Creative Commons

Copyright is the area of law that governs how original works of creators can be used by others. It is a type of intellectual property law, as are trademark law and patent law.*

*Note: Although certain cases may involve multiple types of intellectual property law, each area of law is distinct in what it governs. Copyright law does not impact trademark or patent law and vice versa.

Almost any form of creative expression containing a level of originality is copyrightable.

Copyright is an international legal concept, but although there are treaties that harmonize the way copyright operates around the world, each country's laws differ slightly. Therefore, the copyright law of the country in which a creator is distributing their work applies to that work.

Most countries agree on these basic copyright principles:

• Copyright grants a set of exclusive rights to creators, which requires their permission before copying, distributing, performing, adapting, selling, etc. the copyrighted work.
• Copyright applies to an original work. A work must meet a standard or test of originality to earn copyright, although even a small amount of originality can warrant copyright.
• Copyright does not protect ideas or facts themselves, but only the creative expression of those ideas or facts.
• Copyright is automatically applied to an original work the moment it is created.
  • In the United States, a work must also be fixed in a tangible medium before it is granted copyright protection.
• Copyright protection lasts a long time (length of the life of the creator +70 years in the United States), but never an indefinite amount of time.
• Copyright protection is balanced against other public interests like: freedom of expression, right to information, and the needs of people with disabilities. Sometimes, there must be legal exceptions to and limitations on copyright to serve the public's best interests.

The U.S. Constitution (Article 1 Section 1 Clause 8) explains that the purpose of copyright is "…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."

Exceptions and limitations to copyright are an extremely important part of copyright design. If your use of another’s copyrighted work falls within an exception or limitation to copyright, then you are not infringing copyright. Generally speaking:

• Exceptions to copyright allow works to be used without compensation to the creator (e.g. fair use)
• Limitations to copyright require agreement and compensation (e.g. statutory license for use)

The most common and therefore most important exception to U.S. copyright law is "fair use," which is laid out in 17 U.S. Code § 107. In court, there is a four-part test to determine whether use of a copyrighted work constitutes fair use:

• The purpose and character of the use

  • Is it for public good or commercial use?

• The nature of the original copyrighted work

  • Is it closely held to a single person or is it widely available? Sometimes, they'll consider if it's creative or descriptive

• The amount and substantiality of the portion of the original work used in the new work

  • How much of the work do you need to use to do the thing you're trying to do?

• The effect of the use upon the potential market

  • Is there market harm? Is the new work a substitute for the original?

17 U.S. Code § 504(c)2 also allows for remission of damages in cases when "an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords." All this to say, good faith educational uses of copyrighted material are generally protected, because educational use of copyrighted materials is important for the public good.

Another instance in which a creative work can be used freely is after it enters the public domain, whether that occurs because copyright terms expire, or because the creator chooses to place the item in the public domain, or because the creator didn't fix the work in a tangible medium (when creating in the United States).

Some sites that host works in the public domain are Project Gutenberg, Public Domain Review, Digital Public Library of America, Wikimedia Commons, Internet Archive, Library of Congress, Flickr, Europeana, the Smithsonian, the Auckland Museum and the Rijksmuseum.

*Notes:

• The absence of a copyright symbol or other license symbol does not necessarily mean a work is in the public domain.
• In some instances, cultural heritage elements that are considered in the public domain under copyright law might be subject to other considerations or restrictions that need to be taken into account. This is especially the case of cultural works, sacred objects, rituals, or other types of traditional cultural expressions and knowledge created by and under the custodianship of Indigenous peoples or local communities. For more information, you can explore platforms like Mukurtu and the Traditional Knowledge Labels.

Why is it important to understand some copyright basics when talking about Creative Commons? Because: Creative Commons licenses are types of copyright licenses. Default “all rights reserved” copyright protections mean that all rights to copy and adapt a work are reserved by the author or creator (barring exceptions and limitations). In contrast, Creative Commons licenses adopt a “some rights reserved” approach, enabling an author or creator to allow their works to be reused by the public under certain conditions.

Check the next LibGuide page for specifics about the conditional uses allowed by each CC license.