

U.S. ConstitutionCopyright is a form of intellectual property that grants the creator of an original work the exclusive right to the use of the work. Article 1, Section 8, Clause 8 of the Constitution of the United States gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Purpose of Copyright

The U.S. Constitution's brief mention of copyright focuses on the utilitarian purpose of copyright as listed below but through history the additional purpose of an author's right to "own" and "control" their creative works. Below are the two rationales explained:

  • Utilitarian: This rationale focuses on the time and effort creators put into their works. Creators need to be compensated in some way for their time and effort and if they are not compensated they may not be able to continue with their artist works.

  • Author's Rights: This rational of copyright focuses on the right authors have to be connected and recognized for their works. In academia, this is where the idea of academic integrity and plagiarism come into play. It is the idea that creators should be recognized for their contributions but also that they may have deep connections to their work and should have the right to determine how their works can be used.

Intellectual Property

Intellectual property is different than physical property as it is a creation of the mind. Copyright is only one form of intellectual property, others include:

  • Patents: Inventors can receive a patent for their inventions. These patents last 20 years and provide inventors exclusive rights to their discoveries but in order do so the inventor must file the invention with the United States Patent and Trademark Office.
  • Trade Marks: Symbols used to represent entities can be trade marked which prevents other entities from using the same symbol and causing confusion. Trade marks last throughout the use as long as the proper maintenance documents are filed.
  • Trade Secrets: Trade secrets can be protected in the U.S. through the court system but they must meet certain criteria such as not being well known, providing economic value that cannot be obtained legitimately by other entities, and the keepers of the secret must have responsible security measures. They do not have to be disclosed, as with patents but trade secrets are not protected if others make the same discovery whereas a patent would protect against another entity discovering the same thing.

Copyrightable Works

In the United States the basic requirement for a copyrighted work is that it can be fixed in some type of tangible form. Basically, you must be able to make a copy of it. A story made up by a mother at bedtime is not copyrightable as it exists only while the story is actively being told. However, if that story is recorded or written down those copies of the story would be protected by copyright.

Facts and discoveries, on the other hand, cannot be copyrighted. Isaac Newton is credited with the discovery of gravity but prior to his discovery, gravity existed, only it did not have a name. Nonfiction works, such as textbooks can be confusing as they focus on facts, which are not copyrightable but the expression of those facts and the organization of the information is covered by copyright.

Copyrightable vs. Noncopyrightable Works

Copyrightable Can Not Be Copyrighted
Literary Works Ideas
Dramatic works, with music Concepts
Pantomimes, choreography Systems
Musical works, with words Facts
Motion pictures and other AV works Discoveries
Sound Recordings Processes
Pictorial, graphic, sculptural works Procedures

Copyright Owners Exclusive Rightscopyright picture

  • Reproduction of the work
  • Distribution of the work
  • Deriving new works
  • Performing the work publicly
  • Displaying the work publicly

Obtaining Copyright

Once a work is put in a tangible form, it is automatically protected by copyright and there is no need to register the work. However, if a creator needs to enforce their rights, they must first register their work. This can be done through the United States Copyright Office.

"Copyright Laws" by Nick Youngson is licensed under CC BY-SA 3.0 Alpha Stock Images

Copyright Length

The first copyright laws in the U.S. protected works for 14 years with an option to renew the copyright for an additional 14 years. This has steady increased to our current copyright which lasts the life of the author plus 70 years and in the case of corporate authorship, 95 years after publication or 120 years after creation, whichever expires first.

public domainPublic Domain

The public domain consists of works that are not protected by copyright and anyone is allowed to use the work without permission. Works are included in the public domain for the following reasons:

  • Expired Copyright: While copyright may seem to last forever, it does eventually expire and those works then enter the public domain. The musician Prince died in 2016, his compositions will enter the public domain in 2086.
  • Not Eligible for Copyright: In the U.S. works created by the federal government are not eligible for copyright protection along with highly factual works like an alphabetical list of names and numbers like you would find in a telephone book.
  • Creator Dedicates the Work: Creators themselves can dedicate their work to the public domain and give up their copyright.
  • Creator Fails to Maintain Copyright: In the U.S. this is not as much of an issue as the law no longer requires author's to register their work or include a notice of copyright but prior to 1976 this could be problematic. The movie Night of the Living Dead famously entered the public domain when the distributor failed to include a copyright notice on the prints.

"Public Domain logo" by annarres is licensed by CC0

Exceptions

Some exceptions or limitations of exclusive rights are made for the educational use of copyrighted material but they run from very specific with clear guidelines on what is considered an educational exception (such as the TEACH Act) to Fair Use which is a legal defense that can be used when someone is being sued for copyright infringement. 

U.S. Copyright Law Sections on Limitations of Exclusive Rights

  • 107: Fair Use
    • Fair use allows for the use of a work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. It is a legal defense that a user can claim if sued for copyright infringement. Courts determine whether or not the use is fair by looking at the following:
      • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      • the nature of the copyrighted work;
      • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      • the effect of the use upon the potential market for or value of the copyrighted work
    • The key factor for a fair use claim has been the transformative nature of the use. It must use the work in a way not intended by the original author.
  • 108: Reproduction by Libraries and Archives
    • This allows libraries and archives to provide Inter-Library Loan Services and well as to make a copy of works for archival purposes.
  • 109: First Sale Doctrine
    • Once you purchase a copy of a work, you have freedom to do what you would like with that particular copy. However, this has been limited by laws preventing sound recording and computer software rental. It has been further eroded as electronic copyrighted materials are made available through licensing agreements instead of traditional sales.
  • 110: Limitations on Exclusive Rights: Exemption of Certain Performances and Displays
    • This limitation focuses on the the public performance or display of a work mainly in regards to education. This would include showing a movie related to course content within the classroom setting.

For more information on copyright visit the United States Copyright Office.

"Copyright Information" is a derivative of the September 2020 Creative Commons Certificate Course by Creative Commons, licensed CC BY 4.0. Kelly Kornkven adapted content from the Creative Commons Certificate Course Unit 2 on the Copyright Law, by summarizing main points, adding additional CC licensed graphics and additional information on copyright limitations regarding U.S. Copyright Law.