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Research Guides

Scholarly Publishing and Open Access: Copyright Basics

Overview of open access publishing and policies

What is Copyright?

Copyright is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” These works include literary, dramatic, musical, artistic, and certain other intellectual works. Copyright covers both published and unpublished works.  Copyright owners have exclusive rights to:

  • reproduce the work (photocopies, digital reproductions)
  • prepare derivative works based upon the work (translations, films based on books)
  • distribute copies (publishing a work)
  • perform the work publicly (for musical, literary, dramatic, choreographic and audiovisual works)
  • display the work publicly (for musical, literary, dramatic, choreographic pictorial, graphic, sculptural and audiovisual works)

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Copyright Mechanics

A work is protected by copyright the moment it is created and fixed in a tangible form. Registration is not required to get a copyright in your work though there are benefits for registering your copyright (https://www.copyright.gov/help/faq/faq-general.html#automatic).

Copyrights can be transferred.  Most authors transfer copyrights to publishers prior to publication – there are many reasons why you should carefully review these agreements (link here?).

Copyright now lasts for the life of the author plus 70 years or in the case of corporate authorship 95 years after publication.

When a copyright term expires the work becomes freely available for all to use. All works published before 1923 are in the public domain.  Some material published from 1923 on may also be in the public domain: (http://copyright.cornell.edu/resources/publicdomain.cfm).

Copyright or License?

At the UW many of the library resources that you use are copyrighted but they also may be controlled by licenses. Use of online journal articles provided by the Libraries is controlled by a license signed by the Libraries. These licenses may allow for more or less use than would be allowed by fair use (link). For example, some licenses allow for placement of a copy of journal article in Canvas whereas others only allow for links to the article.

To find license information in UW Libraries Search, find the citation for your online journal and click on ‘view license terms”. Use of works in the Libraries that are not online are typically controlled solely by copyright.

Fair Use Factors

Fair use is part of the copyright law that allows for some uses of copyrighted material without permission from the owner.  The law consists of four factors that need to be considered in any determination of fair use.   Fair use is not clearly defined so you need to do any analysis of the four factors and determine if most of the factors would allow for the use.

1) The purpose and character of the use, including whether such is of a commercial nature or is for nonprofit educational purposes.

Favoring Fair Use:  Nonprofit, teaching, scholarship, research, criticism, comment, news reporting, parody, personal use, restricted access, and/or transformative (changing the work for a new purpose)

Against Fair Use:    Commercial, entertainment, profitable, lack of attribution, providing access to a group or on the web

Discussion:  Use of published works is more likely to be fair than of nonpublished works. Use of other scholarly works (whose authors generally expect and hope to be quoted) is more likely to be fair than of other types of works. Use of nonfiction is more likely to be fair than of fiction. Critical commentary on fiction, however, is likely to be fair, so long as you aren't using more than you need.  Uses of content based on factual works are more favored than uses of highly creative works. Courts more recently have favored fair uses for purposes that are different from the original purpose of the work, so using a highly creative work could be a fair use if the purpose of the thesis or dissertation (educational) is different than the original intent of the work (for entertainment, for example).

2) The nature of the copyrighted work

Favoring Fair Use: Factual work, published

Against Fair Use: Unpublished, imaginative/highly creative, consumable work (workbooks, tests)

Discussion:  Use of published works is more likely to be fair than of nonpublished works. Use of other scholarly works (whose authors generally expect and hope to be quoted) is more likely to be fair than of other types of works. Use of nonfiction is more likely to be fair than of fiction. Critical commentary on fiction, however, is likely to be fair, so long as you aren't using more than you need.  Uses of content based on factual works are more favored than uses of highly creative works. Courts more recently have favored fair uses for purposes that are different from the original purpose of the work, so using a highly creative work could be a fair use if the purpose of the thesis or dissertation (educational) is different than the original intent of the work (for entertainment, for example).

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

Favoring Fair Use: small amount, amount appropriate to the favored educational use

Against Fair Use: large portion or the “heart” of a work.

Discussion:  Smaller amounts favor fair use.  This is easier to understand for text, but more difficult for images where the entire image often needs to be used.  Images such as graphs, maps or illustrations created for larger works such as a journal article may be considered a part of the article and thus you would be typically using a small part of the work.  Other images such as fine art are typically created as standalone works and not part of a larger work.

4) The effect of the use upon the potential market for or value of the copyrighted work.

Favoring Fair Use: Little or no impact on the market for the work, restricted access, one or a few copies made

Against Fair Use:  Significantly impacts sale of the work, replaces sales of the work, numerous copies made, accessible on the web

Discussion:  Generally theses and dissertations as non-commercial works will not impact the potential market for the copyrighted work.  This factor usually favors a fair use.

General Copyright Resources

United States Copyright Office

The Copyright Connection - University of Washington

Copyright Crash Course - University of Texas

Fair Use Checklist

If you find that two or more factors are not fair uses you should get permission for using the work.

Fair Use Checklist - Columbia University

UW Copyright and Course Materials

Step-by-Step Guide to Copyright Compliance for Course Materials

Frequently Asked Questions Concerning Course Materials

 

Getting Permission

If you see that fair use does not cover your use, you should obtain permission. First you should contact the owner or publisher directly for more information.

The Basics of Getting Permission - Stanford U

Organizations that Provide Permissions - U of Texas

Generic Sample Letter - U of Texas

Draft Letter for Obtaining Permission for Use of Material in an ETD - See pp. 3-4