By Chrystal Pickell Vandervest
Read time: 4 minutes

Before we can talk about the anatomy and use of CC Licenses and CC-Licensed Works for your next OER project, it is essential that we have a base understanding of copyright. 

Copyright law’s relationship with intellectual property 

Copyright law falls under the umbrella of intellectual property (rights that allow creators to restrict the use of their creative works).¹ There are many intellectual property rights, but you only need to know about three for our purposes – trademark law, patent law, and copyright law. 

• Trademark law protects the public from being confused by commercial brands that are too similar. This law allows consumers to easily identify the producers of goods and services, and it protects the reputation of a business’ commercial identity or brand.² 
• Patent law protects the inventor of a process, machine, article of manufacture, or composition of matte. A patent keeps others from profiting off the invented technology.³
• Copyright law protects authors of original creative works with exclusive rights to make, sell, and create derivatives of their work.⁴

Copyright law’s two primary rationales

Up first is utilitarian. This rationale is mostly associated with the common law tradition, and the goal is to encourage authors to create works for social benefits.⁵

On the other hand, the author’s rights rationale is mostly associated with the civil law tradition. And, it protects the authors’ connection to and the integrity of the creative work.⁵

This isn’t an either/or choice. Copyright systems are built (in part) on a balance of both of these rationales.⁵

Getting your work copyrighted 

It’s easier than you might think. Generally, copyright is automatic the moment a work is created. In some countries, it must be fixed in a tangible medium before copyright is granted.⁶  

Not everything is copyrightable (or exclusively owned by you)

Copyright grants rights to literary and artistic works that are original and not copied from another work. But, copyright doesn’t protect facts or ideas (only the expression of ideas).⁶ 

You should sit down for this one. Ready? An author can create a work that is copyrightable and still not own the copyright. *dramatic pause* Copyrightable works created in the scope of your employment belong to your employer. This is known in the United States as work-for-hire.⁷ If you’re unsure of who owns the copyright of a work you created during your employment, talk with your employer and review the terms of your employment or employment contract.

In academia, it’s common to co-create original works and all authors own the copyright. And, if you contribute to a collective work, you may only own the copyright to your contribution and not the collection as a whole.⁷

Exceptions to the rule

There’s always an exception (or two or three) to the rule, and copyright law is no exception. These exceptions and limitations are usually written into copyright law in a couple of ways. 

1. Specific activities that are excluded from copyright are listed
2. Guidelines to determine exceptions most commonly known as fair use⁸  

Another limitation on exclusive rights comes from compulsory licensing schemes. This allows for the reuse of copyrighted works without asking for permission and requires payment.⁸  

The public domain

Works in the public domain are free from copyright.⁹ This doesn’t mean a free for all. A work can be in the public domain in one country and still copyrighted in another, so you can only freely use the work in the country where it’s in the public domain.¹⁰ Earlier we talked about intellectual property restrictions. These restrictions could still apply to works in the public domain.¹⁰

The public domain is ever-growing. There are a few ways a work can enter the public domain.⁹

• The copyright expires
• The work was never entitled to copyright protections
• The creator dedicates work to the public domain before the copyright expires
• A copyright holder failed to comply with formalities to acquire or maintain their copyright

The use of works in the public domain usually follows a set of community norms. And, Creative Commons has created public domain guidelines to help communities create and adopt norms.¹¹ It won’t be a surprise to see that crediting the author is the first guideline. 

I also want to note that you should consider the ethics of sharing works in the public domain and whether it might be harmful or disrespectful.¹² And, there are works in the public domain that are under the custodianship of Indigenous peoples or local communities. There are cultural rights or interests and customary laws or protocols that may govern the access and use of these works.¹³

This is only an introduction

Copyright is so much more than what I’ve shared with you here. I encourage you to do your research and reach out to experts to learn more about what I’ve briefly covered here. 

This article is the second in a series Chrystal Pickell Vandervest is writing as part of the Creative Commons certification course. The full collection of articles can be found on MCLS’s Creative Commons articles page.

The content of this article is not legal advice. It’s for educational and informational purposes only and is not a substitute for professional advice. You are encouraged to seek professional advice and counsel.

“What you need to know about copyright” by Chrystal Pickell Vandervest is licensed by MCLS under CC BY-NC-SA 4.0

Image Attributions

‘creative director’ by Iconathon is in the public domain

Sources

¹Distinguishing Copyright from Other Types of Intellectual Property/pg. 40. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
²“United States trademark law” from Wikipedia. CC BY-SA 3.0.
³“United States patent law” from Wikipedia. CC BY-SA 3.0.
⁴“Copyright law of the United States” from Wikipedia. CC BY-SA 3.0.
⁵Purpose of Copyright/pg. 25. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
⁶Acquiring Essential Knowledge – an Overview/pg. 23. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
⁷How copyright works – a primer/pg. 26. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
⁸Acquiring Essential Knowledge/pg. 46. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
⁹Acquiring Essential Knowledge/pg. 39. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
¹⁰What can you do with a work that is in the public domain?/pg. 40. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
¹¹Author credit and the public domain/pg. 40. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
¹²Ethical considerations/pg. 42. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.
¹³Indigenous cultural heritage/traditional cultural expressions/pg. 42. “Creative Commons Certificate for Educators, Academic Librarians and GLAM” by Creative Commons. CC BY 4.0.