More information about copyright concepts
- Liability and remedies
- Generally, to establish a claim of copyright infringement, a creator or holder of copyright need only show that she has a valid copyright in the work and that the defendant copied protected expression from the work. However, other facts may be relevant in some cases, such as if the defendant asserts that an exception or limitation applied to their use or that their work was independently created.
- The copyright laws of some countries grant copyright holders statutory remedies for infringement. The type and amounts of remedies including damages are established by law. Be aware of the existence of statutory damages and other remedies permitted by applicable law, including statutory provisions that award legal fees in some circumstances.
- Licensing and transfer
- Many creators and copyright holders need help to fully exercise the exclusive rights or they may simply give others permission to exercise the right granted by copyright law. Some creators choose to license some or all of those rights, either exclusively or non-exclusively. Others choose to sell their rights outright and allow others to exercise them in their place, sometimes in exchange for royalty payments. There are often formalities associated with the sale or exclusive licensing of copyrights.
- Termination of copyright transfers and licenses
- The laws of some countries grant copyright holders the right to terminate transfer agreements or licenses even if the transfer agreement or license doesn’t allow termination. In the United States, for example, copyright law provides two mechanisms for doing so depending on when the transfer agreement or license became effective. For more information on these rights and a tool that allows creators and copyright holders to figure out if they have those rights, visit https://rightsback.org.
- CopyrightX by Harvard Law School.
- This is a course on copyright provided by the Harvard Law School’s HarvardX distance learning initiative:
- http:// online-learning.harvard.edu/course/copyrightx.
- United States Copyright Office Circular #1, “Copyright Basics.”
- Copyright for Educators & Librarians by Coursera. All rights reserved.
- A course on copyright provided by Coursera:
- Copyright and Digital Heritage 101. CC BY NC.
- Copyright Cortex. Resources on Copyright for Cultural Heritage institutions.
- Resources on moral rights.
More on philosophies of copyright
- William Fisher, “Theories of Intellectual Property,” in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001).
- Craig, Carys J., “Feminist Aesthetics and Copyright Law: Genius, Value, and Gendered Visions of the Creative Self” (2014). Osgoode Legal Studies Research Paper Series. 31.
- Greene, K.J. “Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues.” American University Journal of Gender, Social Policy & the Law. 16, no. 3 (2008): 365-385.
More information about the public domain
- Copyright Term and the Public Domain in the United States by Cornell University Library Copyright Information Center. CC BY. 3.0.
- This provides copyright information on when resources fall into the public domain, depending on the circumstances under which they were written:
- Out of Copyright: Determining the Copyright Status of Works
- This is a website to help determine the copyright status of a work and whether it has fallen into the public domain in the European union:
- The Public Domain Manifesto by Communia. GNU General Public License
- This is a website with information about the public domain, the values of some of its supporters, and some recommendations on how to use the public domain:
- The Europeana Public Domain Charter. CC BY SA
- This is a multilingual resource that establishes some principles for cultural heritage institutions on how to approach the digitization of public domain works: https://pro.europeana.eu/post/the-europeana-public-domain-charter
- Center for the Study of Public Domain by Duke Law School
- This website contains information and events regarding the public domain:
- Public Domain Review
- This is an online journal and not-for-profit project that showcases works which have entered the public domain. The journal is dedicated to the exploration of curious and compelling works from the history of art, literature, and ideas:
- Margoni, T., 2014. The Digitisation of Cultural Heritage: Originality, Derivative Works and (Non) Original Photographs (Institute for Information Law (IViR) No. ID 2573104).
- A paper that explores whether non original reproductions of public domain works should receive copyright protection, with special focus on the European Union.
More information about Traditional Cultural Expressions
- Is it possible to decolonize the Commons? An interview with Jane Anderson of Local Contexts, by Jennie Rose Halperin, CC BY
- An interview with Jane Anderson from Local Contexts that explores the complementary visions between Creative Commons and Traditional Knowledge: https://creativecommons.org/2019/01/30/jane-anderson/
More information about limitations and exceptions to copyright
- Fair Use Evaluator:
- This is an online tool to help users understand how to determine the “fairness” of use under U.S. copyright law, and work with materials under fair use:
- This is an online tool to help users understand how to determine the “fairness” of use under U.S. copyright law, and work with materials under fair use:
- U.S. Copyright Office Fair Use cases:
- Program on Information Justice and Intellectual Property by American University Washington College of Law. CC BY 3.0
- See this program’s “Publications on Fair Use” to understand the under- lying principles and best practices of fair use: http://pijip-impact.org/ fairuse/publications.
- Copyright and Exceptions by Kennisland. CC0 1.0 Public Domain Designation
- This is an interactive map of European copyright exceptions:
- A Fair(y) Use Tale by Eric Faden. CC BY-NC-SA 3.0
- This is a creative educational fair-use mashup which ironically makes use of clips from Disney films as it explains how copyright works. The discussion of fair use begins around the 6-minute 30-second mark in the video:
- The Treaty of Marrakesh Explained by the World Blind Union.
- This is a post prepared by the WBU that explains some of the basic points of the Marrakesh Treaty, and how it ought to be implemented nationally. http://www.worldblindunion.org/english/news/Pages/The-Treaty-of-Marrakesh.aspx
- Copyright Limitations and Exceptions for Libraries & Archives by the International Library Federation Association, CC BY 4.0.
- IFLA is proposing an international framework that takes into account the needs of libraries to have a balanced copyright system. https://www.ifla.org/copyright-tlib
Participant Recommended Resources
CC Certificate participants’ recommended many additional resources through Hypothes.is annotations on the Certificate website. While Creative Commons has not vetted these resources, we wanted to highlight participant’s contributions here: https://certificates.creativecommons.org/cccerteducomments/chapter/additional-resources-2
Additional information on digitized works in the public domain, orphaned works, international treaties, as well as limitations and exceptions
A CC Certificate Facilitator offered the following content. Creative Commons has not yet vetted this information, and some of it exceeds the introductory level of the Certificate course.
Digitized works in the public domain
- There has been debate about whether non-original reproductions of public domain works incur new rights, whether through copyright protection or related rights. In the US, the Bridgeman v. Corel case in the Southern District of New York found that non-original reproductions didn’t fulfill the “originality” criteria that is necessary to receive copyright protection in the US. Lower courts have found that assessment to be correct, but there has not been a case yet that reached the US Supreme Court.
- Other countries have considerations that differ from the “originality” criteria. For example, in the UK, “sweat of the brow” is also a relevant legal doctrine that might grant an additional copyright or related right to a digitization of a public domain work. In Germany, reproductions of public domain works are protected by a related right. See the “Similar and related rights” in Section 2.1.
- Generally, there are significant jurisdictional differences around this issue. Creative Commons suggests that reproduction of public domain works should remain in the public domain.
- The combination of a very broad scope of copyright protection, long terms and exclusive rights creates challenges for the general public’s access to content, but also for the institutions responsible for taking care of the collective knowledge of society. For example, the combination of very long terms with the automatic protection granted by copyright has created a massive amount of “orphan works” — copyrighted works for which the copyright holder is unknown or impossible to locate. In several countries, institutions cannot make copies of these works in order to preserve them without infringing on copyright.
International treaties and agreements
- The most important of those international agreements is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)—negotiated as part of the agreements that gave birth to the World Trade Organization in 1994. TRIPS is a very broad agreement that includes other rights such as trademarks and patents. It’s subject matter exceeds the scope of this course, but it’s worth noting here: TRIPS made copyright a matter of international trade, including commercial sanctions on countries that do not abide by some of the principles set up in TRIPS (which draw from previous international agreements, such as Berne). For example, if a change in a national copyright law to introduce a limitation and exception doesn’t follow the Berne’s three-step test (referenced in Section 2.4), the country trying to implement the limitation and exception could be commercially sanctioned. TRIPS has lasting impacts on important public policy considerations, such as access to knowledge or access to medicines. It also contributed to further standardization of some crucial copyright protection concepts, blurring the lines of national copyright laws.
- Another manner in which copyright policy is made is through bilateral and multilateral trade agreements. As of 2017, there are several negotiations underway. These include the Trans-Pacific Partnership (TPP), the Regional Comprehensive Economic Partnership (RCEP), and the renegotiation of the North American Free Trade Agreement (NAFTA). A major drawback of multilateral trade negotiations is that they are typically conducted in secret with little or no participation from civil society organizations and the public.”
- The Marrakesh Treaty (formally known as “Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities”) is the first international treaty that is focused on balancing copyright protection to grant rights to the public, in this case, people with print disabilities. As of June 2020, at least 80 countries are now signatories of the agreement.
- The agreement sought to solve what it has been coined by the World Blind Union as the “book famine”, where less than 10% of printed materials are produced in accessible formats. The agreement provides a concrete set of limitations and exceptions for people with disabilities.
- However, this important international agreement still needs to be made into national copyright law in the countries where the agreement has entered into force. The International Federation of Library Associations (IFLA) is monitoring the implementation of the Marrakesh Treaty around the world here, providing an updated version of the current status in different countries.
- Until the ratification of the Marrakesh Treaty in 2016, there was no international treaty that provided standard minimums for limitations and exceptions. Unlike copyright protection, that has been signed into international copyright law to expand scope and terms of copyright protection globally, there are no international treaties that give limitations and exceptions at the global level for activities as important as education or research, or for sectors as crucial as libraries, archives and museums.
Limitations and Exceptions
- The extent of activities that countries allow under limitations and exceptions can vary dramatically. WIPO generally commissions studies that offer an overview of limitations and exceptions around the world. These do not reflect WIPO’s position, but they are useful as a way to understand the status in other countries. For example, the study on limitations and exceptions for libraries of 2015 found that of 188 countries signatories of the Berne Convention (at the moment of the study), 32 countries do not provide any exception or limitation for libraries. A similar study conducted on museums that same year found that of the 188 countries, only 45 countries had provisions on their laws that specifically permit museums to make certain uses of works in their collection without the prior authorization of the rights holder.
- Despite varying national laws, typically most countries include limitations and exceptions in the following areas:
- Right to quote: this is an exception to allow inclusion of other works into one’s work to exercise criticism, commentary, or illustrate a point.
- Educational activities: to allow for educational activities to take place without imposing a burdensome process to obtain permission.
- Libraries, archives and museums: to allow for these important institutions to carry out their activities without infringing copyright, such as preservation activities or providing access to knowledge and information to patrons.
- People with disabilities: most countries include some type of exception for blind people.
- It is always important to check your national copyright law to check what limitations and exceptions it provides. And remember: the principle of territoriality referenced in Section 2.2 also applies for limitations and exceptions, meaning that limitations and exceptions are always country-specific.
- This situation might change with the implementation of Article 14 of the new Directive of Digital Single Market in Europe, which establishes that reproductions of public domain artworks should not be granted a new copyright. Communia, a coalition of different organizations from Europe (including several CC chapters), has analyzed this extensively. ↵
- Important aspects of the agreement are: Any “authorized entity”, such as libraries and archives, education institutions, or organizations of disabled people, can adapt printed works to produce accessible materials for people that have “print disabilities”, without asking permission from the copyright owner and without infringing copyright. “Print disabilities” expands the scope of beneficiaries. Many countries have national exceptions that allow for blind people to access printed works. People with print disabilities include people that might have difficulties accessing printed texts due to motor disabilities (for example, they can’t turn the pages) or neurological disabilities that make their access to printed works hard (for example, autism), among others. The agreement includes a clause on what is called “cross-border exchange of works”, allowing for authorized entities from one country to exchange accessible works with an authorized entity from another country, without asking permission from the copyright owner or infringing copyright. ↵
- It is important to note that, at WIPO, members of Communia have identified and discussed the lack of international agreements that allow basic activities such as education and research, or the important work of libraries, archives and museums, creates an unbalanced copyright system, evidenced here: https://www.communia-association.org/2019/04/03/sccr-38-communia-general-statement-exceptions-limitations/. ↵