Navigating copyright can be a challenge, even for information professionals. There are complex copyright laws, nebulous concepts like “fair use” and “transformative use,” and alternative approaches to copyright such as Creative Commons licensing and the GNU General Public License. This resource is intended to provide a basic orientation to important copyright concepts and useful links to further information for faculty who are creating or curating materials for use in their teaching; it should not be taken as legal advice.
In the United States, copyright is granted to originally authored works as soon as they are set into their complete, fixed form. A wide spectrum of works are copyrightable, including texts, images, music, and video. Facts and ideas are not copyrightable, though their expression may be (that is, a text describing facts or ideas may be a copyrightable work; this is how you can copyright a history or science textbook that contains basic facts and/or concepts). Processes and symbols are not copyrightable, though the former (such as a manufacturing process) may be covered under patent and the latter (such as a logo) under trademark law.
It should be noted that the copyright law that applies to a particular use is determined by where that use takes place. This means if you teach a course with the same materials in Paris, Texas and Paris, France you will be working under different copyright laws in each situation. (Don’t worry about this too much, international treaties and agreements have resulted in a network of similar, though not identical, copyright laws globally. For example, as of 2020, the 179 signatory countries to the Berne Convention agree to grant exclusive copyright to the rights holder for a minimum of the author’s lifetime, plus 50 years.)
The rights granted by copyright do vary some from country to country, but in general, they include the right to reproduce a work (that’s the “copy” part), to distribute or present it to the public, and to alter it (for example, to abridge, translate, or adapt it). Essentially, modern copyright law treats everyone except the rights-holder(s) as the consumers of a fixed product.
There are what are known as “limitations and exceptions to copyright.” To academics, the most familiar form of this is known as Fair Use. Though you may have heard that “any academic use is Fair Use” or “as long as you don’t copy more than 10% of a work it is Fair Use,” neither of these is accurate. Unfortunately, Fair Use is not a fixed legal principle but a combination of four factors that are weighed in each case. According to 17 USC 107, “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.”
This looks complex—and it can be. What you need to know is that Fair Use is determined for each use of each object, and hinges on “the potential market for or value of the copyrighted work.” If you want to use copyrighted materials in your course under the Fair Use exception you will need to consider how much of the work you intend to use (the smaller the portion, the more likely it will pass muster), how substantial it is (is this small portion the only reason anyone buys this work?), and the number of students impacted (a class of 5 and a class of 105 would likely be determined differently). For more specific guidance, feel free to reach out to a Baruch librarian.
Creative Commons Licenses
Creative Commons licenses allow creators both to license their work openly and to access works that can be used outside of regular copyright restrictions. The infographic below gives a basic overview, and further information can be found on the Creative Commons website.
There’s a lot more to know about copyright and Creative Commons. For some resources to start learning more, check out the copyright guide from Baruch’s Newman Library, the website of the U.S. Copyright Office, or contact the Center for Teaching and Learning.