Know Your Copyrights: A Review of Copyright and Fair Use for Digital Projects

By Jessica Martinez

From the beginning stages of research to the final steps of publishing, copyright rules are essential in understanding how to properly reproduce or link to sources in your own dissertation, article, website, or digital project. With this issue in mind and always at the forefront of student and faculty needs, the D-Lab hosted an informational workshop led by former copyright attorney and current U.C. Berkeley Library Scholarly Communication Officer, Rachael Samberg.

In a one-hour comprehensive workshop, Samberg outlined a workflow for how to approach copyright, fair use, and other law and policy issues when publishing a digital project or scholarship. A few highlights are summarized below, but for the workflow itself, you can check out her practical guide to Copyright & Digital Projects.

What is copyright?

Copyright is the exclusive right to make certain use of a material for a limited period of time.

Who has exclusive rights?

The author initially has the exclusive right to use their work for reproduction, distribution, derivative works, public performance and public display. But, it’s important to check where rights to a work currently lie because authors often assign part or all copyright to a company that publishes or distributes their work. The UC page “What do I own” explains more.

If the material is online already, can’t I just cite it and not have to think about these things?

You can and should cite your sources, but attribution is different from getting permission to reproduce the content in the first place. You need to consider copyright rules when actually displaying excerpts, images, or copies of a copyrighted work.

What can I publish in my own article or digital project?

1. Facts

Copyright protects original expression, but not facts. For instance, if you are creating scholarship and incorporating population statistics, you need to cite the statistics’ source according to professional standards, but you don’t need permission to use them because facts, such as the data and statistics listed in tables, are not subject to copyright protection to begin with.

2. Works in the Public Domain

Public domain indicates anything published by the U.S. Federal government, as well as works for which copyright protections have expired. The length of protection is determined by various factors. In general, you can expect the length of copyright protection to be at least the author’s life + 70 years from the author’s death.

3. Fair uses of copyrighted works

Depending on how you use the source, you may be able to reproduce copyrighted materials under the fair use doctrine. Fair use allows people to exercise the otherwise-exclusive rights of the copyright holder without having to seek the copyright holder’s permission. But, fair use applies only under certain conditions (described below), including when use is for purposes such as teaching, research, scholarship, reporting, criticism, or parody.

Check out the Copyright & Digital Projects guide for more complete information about fair use, but in brief, you can assess whether your treatment of a copyrighted work falls under fair use according to the following factors:

  • First and often most important to consider is your purpose for the use of a material. Uses in non-profit educational contexts are more likely to be fair use than works used for commercial purposes. The purpose of your use is also more likely to be fair if you transform the work from the intended use of the author (self-expression, art, or profit) to practice your own use (analysis or critique).
  • Consider the nature of the copyrighted work. Republishing factual work is more likely to be fair use than incorporating a creative, artistic work such as a musical composition.
  • Also, keep in mind how much of the original work you are using. Although there is no concrete percentage of a copyrighted piece that you are allowed or not allowed to reproduce, only use the amount of text or image necessary to illustrate your point.
  • The last point to consider is the effect that your distribution will have on the market for the original piece. If people will use your photo of a painting as a substitute for purchasing the original painting, for example, then this weighs against a finding that your use is fair.

Note: You can always provide a link to the original material on your website or digital project rather than republish the image or content itself. It is never a copyright violation to link to a lawfully published version of a copyrighted work.

How do I use copyrighted works when my use exceeds what is “fair”?

If you’d like to republish works that are still “in copyright” and have determined that your use exceeds fair use, you would need the copyright holder’s permission, which involves obtaining a license. You can find more information about locating copyright holders and obtaining licenses in the Copyright & Digital Projects guide.

Do I need to be concerned about any other legal rights when publishing online?

Yes, as indicated in the Copyright & Digital Projects guide, there are a few other legal issues to consider besides copyright. Two of the most important are:

1. Contracts you’ve entered into.

If you are using materials or compiling data from web sources, archives, or library databases, you may have consented to a terms of use agreement. The terms of these agreements shape what you are able to reproduce in your publication, so be sure to read them carefully. If you intend to make a use of the work that exceeds what these agreements would otherwise allow, you can try contacting the archive, website or database publisher to request broader publishing rights.

2. Privacy rights.

Copyrights protect copyright holders’ property rights in their works, while privacy rights protect the interests of people who are subjects of those works. Privacy rights most often arise in the scholarship context if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. Although privacy rights vary by state, in general if you publicly disclose private facts or paint someone in a false light, this could be considered a tort. You can address these concerns by limiting your use of such information to newsworthy matters (i.e. of public interest or concern) or getting the individual’s permission. Moreover, the right to enforce privacy rights last only as long as the individual is alive.

Although this may seem like a lot of rules, instructor Rachael Samberg was sure to remind participants that the guide’s workflow clearly walks you through what you can do. And understanding these rules will help you build your print and digital projects to their maximum potential in collaboration with and alongside the academic scholars and researchers in your field.

Specialist Rachael Samberg is available for individual consultation through the D-Lab, as well as guest lectures for classes and interested groups: Rachael Samberg Consultations. For a listing of D-Lab classes, which cover all topics relevant to Digital Humanities from methods to software trainings, visit D-Lab Events.

This workshop was taught as part of the Digital Publishing Series.

This post is cross posted at DH at Berkeley.