2.1 Copyright Basics

2.1 Copyright Basics

Is copyright confusing to you? Get some clarity by understanding its history and purpose.

Learning Outcomes

• Explain basic principles of copyright
• Trace the basic history of copyright
• Explain the purpose of copyright
• Explain general copyright terms

Big Question / Why It Matters

Why do we have laws that restrict the copying and sharing of creative work? How do those laws work in the context of the internet, where nearly everything we do involves making a copy?

Copyright is an important area of law, one that reaches into nearly every facet of our lives, whether we know it or not. Acts that are allowed by copyright in physical formats – like lending a friend a physical book^[1] – are treated differently by copyright when performed in an online environment, such as sharing the same book on the internet. Because almost everything we do online involves making a copy, copyright is a regular feature in our lives.

Personal Reflection / Why It Matters to You

Have you ever wondered who contributes the high-quality media to Wikipedia that illustrate things like the eye of an Antarctic Krill? What might motivate people to make these contributions? Think back to a time when you invested significant effort into a creative project. What was your motivation for doing so? Did you know at the time, you were creating a work very likely protected by copyright? And that copyright restricted most reuses by others without your permission? Did or would knowing that make a difference to you? If so, why?

Acquiring Essential Knowledge

You might not realize it, but copyright law is as integral to your daily life as local traffic laws. Copyright is the area of law that determines how others may access and use the original works of authors (or creators, as we often call them) — works spanning the spectrum from novels and operas, corporate manuals, archives, cat videos, to scribbles on a napkin.

Although copyright laws vary from country to country, there are many commonalities among copyright laws globally. This is largely due to international treaties.

There are some important fundamentals you need to be aware of regarding what is copyrightable, as well as who controls the rights and can grant permission to reuse a copyrighted work.

1. Copyright grants a set of exclusive rights to copyright holders, which means that no one else can copy, distribute, publicly perform, adapt, or do almost anything else other than simply view or read the work without permission of the copyright holder.
2. Copyright grants rights to literary and artistic works that are original. Copyright is available to everything from paintings to blog posts, but all works must meet a certain standard of originality to warrant copyright. Different countries frame the test in different ways, but it is often considered a test of originality and/or authorial presence. Generally speaking, this means the work must have been a creation of its creator and not copied from another work. Note that even a small amount of originality warrants copyright, such as taking a simple picture of your pet.
3. Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas. The difference between an idea and the expression of that idea can be tricky, but it’s also quite important to understand. While copyright law gives creators control over their expression of an idea, it does not allow the copyright holder to own or exclusively control the idea itself.
4. As a general rule, copyright is automatic the moment a work is created, though some countries require that the work be fixed in a tangible medium before granting copyright. In countries that require fixation, such as the United States, you do not have a copyright until you type your poem, record a song, or otherwise capture your work in a fixed form. While registration with the local copyright office often confers certain benefits to the copyright holder and allows you to record your authorship officially, registration is not required to gain copyright protection.
5. Copyright protection lasts a long time. More on this later, but for now it’s enough to know that copyright lasts a long time, often many decades after the creator dies.
6. Copyright protection is balanced against other public interests. The rights granted to copyright owners may be considered against other public interests, such as freedom of expression rights, the right to access information, and the needs of people with disabilities. There are occasions when copyright protections may be limited to serve the public interest.

Note: The combination of very long terms with automatic protection has created a massive amount of “orphan works” — copyrighted works for which the copyright holder is unknown or impossible to locate. You can learn more about orphan works in the Additional Resources for this Unit.

A Simple History of Copyright

The world’s first copyright law was enacted in 1710 in England: the Statute of Anne, “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.” This law intended to support authors’ livelihood at the time, granting 14 years of legal protection from the copying of their books by others

Since then, the scope of the exclusive rights granted under copyright has expanded. Today, copyright law extends far beyond books, to cover nearly any creative expression with even a fragment of originality.

Additionally, the duration of the exclusive rights has also expanded. Today, in many parts of the world, the minimum term of copyright protection granted to a work is the life of the creator plus 50 years post-mortem, or 50 years after publication if it’s a corporate or anonymous work. See the “Worldwide map of copyright term length” reproduced in Section 2.2 for more details about the duration of copyright and its variances worldwide.

And finally, since the Statute of Anne, copyright has become a matter of international law. The international community has created international treaties, which nearly all countries have joined. The result is that copyright laws have been harmonized to some degree around the world. You will learn more about the most important treaties and how copyright works around the world in Section 2.2.

Watch Copy (aka copyright) Tells the Story of His Life from #FixCopyright for a short history of copyright and its relation to creativity and sharing (CC BY 3.0). 

Purpose of Copyright

There are two primary rationales for copyright law, though rationales do vary among legal traditions.^[2][3]

• Utilitarian: Under this rationale, the purpose of copyright is to incentivize creators via the social benefits that will come from those works, including commercial gains.
• Author’s rights: Under this rationale, copyright protection serves to recognize and protect the deep connection authors have with their creative works. This rationale is founded upon moral rights, which ensure attribution for authors and preserve the integrity of creative works.

The utilitarian rationale is more commonly associated with the common law tradition, while authors’ rights is historically identified with the civil law tradition. Do one or both of these justifications resonate with you? What other reasons do you believe support or don’t support the granting of exclusive rights to creators of original works?

While different legal traditions identify more strongly with one or the other of these rationales, or may hold other rationales, many copyright systems are influenced by and draw from both utilitarian and authors’ rights rationales due, in large part, to historical reasons that are outside the scope of this material.

How copyright works – a primer

Copyright law establishes the basic terms of use that apply to works of original authorship. These terms give the copyright holder certain exclusive rights while also recognizing that users have certain rights to use these works without the need for permission.

Who holds a copyright?

Typically, the first holder of a copyright will be the individual person that created a work. However, the exclusive rights granted by copyright can be transferred to others, including legal entities such as corporations, publishers or universities. Understanding who controls the exclusive rights granted by copyright is necessary in order to understand who has authority to grant permissions to others to reuse the work (e.g., adding a CC license to the work).

It is important to note that the author of a work may not necessarily be the copyright holder. For example:

1. Works created in the course of your employment are likely to be owned by your employer, though ownership rules vary by jurisdiction. Common law countries like Australia and the United States typically adhere to some form of a doctrine commonly known as “work-for-hire.” This doctrine generally provides that if you have created a copyrightable work within the scope of your employment, the employer is the owner of, and controls, the economic rights in the copyrighted work. In many civil law countries, such as France and Germany, the law presumes that copyright vests with the employee-author, unless an employment contract dictates or implies otherwise.
2. Independent contractors may or may not own and control copyright in the works they create in that capacity. That determination most always depends on the terms of the contract between you and the organization that engaged you to perform the work.
3. For educators and academic librarians taking this course, it is also worth noting: teachers, university faculty, and learners may or may not own and control copyright in the works they create in those capacities — that determination will depend on certain laws (such as work-for-hire in some instances) and on the terms of the employment or contractor agreement, university or school policies, and terms of enrollment at the particular institution.
4. If you have co-created a single original work that is subject to copyright, you may be a joint owner, rather than an exclusive owner, of the rights granted by copyright law. Joint ownership generally prohibits one author from exploiting a work without the consent of the others, though the United States is a notable exception to this rule.^[4] If, on the other hand, you contributed a discrete work to a larger collective work, such as an encyclopedia or anthology, you likely own a copyright on your individual contribution.

Ownership and control of rights afforded by copyright laws are complicated and vary by jurisdiction. For more information, please see the additional resources.

What is copyrightable?

In countries that have signed on to the major copyright treaties described in more detail in Section 2.2, copyright exists in the expansively defined categories of “literary and artistic works.” Though the particular rules around what is copyrightable, and how much originality a work demonstrates, vary on a country-by-country basis. The term ‘literary and artistic works’ actually covers a wide variety of creative expression formats (written, visual, audio, and their combinations). Works such as textbooks, videos of lectures and student essays are copyrightable. While the list of works below is not exhaustive, can you think of a type of work within each category?

1. Literary works
2. Musical works
3. Artistic works or works of visual art
4. Dramatic works
5. Cinematographic works (including audiovisual works)
6. Translations, adaptations, arrangements of literary and artistic works
7. Collections of literary and artistic works,
8. Databases
9. Computer software

These categories are very broad and can apply to works that have some elements that are creative and some elements that are strictly functional: for example, a mathematics textbook is a “literary work” even though portions of it are uncopyrightable equations and only the original text is copyrightable work.

What are the exclusive rights granted?

Creators who have copyright get exclusive rights to control certain uses of their works by others. Most countries make a distinction between economic rights, which are the exclusive rights, and moral rights. The World Intellectual Property Organization defines them in the following way:^[5]

• Economic rights: rights that allow right owners to derive financial reward from the use of their works by others.
• Moral rights: rights that allow creators to take certain actions to preserve and protect their link with their work.

Economic rights

Creators who have copyright get exclusive rights to control certain uses of their works. National laws define these rights in different ways, but the exclusive rights in most countries include at least the following in some formulation:

1. the exclusive right to make copies of their works (right of reproduction)
2. the exclusive right to publicly perform and communicate their works to the public, including via broadcast
3. the exclusive right to make adaptations, such as translations of their works as well as changes to the arrangements of their works

This means that if you own the copyright to a particular novel, no one else can copy or adapt that novel without your permission (with important caveats, which we will get to later in Section 2.3).

Keep in mind there is an important difference between being the copyright holder of a work and controlling how a particular authorized copy of the work is used. For example, while copyright owners own the exclusive rights to make copies of their novels, those who own physical copies of the novels can generally do what they want with the copies,^[6] such as loaning them to friends or selling them to used bookstores, or donating them to libraries. This is why libraries can loan physical works as many times as needed without having to ask permission or pay again for the works. Compare that with a subscription database or an e-book lending system, where users purchase access to the same materials.

Conversely, the fact that someone owns or stewards a physical work doesn’t grant the owner of the object any copyright over the work. For example, if a museum owns a sculpture that is 1,000 years old, the museum does not necessarily own the sculpture’s copyright permissions. They are allowed to sell it, donate it, but they can’t control how others might make copies of the work, including taking photographs, making drawings or copies of the sculpture.

One of the exclusive rights of copyright is the right to adapt a work.^[7] An adaptation (or a derivative work, as it is sometimes called) is a new work based on a pre-existing work. In some countries, the term “derivative work” is used to describe changes that include but are not limited to “adaptations” as described in the Berne Convention for the Protection of Literary and Artistic Works, which uses both of these terms in different articles.

For purposes of this course and understanding how CC licenses and public domain tools work, the terms “derivative work” and “adaptation” are interchangeable and mean: a work that is created from a pre-existing work through changes that can only be made with the permission of the copyright holder. In this course, we also use the term “remix” as an additional way of describing derivative work or adaptation, though this is not necessarily a widely adapted term within the rest of copyright. It is important to note that not all changes to an existing work create an adaptation. Generally, a modification rises to the level of an adaptation or derivative when the modified work is based on the prior work and manifests sufficient new creativity to be copyrightable, such as a translation of a novel from one language to another, the creation of a screenplay based on a novel, or the adaptation of a written work to an accessible system such as Braille.

Copyright owners often grant permission to others to adapt their work. Adaptations are entitled to their own copyright, but that protection only applies to the new elements that are particular to the adaptation. For example, if the author of a poem gives someone permission to make an adaptation, the person may rearrange stanzas, add new stanzas, and change some of the wording, among other things. Generally, the original author retains all copyright in the elements of the poem that remain in the adaptation, and the person adapting the poem has a copyright in their new contributions to the adapted poem. Creating a derivative work does not eliminate the copyright held by the creator of the pre-existing work.

Notes about moral rights and additional rights

Moral rights

Most countries have moral rights. Moral rights draw on the author’s rights tradition, and they are rights that protect, sometimes indefinitely, the bonds between authors and their creative outputs. Moral rights are distinct from the rights granted to copyright holders to restrict others from economically exploiting their works, but they are closely connected.

Moral rights typically include the right to be recognized as the author of the work (known traditionally as the “right of paternity”), and the right to protect the work’s integrity (generally, the right to object to distortion of the work or the introduction of undesired changes to the work).

Countries that recognize moral rights consider them so integral that in most cases they cannot be licensed away or waived by creators, and they last indefinitely, even when the economic rights on the work might have expired.

Creative Commons licenses and legal tools acknowledge these rights, which can extend beyond the scope of the license or legal tool applied, and address them in a way that grants reusers the right to use licensed material according to the license terms as far as national law permits. (Where a licensor is in a jurisdictions where moral rights are not waivable or licensable, moral rights on their licensed works remain in full effect even when a CC license is applied, but where those rights are waivable or licensable they are waived to the extent necessary to exercise the rights granted under copyright.)

Please see additional resources for more information about these important rights.

Note: Some legal traditions in the US (and in other common law countries) tend to put “moral rights” outside of the scope of copyright, as a separate category of rights, and only consider copyright as the economic rights. For most countries in the world, economic and moral rights are connected together. For more information about moral rights in the US, see the additional resources.

Similar and Related Rights

Similar and related rights (including rights known in many countries as “neighboring rights”) relate to copyrighted works and grant additional exclusive rights beyond the basic rights described above. Some of these rights are governed by international treaties, but they also vary country by country. Broadly speaking, these rights are designed to give some “copyright-like” rights to those who are not themselves the author but are involved in communicating the work to the public, such as broadcasters and performers. Some countries like Japan have established these rights as part of copyright itself; other countries treat these rights separately from, though closely related to, copyright.

An in-depth discussion of these rights is beyond the scope of this unit. What is important to be aware of is that they exist, and that Creative Commons licenses and public domain tools cover these rights, thereby allowing those who have such rights to use CC tools to give the public permission to use works in ways that would otherwise violate those rights. Please see additional resources for more information about similar and related rights.

Does the public have any right to use copyrighted works without permission from the copyright holder?

Many countries grant the public some rights to use copyrighted works without permission and without violating the exclusive rights given to creators. Some of these exceptions might require economic compensation for these uses, but most do not. These authorized uses are generally called “exceptions and limitations” to copyright.

There are two approaches to granting limitations and exceptions. Some limitations and exceptions itemize the specific sector beneficiary of the exception and the conditions in which the exception can be applied. For example, education-specific exceptions for education or exceptions for people with disabilities are typically made this way.

Other exceptions and limitations are flexible and can allow for broad uses of a work as long as certain conditions are met.

Some countries have flexible exceptions and limitations such as the concept of “fair use” in the United States or, “fair dealing” in some Commonwealth countries. There are also education-specific exceptions and limitations in many other parts of the world, including countries that follow the civil law tradition in the Global South. We will explore these concepts in detail in Section 2.4.

As a general guideline, exceptions to copyright are free, while limitations to copyright are subject to payment. A compulsory, statutory license is considered a limitation, where “fair use” is considered an exception.

Countries can have a combination of both itemized and flexible limitations and exceptions. For example, the US has the TEACH Act, a very sector-specific limitation and exception, and fair use, which is a very broad limitation and exception.

What is important to know is that copyright law does not require permission from the copyright owner creator for every use of a copyrighted work. Some uses are permitted as a matter of copyright policy that balances the sometimes competing needs of the copyright owner and public interest.

What else should I know about copyright?

As noted at the beginning of this unit, copyright is complex and varies around the world. This unit serves as a general introduction to its central concepts. There are some concepts, such as 1) liability and remedies, 2) licensing and transfer and 3) termination of copyright transfers and licenses that you should be aware of because you are likely to encounter them at some point. You will find a comprehensive explanation of these concepts and the other issues raised in this unit in the additional resources.

Distinguishing Copyright from Other Types of Intellectual Property

Intellectual property is the term used for the rights – established by law – that empower creators to restrict others from using their creative works. Copyright is one type of intellectual property, but there are many others. To help understand copyright, it is important to have a basic understanding of at least two other types of intellectual property rights and the laws that protect those rights.

• Trademark law generally protects the public from being confused about the source of goods and services. The holder of a trademark is generally allowed to prevent uses of its trademark by others if the public will be confused. Examples of trademarks are the golden arches used by McDonald’s, or the brand name Coca-Cola. Trademark law helps producers of goods and services protect their reputation, and it protects the public by giving them a simple way to differentiate between similar products and services.
• Patent law gives inventors a time-limited monopoly to their inventions — things like mouse traps or new mobile phone technology. Patents typically give inventors the exclusive right to make, have made, use, have used, offer for sale, sell, have sold, or import patentable inventions.

For a brief introduction to the different types of intellectual property, watch the 3-minute video How to register a Trademark (Canada): Trademarks, Patents and Copyrights – What’s the Difference?

How to Register a Trademark (Canada): Trademarks, Patents and Copyrights – What’s the Difference? by TheTrademarkGroup. CC BY 3.0.

Other types of intellectual property rights include: 

1. Design patents: these are special types of patents that protect the designs of objects that are otherwise functional rather than artistic; for example, the distinct curved shape of a Coca-Cola bottle.
2. Geographical indications: this type of IP, usually for food and agricultural products, allows for a particular place name to be used for that product only if the product was actually grown or produced there. Most famously, “champagne” only comes from the Champagne region of France.
3. Trade secrets and confidential information: these refer to protection for information that is commercially valuable and kept secret from the public; for example, a secret recipe, manufacturing process, or list of customers. A trade secret, which lasts as long as the information is kept secret, is in some ways the opposite of a patent, which grants a monopoly in exchange for publication.

Final remarks

Copyright law has evolved for over 300 years across multiple continents. Different legal systems have defined different approaches and considerations about protection of works and their creators. Unique cultural and economic changes have influenced copyright law over time.

Copyright law plays an important role whenever we interact with creative works in our daily lives. Now, digital technologies have made it easier than ever to create, copy, modify, share and reuse works. Since nearly every use of a work online involves making a copy, copyright law plays a role in nearly everything we do online.

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