Copyright, Fair Use, Creative Commons, and Public DomainWhat’s Legal, What’s Not, and How to Tell Which is Which.

Melissa DiSpaltro

So what’s with all these different licenses, anyway?

There are really only two types of license for intellectual property: copyright and Creative Commons. Copyright is the basic one: it says, in essence, if you created it, it’s yours by law, and nobody can use it without your permission. This is true whether you pay for a copyright license or not. The minute I started typing this slide, these words and ideas were copyrighted. However, it’s extremely difficult to defend your copyright in court without some kind of legal date stamp showing when you made it.Creative Commons works with copyright. It’s essentially blanket permission: you can choose who can use your work and how they can use it, and give permission for anyone meeting those criteria to do so without having to contact you first.

What is copyright?From the Frequently Asked Questions page on www.copyright.gov:“Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

So, for example, the demographic data about a state cannot be copyrighted, but the specific wording, formatting, etc. that an author uses to communicate that data may be copyrighted, e.g. in a textbook.

Basics of copyright• Nobody can use your work for anything without your permission (with

a few exceptions under Fair Use).• Any references to your work must be cited correctly; otherwise, the

person is saying the work belongs to them. Adaptations can fall under copyright as well, if there aren’t sufficient differences between the adaptation and the original work. However, citation does not prevent you from being charged with copyright violation! It depends how the work is used.

• Copyright is automatic upon creation of the material. • To uphold copyright in a court of law, you need proof that you created

the work before the other person. • Copyright can only be defended in a court of law, which makes it

expensive for both the defendant and plaintiff.• School districts can be, and have been, sued for breach of copyright

in classrooms. This includes use of copyrighted images.

Four types of Creative Commons Licenses

BY license: The only requirement to use this work legally is to include correct attribution: “By Jim Doe.” All CC-licensed work must contain attribution.NC (Non-Commercial): Prohibits commercial use of the work.ND (No Derivatives): Prohibits the sharing of adaptations of the material.SA (Share Alike): Requires that adaptations of the material be released under the same license.

These licenses are intended for use by anyone who holds the copyright to the work, and are enforceable in courts of law around the world. Anyone can apply for one, for free. There’s a database of CC-licensed works in the last slide of this presentation.

Fair UseSection 107 of the Copyright Act provides for four factors which can be considered “Fair Use” of copyrighted materials. These include:

The purpose and character of the use of copyrighted work

Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes. This is where educational Fair Use comes in.

Fair Use (continued)The nature of the copyrighted workA particular use is more likely to be considered fair when the copied work is factual rather than creative.

The amount and substantiality of the portion used in relation to the copyrighted work as a wholeHow much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its "heart," may weigh against fair use. But "how much is too much" depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.

The effect of the use upon the potential market for or value of the copyrighted workThis factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.

So how does Fair Use work in a school?

To be safe, limit your use of copyrighted material. Some publications, like newspapers, have specific clauses for use in classrooms; make use of them.Keep your use of any one work small. Copying a class set of an article for use solely in your classroom is one thing; copying an article for distribution to parents or the whole school is an entirely different thing. Be careful.Remember that attribution does not mean you have not violated copyright!Images and logos are also copyrighted.

Public DomainFrom teachingcopyright.org, works in the public domain are:

Works that automatically enter the public domain upon creation, because they are not copyrightable:

Titles, names, short phrases and slogans, familiar symbols, numbersIdeas and facts (e.g., the date of the Gettysburg Address)Processes and systemsGovernment works and documents1

Works that have been assigned to the public domain by their creatorsWorks that have entered the public domain because the copyright on them has expired.

Public DomainExpired works are defined as:

All works published in the U.S. before 1923All works published with a copyright notice from 1923 through 1963 without copyright renewalAll works published without a copyright notice from 1923 through 1977All works published without a copyright notice from 1978 through March 1, 1989, and without subsequent registration within 5 years.

There is no legal protection for any work in the public domain. It may be used by anyone for any reason.

So, to sum up:Copyright law applies in classrooms as much as it does anywhere else.Fair Use has specific rules. Be aware and follow them.Creative Commons also has specific rules, but they’re looser than copyright and Fair Use. Be aware and follow them.Your only 100% sure “safe” works are original material, purchased material with classroom permissions (this is why we have to use videos from the district library!), or works in the Public Domain.

For Your Information

Database of Creative-Commons-licensed works: https://wiki.creativecommons.org/wiki/Content_DirectoriesIndex of cases regarding Fair Use: http://copyright.gov/fair-use/Resources for teaching about copyright in the classroom: http://www.teachingcopyright.org/resources