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Media, Popular Culture, and Communication Rights Research Guide: Copyright & Fair Use

Research strategies and resources on media, popular culture, journalism, copyright, digital society, and related topics.

Copyright and Fair Use

What's Here

Copyright and fair use are confusing subjects. The issues can be obscure, vague or puzzling. Many people think that if something is available on the Internet, not used in order to make money, or out of print, then it's OK to use it any way they want to. On the other hand, sometimes people think that they can't use copyrighted work at all without permission. Neither view is correct. However, an increasing number of people want to provide others with the right to use their own work without charge or requiring permission. This page offers a number of resources and explanations to help you understand what copyright and fair use are all about and when it's OK to use material.

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Selected Subject Headings for Searching Orbis

NOTE: Many resources on copyright and fair use will be found at the Law Library. Be sure to check Morris (the Law Library catalog).

Top Resources on Copyright and Fair Use

Code of Best Practices in Fair Use for Academic and Research Libraries

Code of Best Practices in Fair Use for OpenCourseWare

Code of Best Practices in Fair Use for Online Video

What are the accepted standards for fair use -- are there any? What's acceptable support for teaching? To help people answer such questions, the Center for Social Media has worked with various groups to develop codes of "best practices" in fair use. The code for libraries actually has very broad value, and the website linked above presents the information very clearly, with FAQs for students, faculty and librarians, videos, and other explanations.

The Center for Social Media has also worked with other groups to develop codes of best practices in fair use for documentary filmmaking, media literacy education, and other areas.

Cornell Copyright Information Center

One of the best resources for understanding copyright and fair use in an academic setting. Especially useful are the special sections for faculty & staff and for students.  There are also checklists, decision trees, documents on copyright duration and public domain, and more.

Reclaiming fair use: how to put balance back in copyright. Patricia Aufderheide and Peter Jaszi. Chicago: University of Chicago Press, 2011.

Law Library KF3020 .A944X 2011

Stanford Copyright & Fair Use Center

An excellent and very thorough source of information and explanations about copyright and fair use. See especially its Copyright Overview, drawn from NOLO, a top resource for legal information in plain English (written by lawyers!).  The Stanford site includes discussions about getting permissions, information on actual legal cases, and various charts and other tools.

U.S. Copyright Office

Information on copyright basics, registration, fees, forms, law, and much else.

Some Brief Explanations of Terms and Concepts

  • Copyright: Copyright law is a "limited monopoly" meant to encourage creativity and the production of knowledge. It gives a copyright owner the right to publish or perform an intellectual or cultural creation, and receive money for it. It has important limitations, including its duration (although under US current law, the duration can be well over a century). Every intellectual and cultural creation is protected as soon as it is produced. Some things can not be put under copyright, such as facts, ideas, and languages: only actual expressions or presentations -- words, images, etc -- can be copyrighted.

  • Fair Use: Fair use is a vital part of copyright law. It allows for circumstances in which people may use or reproduce material without asking permission or paying a fee. The Supreme Court has observed that without the right to fair use, copyright would unconstitutionally restrict freedom of speech; scholarship would grind to a halt without it. There are no sharp rules or even rules of thumb for fair use: the concept is intentionally flexible. Fair use involves four major factors: 1) the purpose and manner of use; 2) the nature of the work used; 3) the amount used; and 4) the effect on the original work's market. Many people consider the first factor -- called transformative uses -- the most important. The amount used needs to be appropriate for that purpose (which sometimes means the entire work). "Transformative" is a broad term that can include the type of audience, the context, and the reasons for using the material. Educational or scholarly use is often but not always fair use: all four factors still apply. See the resources above for more information.

  • Public Domain: Once the copyright to a work has expired (or if it never applied), the work becomes part of the public domain, meaning anyone can use it in any manner without permission or charge. Facts and ideas are always in the public domain. Being out of print does NOT place a book (movie, song, etc.) in the public domain: the legal copyright has to expire. However, there are oddities: for example, Shakespeare's works are in the public domain, but a modern edition of his works falls under copyright. (Basically, editorial work counts as a transformative use, which results in a new work that is protected by copyright.)

  • Copyleft: An increasing number of people want their work to be freely available to the public, with or without restrictions, even though copyright law applies to their work. "Copyleft" (a play on the word "copyright") is a way to achieve this. It grants everyone a license to use and share a work without requiring permission or payment (examples below). Usually the license requires attribution; sometimes it prohibits derivative works and/or commercial usages (unless granted further permission); and sometimes it requires derivative works to be shared under the same terms as the original. Copyleft is the main way people provide open access to their work. Some people go further, directly placing their work in the public domain. Works shared under a copyleft license or in the public domain, including facts and ideas, form the intellectual commons.

  • Free Culture Movement: The idea here is "free as in unrestricted," not "free as in zero price" -- or as Richard Stallman put it, free as in "free speech," not "free beer." There is vigorous debate over free culture: its advocates argue that copyright (especially its lengthened duration and draconian protection) is strangling cultural expression and development; its opponents, often citing declining profits in the mainstream music industry, believe that it impedes economic growth or reduces artists' income. There is a difference between the free culture movement and the copyleft movement, since certain copyleft licenses do not allow total freedom of use.

  • Attribution: Students are sometimes surprised to learn that for their professors, showing good use of others' work is a much better indicator of intelligence and originality than creating the appearance that all of the ideas and information came from the student. Attribution is related to but distinct from copyright and fair use. Copyright and fair use are legal matters, but attribution is an ethical issue concerning intellectual honesty and respect. One should give other people credit for what they've done. (Or as I learned in college, always cite your source of misinformation.) Most copyleft licenses require attribution; even if they don't, it's good practice to include it. Attribution also indicates that you're striving to engage in fair use of copyrighted material -- although it isn't proof that your use is fair. Again, consider all four factors of fair use.

    Be aware that, depending on the circumstances and severity of the case, failure to attribute sources (or to quote or paraphrase properly) sometimes constitutes plagiarism, which is a serious violation of university standards. (Using other people's papers is a hands-down offense.) So whenever possible, attribute your sources of information, quotations, images, videos, and sound clips. That goes for works in the public domain or under copyleft, as well as fair use. Remember, attributing work is not the same thing as exercising fair use. See the Writing Center's discussion on when to cite sources.


Selected Additional Copyright Resources

American Library Association Copyright Information

BUBL: Copyright Links

A portal with links to various websites on copyright, fair use, etc.

The copyright book: a practical guide. William S. Strong. 5th ed. Cambridge, Mass.: MIT Press, 1999.

SML, Reference KF2994 S75X 1999

Copyright Clearance Center

The CCC provides an online system for obtaining the right to re-print materials, such as articles for use in a coursepack.

Copyright Watch

Copyright Watch collects and monitors copyright laws from all over the world.  It aims to be "a user-friendly resource of national copyright laws to help citizens of the world undertake comparative research."

Copyright Website

A portal providing real world, practical and relevant copyright information for anyone navigating the net.

Selected Fair Use, Copyleft, and Intellectual Commons Resources

"The Cathedral and the Bazaar" by Eric S. Raymond

The seminal 1998 article on open source software, in the version published by First Monday (one of the most important e-journals about digital society).

"Commodification of Culture Harms Creators" by Howard Besser

Article prepared for the American Library Association (October 2001)

Creative Commons

Creative Commons is an organization that aims to increase the sum of raw source material online, make access to that material cheaper and easier, and build an "intellectual property conservancy." It provides various standardized copyleft licenses, now used around the world.

Fair Use Network

This resource provides information to activists, artists, scholars, and anyone else who has questions about "IP" (intellectual property) law. Its basic purpose is to support fair use and other free expression safeguards within the law.

Free Art License (License Art Libre)

The Free Art License grants the right to freely copy, distribute, and transform creative works without infringing the author's rights.

Free Software Licenses

Programmers developing free, open source software have been at the forefront of copyleft license creation, allowing others to copy, modify and redistribute software code. There is a wide variety of software licenses; the most popular are the GNU and the BSD licenses.

Center for the Study of the Public Domain

Based at the Duke University Law School, the CSPD's mission is "to promote research and scholarship on the contributions of the public domain to speech, culture, science and innovation, to promote debate about the balance needed in our intellectual property system and to translate academic research into public policy solutions."

Public Knowledge

A public-interest advocacy organization dedicated to fortifying and defending a vibrant information commons.

QuestionCopyright.org

The mission of QuestionCopyright.org is "to provide advocacy and practical education to help cultural producers embrace open distribution."

"The 'Fair Use' Rule: When Use of Copyrighted Material is Acceptable"

Practical examples of uses that generally meet "fair use" guidelines, and uses that don't. From Nolo: Law for All.

Some Free Books on Free Culture

Free as in Freedom: Richard Stallman's Crusade for Free Software. By Sam Williams. Sebastopol, Calif.: O'Reilly, 2002.

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. By Lawrence Lessig. New York: Penguin Press, 2004.

The Power of Open. [Collects stories of people using Creative Commons licenses.]

The Public Domain: Enclosing the Commons of the Mind. By James Boyle. New Haven: Yale University Press, 2008. [The link downloads the PDF; you can also read it online here.]

Viral Spiral: How the Commoners Built a Digital Republic of Their Own. By David Bollier. New York: The New Press, 2009.

Librarian for Literature in English, Comparative Literature, and Linguistics

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Todd Gilman
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