Copyright: what is it?
In the US, Title 17 of the US Code governments the 'copy rights' assigned to the creator of an intellectual/creative work. Those rights can be owned, lent, sold, and inherited. The copyright owner (not necessarily the creator) has the exclusive right to do and to authorize others to:
- reproduce the work
- prepare derivative works based upon the work
- distribute copies of the work
- perform/display the work publicly
Copyright law incorporates certain restrictions on those rights.
These rights are invested in any work as soon as it is put into a fixed form. No copyright notice or registration is required.
Current copyright persists for a long time-- the life of the author plus 75 years, or in the case of "works made for hire" 95 years total.
Once copyright expires, the work goes into the public domain, where there are generally few or no restrictions. (The exception is derivative works from a public domain work, which are copyrighted to their creator, and material restricted by certain types of licensing.)
Anything published before 1923 has passed into the public domain (in the U.S. only.) If it was created but not published, other rules apply; items published between 1923 and 1978 (when the last really big copyright law was passed) vary in their status.
Who owns my stuff?
If you were paid by someone else to create 'intellectual property', they may or may not be able to claim ownership.
If you have contracted with a publisher, you may have given/sold your copyrights to the publisher, with or without specific restrictions related to preprints.
Otherwise, it's yours.
However, the trouble is-- everyone else's work also belongs to either them, their employer, and/or their publisher!
How can I use other people's copyrighted stuff?
Permissions and Licensing
The most straightforward way to use someone else's work is to get their permission. In some cases, if it is an individual and they are relatively friendly, it may be as easy as asking the creator if you can use it. However:
- Not everyone responds to their email
- Not everyone who distributes something turns out to be the legal copyright owner
- Publishers and employers often like to get money in exchange for permissions. This can be expensive and burdensome.
Fair Use
But wait, you say, I've been using copyrighted stuff all my academic life, and the Copyright Police (tm) never came after me!
Partly that's because of the Fair Use limitations on exclusive rights, without which it'd be really hard to have an academic discussion.
17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
In other words, depending on
- what you're using it for and whether you're getting money
- what kind of work you're using
- how much of the work you're using
- how much the owner stands to lose or gain by your use of the work.
Which is why it's usually ok to reproduce multiple paragraphs from a literary work in your paper, but not ok to scan an entire book for your class so they don't have to buy it. Copyright owners, publishers, academics, creators, rights organizations and lawyers are spending a lot of time, especially nowadays, arguing over what constitutes fair use and what is infringement.
There are some guidelines and rules of thumb, but none of them have any explicit legal standing.
Alternatives to standard copyright
So, how can you avoid finding yourself (and Drew) in a legal wrangle over whether your use is fair?
Simple answer: try using materials that are explicitly 'licensed' for free distribution. Two of the most common are CopyLeft (used mostly for sofware) and Creative Commons.
Copyleft
Creative Commons
Finding Creative Commons Educational Resources
Unfortunately, this four factor test doesn't yield a hard and fast rule as to when something is fair use and when it's not.