Tag: public domain

Public Domain Day 2017

Today on January 1st, we celebrate Public Domain Day—the day each year where works enter the public domain for many countries around the world following the expiration of their term of copyright protection.

Public domain works are works free of copyright restrictions; works capable of being freely reproduced, shared, and built upon by users. As we have discussed on this blog before, a robust public domain supports the underlying purpose of U.S. copyright law to promote the progress of knowledge and learning.[1]

But while many counties will see new works added to the public domain this year, there will be no published works entering the public domain in the United States. In fact, no published works will be added to the public domain in the United States until 2019.

Why the delay? The U.S. Constitution states that copyright protections may exist only for “limited times,” but our copyright law has been amended several times to extend the length of the term of protection. Under our first federal copyright statute, copyright protection lasted for an initial term of 14 years, renewable for another 14 years. The current term of protection for copyrighted works is the lifetime of the author plus an additional 70 years. As a result of this extension of copyright and Congress’s decision to apply the extension of copyright protection retroactively to existing works, works published in the United States from 1923 to 1977 will remain protected for 95 years after their date of publication. This means that works we would normally expect to enter the public domain today (i.e., published works whose author died in 1946) will not enter the public domain until much later.

For more information on Public Domain Day and works entering the public domain in other countries this year, visit:

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] For this reason, authors today may chose to dedicate their work to the public domain through means such as the Creative Commons Public Domain Dedicator (CC0) tool rather than wait for the term of copyright protection to expire.

Copyright Roundup, Part II

In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.

Another fair use win for Google in most recent Google Books lawsuit.

Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project.[1]  As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.

On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.

The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.

The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.

Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.

Why does it matter?

Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.

In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.

The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.

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Copyright Roundup, Part I

The past few months have seen a number of interesting trials and developments in copyright law. We are providing a two-part Copyright Roundup to summarize those cases you may have missed and to let you know why they are important. In part I, we discuss embarrassing photos, cheerleading uniforms, and monkey selfies.

Blogger’s use of “aesthetically displeasing” photograph of Miami Heat investor still a fair use.

We first covered the facts in the Katz v. Chevaldina case in our blog post, “Copyright as an Instrument for Censorship?”, noting that Mr. Katz had filed an appeal of the district court’s finding that defendant Irina Chevaldina was entitled to summary judgement based on a fair use defense. On September 17, 2015, the 11th Circuit released their opinion, affirming the lower court’s decision. Analyzing the purpose and character of use, the court found every use of the Mr. Katz photo to be primarily educational, rather than commercial (educating others about the nefariousness of Mr. Katz) and use of the photo to be transformative (Chevaldina used the photo to ridicule and satirize Mr. Katz’s character). When considering the nature of the copyrighted work, the court found the previously published photo to be primarily a factual work (the photo was a candid shot and the court found no evidence to establish that the photographer attempted to “convey ideas, emotions, or influence Katz’s expression or pose”.[1] Finally, the use of the photo would not materially impair Katz’s incentive to publish the work—because Katz obtained ownership to prevent publication, there was no market for the original work.

Why does it matter? Katz’s conduct in initiating this lawsuit raised some big questions about the role of copyright law in censoring speech. In this case, Katz’s attempt to use copyright law as a shield against unwanted criticism ended up helping to strengthen Chevaldina’s fair use defense. The court’s central question under the fourth fair use factor was whether Chevaldina’s use of the photo would cause substantial economic harm that would impair Katz’s incentive to publish the photo. By obtaining the copyright in the photo and initiating a lawsuit to prevent publication of the photo, however, Katz demonstrated his desire to stop any use of and access to the photograph. The court held that Chevaldina’s use of the photo did not impair Katz’s incentive to publish the photo because Katz had no incentive to publish the photo and the likelihood of Katz changing his mind was “incredibly remote.”

The court also had an interesting analysis of the factual nature of the photograph. For a thoughtful discussion of this point, read Kevin Smith’s post, “Photography, Fair Use and Free Speech.”

Copyright protection for cheerleading uniforms: Varsity Brands v. Star Athletica

Varsity Spirit Corporation and Varsity Spirit Fashions and Supplies, Inc. (Varsity) designs and manufactures cheerleading apparel and accessories, having received copyright registrations for many of their design sketches. These designs included different combinations and arrangements of stripes, zigzags, chevron, and color blocks. The question on appeal was whether these elements were needed to make a cheerleading uniform or whether the design elements could exist separately from the uniform.

On August 19, 2015, the Sixth Circuit reversed the district court’s decision that Varsity’s designs were not physically or conceptually separable from the utilitarian function of the cheerleading uniform, holding that the graphic designs on Varsity’s cheerleading uniforms were separate and therefore copyrightable. The Court distinguished Varsity’s design from dress designs, which typically do not receive copyright protection.

Why does it matter? U.S. copyright does not protect useful articles. Useful articles are articles that have a utilitarian function beyond portraying the appearance of the article or conveying information. To the extent that a work includes a useful function, copyright will only protect those original elements of the work that can be independently separated from the useful function of the work.

Prior to this case, the Sixth Circuit (binding authority for Ohio’s federal district courts) had not adopted an approach for determining separability. After reviewing the approaches taken by other circuits, the Sixth Circuit decided to adopt a hybrid approach to determine if a particular design is a copyrightable pictorial, graphic, or sculptural work. To make this determination, the following questions must be asked:

  1. Is the design a pictorial, graphic, or sculptural work?
  2. If yes, is it a design of a useful article?
  3. If the design is of a useful article, what are the utilitarian aspects of the useful article?
  4. Can the viewer of the design identify pictorial, graphic, or sculptural features separately from the utilitarian aspects of the useful article?
  5. Finally, can the pictorial, graphic, or sculptural features of the design of the useful article exist independently of the utilitarian aspects of the useful article?

In answering these questions, the court identified a utilitarian function of a cheerleading uniform to “cover the body, wick away moisture, and withstand the rigors of athletic movements.”[2] The court found that the top and skirt of the uniform could still be identified as a cheerleading uniform even without stripes, chevrons, color blocks, or zigzags. Finally, the interchangeability of the designs indicates the graphic features can exist separately and independently from the utilitarian features of the uniform.

Can a monkey own a copyright?

The “Monkey Selfie” case has taken an additional twist with a new lawsuit brought on behalf of Naruto, the crested macaque. The monkey selfie case began in 2011 when photographer David Slater took a trip to Indonesia and left his camera unattended. A monkey (Naruto) used the camera to take a number of photos of himself grinning into the camera. One self-portrait was reproduced in publications around the world, eventually being added to Wikimedia Commons under the presumption that the work was in the public domain.[3] This prompted Mr. Slater to issue several DMCA takedown notices.

In 2014, Mr. Slater published a book containing copies of the Monkey Selfies, continuing to assert himself as copyright owner of the photographs. Later that year, the Copyright Office revised the Compendium of U.S. Copyright Office Practices, to clarify that the U.S. Copyright Office would not register works produced by animals, including, for example, “a photograph taken by a monkey.”[4]

On September 21, 2015, PETA filed a copyright lawsuit on behalf of Naruto against Mr. Slater, alleging that Mr. Slater falsely claimed to be the author of the photographs and made unauthorized copies of the works for commercial purposes. The lawsuit seeks an order to permit PETA to administer and protect Naruto’s rights in the photographs, declaring Naruto the author and copyright owner of the works.

Why does it matter? U.S. copyright law does not specify human authorship, though the U.S. Copyright Office has provided guidance on the issue through the Compendium of U.S. Copyright Office Practices. This case raises a number of interesting questions around how we define, or should define, “author.” If non-human authors are recognized as eligible copyright owners, should lines be drawn? Should the law, for example, provide exclusive rights to machines? And if the author can’t communicate their preferences, should we allow someone to speak on their behalf?

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We will continue our Copyright Roundup in part two, where we will look at some important fair use developments in the Google Books lawsuit and Stephanie Lenz’s “dancing baby” case against Universal Music and answer the question, “is Happy Birthday to You finally in the public domain?”

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

[1] Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).

[2] Varsity Brands, Inc. v. Star Athletica, LLC, No. 14-5237 (6th Cir. 2015).

[3] Wikimedia Commons refused to remove the photograph on the basis that Mr. Slater was not the author of the work. Without a human author, Wikimedia Commons argued, the work may not be protected by copyright.

[4] U.S. Copyright Office, Compendium of the U.S. Copyright Office Practices (3d ed. 2014) § 313.2.

How the public domain promotes scholarship: Engaging Columbus uses 1922 OSU thesis to map Columbus neighborhoods

Engaging Columbus, a collaboration between Ohio Wesleyan University, the Ohio Five Libraries, the City of Columbus Department of Technology / Geographic Information Systems, and other partners in central Ohio, has generated an interactive map of historic panoramic images from the City of Columbus using digitized photographs from a 1922 Ohio State University master’s thesis. The thesis, “An introduction to the economic and social geography of Columbus, Ohio” was written by Forest Ira Blanchard, OSU Department of Geography’s first graduate-level alumnus. The use of Mr. Blanchard’s photographs is a great example of the way digitization of works can spur new scholarship. Mr. Blanchard’s thesis photographs, published ninety-three years ago, provide important historical information on urban neighborhoods and development in Columbus, Ohio. As Engaging Columbus notes, “Blanchard’s photographs are remarkable for their depiction of typical streets, railroad corridors, and neighborhoods (rather than the more typical images of important buildings or events).” Engaging Columbus was able to freely use the valuable resource contributed by Mr. Blanchard to inform and shape its own work in geocoding historical photographs. The information they have generated is fully available for the benefit of the public and will in turn be used in a variety of ways.

Engaging Columbus was able to use Mr. Blanchard’s photographs without having to ask permission or pay fees to Mr. Blanchard’s estate. Original photographs such as the ones taken by Mr. Blanchard are subject to copyright protection, so how did Engaging Columbus use the photographs without permission? The answer comes from the law surrounding copyright duration and expiration. Mr. Blanchard’s photos were published prior to 1923; the photographs are in the public domain and therefore no longer protected by copyright.

What is the public domain?

In the United States, copyright law seeks “to promote the Progress of Science and useful Arts” by providing copyright owners with a number of exclusive rights over their works, for a limited time. By limiting the time in which a work may fall under copyright protection, the law seeks to find the right balance between incentivizing creators to create works and opening works up for the use and benefit of the public. In addition to establishing duration for copyright protection, the law also provides that certain works never receive copyright protection to begin with. The public domain includes works that fall into both of these categories: those in which the copyright has expired and those which never had copyright protection. Works in the public domain can be used by anyone in any way, without any permission required.

Copyright duration has been extended a number of times over the years, and calculating when exactly a work falls into the public domain due to expiration of its copyright can be tricky. The graphic can provide some general guidance. For more information on the public domain, visit our resources page.

When does a work fall within the public domain?

Four trapeziods, positioned sideways and all of a different color, depicting general guidelines for determining when a work falls into the public domain.Trapeziod 1 reads: Prior to 1923, most things published. Trapezoid 2 reads: 1923 to 1978, anything published without a copyright notice. Trapezoid 3 reads: 1978 to 1 March 1989, various conditions apply. Trapezoid 4 reads: On or after 1 March 1989, 70 yrs. after death of author, corporate or anonymous authorship: 95 yrs. from first publication or 120 yrs. from creation date, whichever first.

 

Digitization as a tool for new scholarship

Scholars around the world are creating tools, digital platforms, websites and documents to help society learn about ourselves. Many like Engaging Columbus are linking the arts, geography, history and sociology, among others, in new and innovative ways. By digitizing works in the public domain, we can provide access to previously unavailable historical, cultural and educational resources, which can have a positive impact on academia. Works such as Mr. Blanchard’s photographs may now reach new audiences and serve as the catalyst for creation and dissemination of new information and perspectives. Building upon and promoting of scholarship is at the heart of the mission of universities and libraries across the country, including The Ohio State University, to advance discovery and learning.

An introduction to the economic and social geography of Columbus, Ohio” is available for viewing in the Architecture Library at the Austin E. Knowlton School of Architecture and will soon be available online through the OhioLINK ETD Center.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Public Domain Day – 2015

Image is a four panel comic strip titled “Public Domain Day – 2015”. First panel: Two people in an office setting exclaim: “Happy Public Domain Day!!!” and a caption states: “Many countries welcome new works into the public domain each year as copyrights expire on January 1st.” Second panel: One of the people from the first panel says: “This year’s collection of works entering the public domain in some countries** includes notable works like the famous painting “The Scream” by Edvard Munch.” Third panel: Shows a map of the United States with a caption that says: “However, due to the copyright extension included in the 1976 Copyright Act, no new works will enter the public domain in the USA until 2019. Fourth Panel: The other person from the first panel is shown in a posture and setting reminiscent of the painting “The Scream.”

It’s that time again! We celebrate Public Domain Day each year as many countries welcome new works into their public domain when the copyrights  for those works expire on January 1st.

Read our blog post on the public domain and its cultural importance, and visit these sites around the Web for more coverage of Public Domain Day 2015 and the works entering the public domain for various countries around the world:

 

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Ohio artists remix the public domain: Q&A with Celia C. Peters, producer of Public Domain pop-up exhibit

As previously mentioned, a pop-up exhibit of new works by Ohio artists incorporating public domain materials will be on display October 11 at the Homeport Gallery in Columbus:

Event flyer: Public Domain art of the people, by the people. Ohio artists create from the public domain! Presented by Artistic Freedom Ltd.

PUBLIC DOMAIN
Pop-Up Exhibit & Reception
October 11, 2014
6pm-9pm
Homeport Gallery
779 East Long Street
Columbus, OH 43215
​(Adjacent to the Lincoln Theater)

We reached out to the exhibit’s founder and producer, Celia C. Peters, to learn more about the upcoming show and the relationship between artists, art, and the public domain.

Copyright Resources Center: What inspired you to curate an exhibit featuring artwork that incorporates public domain materials?

Celia C. Peters: I thought it would be an interesting creative challenge to present artists with: asking them to choose an element that speaks to them and use that to create something new. I like the idea of artists being inspired by the work of creators who came before them —- not to plagiarize, but to create something completely unique. I call it ‘recycling creativity.’

Also, before coming here, I lived on the East Coast for some years before (I’m still pretty new to Columbus) and I wanted to bring a bit of the vibe I’m used to — something a little different — to the Columbus art scene. This show felt like just the thing.

CRC: In your experience, why is the public domain important to artists and art in general?

Peters: The public domain is important to artists because it connects us to artists from the past and our shared drive to create; there’s something very powerful about that. It also removes the barrier of licensing fees from the equation. Depending on the nature of a project, an artist may need to access music, imagery or other creative elements from outside sources….and that can be cost prohibitive or challenging in terms of tracking down who actually owns the rights and paying to use the content. But, in the case of public domain content, though, it belongs to all of us!

CRC: You required participating artists to verify that the works they used are in the public domain; how did this process work?

Peters: We initially provided artists with links to a plethora of public domain material that they could use for their pieces. Artists in the show are providing me with links to sources that confirm that either the expired copyright of the content they’ve used was not renewed or that the work has been put into the public domain by the copyright owner.

CRC: Have you encountered any confusion or misconceptions from artists or your audience about what the public domain actually is? Has this exhibit helped you to educate people about the public domain? 

Peters: There were a couple of artists who (like many others in the general public) weren’t quite clear on the boundaries of copyright.  I think feel it’s very important for all of us as artists to know what protection our own work has as well as making sure we don’t violate anyone else’s intellectual property rights, in particular having access to something versus having permission to use it. I. So I try to shed light on copyright and also clarify where the public domain comes into play. And of course, having the support of the Copyright Resource Center was a great resource! [Editor’s Note: Thanks! It was our pleasure.] In talking to people about the show, I’ve found that lots of folks have heard the term ‘public domain,’ but they weren’t really sure what it means. That’s why I decided to include the definition on the show’s web site!

CRC: Can you share a few details about the new art that will be on display at this exhibit, and/or the public domain works that were incorporated in the art on display?

Peters: Well, I don’t want to give too much away…but I will say that Public Domain is a group show and that it features artists working in a mix of media: illustration, 3D art, painting, graphic art, video and even paper sculpture. There are very diverse aesthetics and very distinctive perspectives represented in the show, which is exactly what I’d hoped for. The artists have pulled from very different areas of the public domain for inspiration and, something else that I’m quite excited about: many of them chose to use public domain content in a different medium than the one their piece is in. I love that they’ve mixed it up. It’s all about imagination!

CRC: Thanks Celia– We look forward to the exhibit!

headshot photo of Celia C. Peters

Photo of Ms. Peters
© 2014 Celia C. Peters

Celia C. Peters is an avant-garde filmmaker creating compelling stories of authentically diverse characters. Peters is a member of New York Women in Film and Television and the Writers Guild of America. Her psychologically inspired, character-driven screenwriting has been both prize-winning and recognized in competition otherwise. She is the founder of Artistic Freedom Ltd., and her graphic art, photography and video work have shown at galleries in New York, Dallas, Detroit and London. She is completing post-production of her science fiction short film, Roxë15 and developing her sci-fi feature film project, Godspeed. See her full bio at ARTISTIC FREEDOM LTD.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

Identifying United States federal government documents in the public domain

According to the Office of Management and Budget, the United States government “is the largest single producer, collector, consumer and disseminator of information in the United States.”  United States copyright law places works of the U.S. federal government in the public domain in the United States upon creation.

Works in the public domain are not protected by copyright; either copyright has expired or the work was never protected by copyright.  Changes to copyright law have increasingly limited the amount of works entering the public domain in the United States, which increases the importance of U.S. government documents as a source of new public domain materials.

At first glance, 17 U.S.C. §105, the section of the United States Copyright law that places works of the U.S. federal government in the public domain seems straightforward: “Copyright protection under this title is not available for any work of the United States Government”; but, as with many aspects of this law, things are rarely as simple as they seem.

Online Sources of U.S. Government Materials

As more United States government works become available digitally, many are conveniently made available online for public use. As always, just because a work is publicly available (e.g. online) it is not necessarily in the public domain.  Many websites providing access to U.S. government works also provide rights and permissions information that may indicate whether the works are in the public domain.

A few resources for finding U.S. government public domain materials are listed below; however, as always, be sure to check the copyright information for any specific item you want to use because many of these sites also contain materials that are not in the public domain.

I.   What the law says

17 U.S.C. §105 places “any work of the United States Government” in the public domain.  The law defines “work of the United States Government” in 17 U.S.C. §101 as (1) a work prepared by “an officer or employee of the United States Government” (2) “as part of that person’s official duties.”  A United States government work does not enter the public domain unless it satisfies both parts of this definition.

Section 105 is subject to several additional restrictions. It only applies to United States federal government works – it does not place state, local or foreign government works in the public domain.  And §105 only places U.S. government works into the public domain within the United States. Other countries are subject to their own copyright laws, which may provide copyright protection to United States government works in those countries.  Nor does §105 mean that all U.S. government works are available for use within the United States without restriction.  Even if a work meets the §105 requirements for entering the public domain, other limitations may apply such as an individual’s publicity or privacy rights, trademark limitations, Freedom of Information Act restrictions, or a prohibition against using information the materials to imply a government endorsement.

II.   Exploring the Definition

Even though §105 places many U.S. government works in the public domain, many other U.S. government works do not meet the statutory definition “work of the United States government” and receive copyright protection.  How could a United States government work fail to satisfy this definition?

Not all government works are created by employees or officials of the government.  If someone other than a U.S. government officer or employee, like a contractor, prepared a work for the agency, the work would not enter the public domain under §105.

Another situation where a possible U.S. government work does not enter the public domain under §105 occurs when a U.S. government official or employee prepares a work outside of their official duties.  In that instance, the U.S. government official or employee receives the same copyright protection as anyone else, since §105 only applies to those works prepared by a government officer or employee as part of their official duties.

For example, a U.S. Admiral received copyright protection for a speech he prepared on his own time while employed by the government because “the writing and delivery of the speeches formed no part of Admiral Rickover’s official duties and that the speeches are the Admiral’s private property which he was entitled to copyright” Public Affairs Associates, Inc. v. Rickover, 268 F.Supp. 444, 450 (1967).  Section 105 also does not apply to “personal narratives written by public servants after they leave Government service” Harper & Row Publishers v. Nation Enterprises, 471 U.S. 559, fn. 6 (1985).

III.   Applying the Definition

As a practical matter, it can be difficult to tell whether a United States government work falls within §105 and therefore belongs to the public domain.  Some documents do explicitly indicate whether the contents are in the public domain.  Many do not.

If a document does not indicate whether it is in the public domain, someone wanting to use the document in a way that might implicate copyright must try to make an informed decision about whether or not the document is in the public domain.  The following bullet points provide suggestions on what to look for and things to think about when investigating the copyright status of a U.S. government document.

  • Look for a copyright notice on the work. A notice indicates that someone is claiming a copyright in the work, whether the copyright is claimed by the government or a third party.  Section 105 does not prohibit the U.S. government from holding a copyright in the United States.  Although §105 places items created by the government in the public domain, the law also permits the United States government to hold copyrights “transferred to it by assignment, bequest, or otherwise” (17 U.S.C. §105).
  • Look for a statement indicating that the work is in the public domain (as seen in the image below), but keep in mind that the government is not required to put a public domain notice on works, and not all works with public domain status under §105 will display a notice.

    Photograph of a public domain notice on a US federal government publication: Public Domain Notice: All material appearing in this publication is in the public domain and may be reproduced or copied without permission from SAMHSA. Citation of the source is appreciated. However, this publication may not be reproduced or distributed for a fee without the specific, written authorization of the Office of Communications, SAMHSA, HHS.

    Center for Substance Abuse Prevention (U.S.), & ICF International (Firm). (2010). Focus on prevention. Rockville, MD: U.S. Dept. of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Substance Abuse Prevention.

  • Are the authors identified as employees or staff of the government agency? This may be an indication that the work qualifies as a “work of the United States Government” and belongs to the public domain.
  • Look for information indicating that the author(s) was not a government employee or official. For example, works prepared by a contractor, commissioned by the agency from another organization, or created by some other third party. Author affiliations and biographies may provide additional clues.If the document provides the authors’ names, but not their affiliation(s), researching the author(s) may reveal whether they work for the government.
  • Contact the government agency and ask for additional information about the document.  Even if they are not able or willing to tell you whether it is in the public domain, they may be able to provide additional information about the creation of the document that will help you determine its status.

IV.   Conclusion

Government information is a valuable national resource.  Section 105 places U.S. government works in the public domain to facilitate use of this important resource.   If users cannot clearly determine that a U.S. government document belongs in the public domain, they may have to treat the work as protected by copyright – which seems contrary to the reason Congress placed such works in the public domain.

Ideally, U.S government agencies would clearly indicate whether a work belongs in the public domain. Historically, this has not been the case; however as more works become available digitally, U.S. government agencies may increasingly provide rights information indicating whether the works fall within the public domain.

Despite the challenges involved in determining the copyright status of some U.S. government works, it is possible to identify many U.S. government works as part of the public domain.  Although it may not be as simple as it should be to identify public domain “work[s] of the United States Government”, the U.S. government remains an important source of public domain material.

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Marc Jaffy is a graduate of the Kent State University School of Library and Information Science and former practicum student at the OSU Libraries Copyright Resources Center 

Public Domain Day: Another reason to celebrate the New Year

For many individuals, a new year represents a fresh start. January 1st also signifies a new beginning for numerous creative and scholarly works around the world. Public Domain Day commemorates the occasion as copyright expires for a new batch of works and ushers them into the public domain. The Tale of Little Pig Robinson by beloved children’s author Beatrix Potter is just one of the items entering the public domain in 2014 for many countries.

Release some of your own works from copyright in honor of Public Domain Day

If you have ever taken a photo, written a story, or recorded a video you hold the copyright to that work.

To dedicate a work to the public domain, you may apply the Creative Commons CC0 license to waive all copyrights.

Images may also be uploaded to Wikimedia Commons under a public domain license.

If you hold the copyright to a work archived by HathiTrust, you may grant permission to make the full text publicly available and/or dedicate the work to the public domain.

This is indeed cause for celebration. Once a work enters the public domain, anyone may freely copy, distribute, adapt, remix, translate or otherwise use the material without permission or other limitations. The annual influx of public domain material results in a trove of restriction-free source material for artists, writers, musicians, and other creators. Jane Austen’s novels, for example, are all in the public domain and have been adapted numerous times for film and television.

‘Public domain’ may be a familiar term, but misconceptions abound regarding its true meaning. For instance, works that are widely available to the public, such as images, videos, and text on the Web, are not necessarily also in the public domain.

In the United States, copyright protection extends instantly and automatically to new works created since March 1, 1989. In order to qualify for copyright, a work must require at least a minimum amount of creativity to produce and it needs to exist in some tangible format (for example: written down, coded into HTML, saved to a hard drive, or sculpted in clay). Therefore, most material on the Web is actually protected by copyright whether or not a copyright notice is present.

The public domain actually consists of items that either were never covered by copyright law or their copyright protection has expired. For example, most works created by employees of the U.S. federal government in the scope of their employment enter the public domain immediately. Those items initially protected by copyright enter the public domain once the copyright term expires.

Copyright duration varies from country to country, so works will not enter the public domain at the same time for everyone. For example, Canada has a copyright term of the author’s lifetime plus 50 years, while many European countries have a copyright term of the author’s lifetime plus 70 years.

In the United States, the Copyright Term Extension Act of 1988 increased copyright duration to the author’s lifetime plus 70 years, after which the work enters the public domain. This legislation also extended copyright terms for many earlier works, with the result that no published works will enter the public domain in the United States until 2019.

Creators may also voluntarily remove copyright at any time by dedicating a work to the public domain. Determining the copyright term for works published under earlier versions of U.S. law can be complicated, but Peter Hirtle’s chart “Copyright Term and the Public Domain in the United States” can help resolve many questions.

Find works in the public domain

Many sites collect public domain material. Here are a few places you can find items in the public domain (note: some also contain copyrighted materials).

HathiTrust

Internet Archive

Project Gutenberg

Wikimedia Commons

Public Domain Music

For a more comprehensive list, please see Columbia University’s list of public domain resources.

Although copyright law in the United States has changed over time, the public domain remains indispensable to accomplishing the stated purpose of copyright: to promote the progress of science and the arts. Copyright law grants creators exclusive rights for a limited time to control how their work is used and distributed. While this protection encourages creativity and innovation by providing an opportunity for authors to profit from their work, the fact that copyright eventually expires is equally important to creative culture.

Creators from all disciplines take inspiration from existing works and a continuously replenished public domain provides a rich, unfettered source of materials to draw upon. Residents of the United States can look forward to 2019 when the annual cycle of works entering the public domain will resume. Until then, we may only celebrate vicariously the many treasures joining the public domain on January 1st for the rest of the world.

Along with the Beatrix Potter story mentioned earlier, the public domain in various countries welcomes creations from other authors, artists, musicians, and notable figures such as George Washington Carver, Sophie Taeuber-Arp, Fats Waller, and Nikola Tesla in 2014.

Visit these sites around the Web for more coverage of Public Domain Day 2014 and works entering the public domain:

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Copyright Considerations with Electronic Learning

Electronic learning consists of a number of different educational models that allow instructors to deliver instructional content through electronic means. These models include distance learning classes offered through educational institutions (online classes), university course management systems such as OSU’s Carmen, massive open online courses (MOOCs) such as Coursera or edX, and other open educational tools.

These models all function as learning tools, but their structural differences mean that various copyright considerations are raised. Here are some differences to keep in mind:

  • Open v. Closed Structure: Many distance learning classes and course management systems are closed structure, meaning that they are typically limited to a specific number of identifiable enrolled students. MOOCs operate under an open system, meaning a potentially unlimited number of students where enrollment may not be required.
  • Profit v. Non-Profit: Universities and other educational institutes that offer distance learning classes are typically non-profit entities, though for-profit institutes also exist. Two of the largest MOOC providers, Coursera and Udacity are for-profit entities.
  • Instructor Interaction and Student Participation: Like traditional classrooms, distance learning classes include student-instructor and student-student interaction, where individual grading may be based on electronically submitted material or proctored exams. For MOOCs, student-instructor participation may be limited, and students may play a larger role in orchestrating study groups and grading other classmates.
  • Cost: Students enrolled in distance learning classes must pay the tuition required by the provider of the course (ie. the university). MOOCs developed as a free resource and the majority of courses continue to be offered for free.
  • Academic Credit: Students who have completed distance learning courses may elect to receive academic credit for their work. Traditionally, MOOCs did not offer academic credit, however, some universities have been working to offer academic credit or provide the student with verified certificates.

Now that you are familiar with some of the differences in electronic learning models, we can start to look at the copyright issues these differences raise.

1.         Who owns the copyright in the online course? When an original work of authorship is created, such as the development of a course lesson plan or scholarly article, the author of the work holds a copyright in the work. When the author is an employee, however, it may be the case that the employer (the university) is actually considered the author of the work. This is known as the work-for-hire exception.

The general culture surrounding educational institutions is that works of scholarship, unlike lesson plans or other course work materials remain the intellectual property of the instructor. Though some institutions consider scholarly works to be a part of the general course work of the instructor, for clarity, this issue should be discussed so everyone understands the status of each work being produced.

In addition, educational institutions that work with MOOC providers have to understand the terms and conditions of their agreement. MOOC providers may use a Creative Commons licensing scheme, claim ownership of all content that is uploaded (consequently prohibiting copying and distribution of the course work), or something in-between. All terms and conditions should be reviewed to understand the full extent of the restrictions on copyright ownership.

2.          What material can be included in an online course? An instructor or creator of an online course should first consider including their own material to avoid copyright concerns. If the material has been used in the past, for example in the context of prior teachings or publications, the instructor should first confirm that they retain the copyright in the work. In addition, an instructor may include material through the following means:

  • § 110: Federal copyright law allows for some protected materials to be used by non-profit educational institutions, depending on a number of factors. Within a traditional classroom, instructors may display or perform a lawfully made copy of a work, within the context of face-to face teaching, and be protected under § 110(1).  For online courses, use of material is more easily handled through the TEACH ACT (§ 110(2)) (For a checklist of the requirements for protection under § 110(2) click here).  It is not clear whether a university that is non-profit on its own can lose that status when partnering with a for-profit MOOC to provide online classes. But even for non-profit MOOCs, statutory protection under § 110(1) or § 110(2) may be difficult because MOOCs do not limit use of material to a specified number of enrolled students, making limitation on the transmission of material difficult.
  • Fair Use: For-profit MOOCs may still be able to rely on the defense of fair use (§ 107) in the event that copyright issues arise. For a further explanation on fair use factors click here. The material being used in online courses is educational material made available for the purposes of teaching, an example cited within § 107. This may balance out the commercial nature of MOOCs. It is also important to consider the character of the use. Courts have been more inclined to find that the first factor of fair use (purpose and character) is fair when the use of the material is transformative. If an instructor is providing material for the purpose of facilitating discussion/criticism/analysis, then such a use is more likely to be determined to be transformative. It is also important to consider how much of the work is being used. If instructors limit their use to just the portions of the material that is needed, this will help the instructor/university in their fair use argument. Lastly, availability and feasibility of licensing of the material should be considered. If it is easy to obtain a license, and to do so at a fair price, this can weaken a fair use defense.
  • Public Domain: Instructors can include works from the public domain within the course material, or works that are otherwise under an open license.
  • Securing Permission: An instructor can secure permission to use the work from the copyright holder. This permission may often take the form of a licensing fee, which may be at odds with the free structure of many MOOCs.

In addition to considering which materials can be made available to individuals as part of their participation in the course, an instructor or course creator should also consider the issues that may arise in assigning outside reading materials. For traditional face-to-face teaching models, as well as distance learning classes, this usually means purchasing a textbook or other course material through the university book store or copy center. The underlying goal of MOOCs, however, is to provide a free experience to participants.

Many of the same options mentioned above for including material within the course are also options to consider for providing access to materials outside of the course plan: using Creative Commons works or works in the public domain, negotiating new licenses or otherwise obtaining permission from copyright holders for as low of a price as possible, arguing statutory protection under § 110(2), or relying on fair use.

3.         What can participants do with the material? Under the TEACH ACT students may view but not download or otherwise copy materials, but some use of the material may be protected under fair use. Once again, this sort of limitation can pose problems for open courses. If the course material being used is the instructor’s own work, with no limitations placed on further use, or if the work is from the public domain, this issue may be avoided. As with distance learning classes, participants may also wish to rely on fair use, so long as their use is non-commercial and otherwise limited in scope. Lastly, institutions participating in MOOCs may wish to negotiate licensing arrangements with copyright holders in order to allow participants to make copies of the work.

As more educational institutions provide electronic learning options, it is important to be aware of the advantages, limitations and uncertainties that can surround e-learning. Educational institutions and instructors should be conscious of the difference in existing e-learning structures, and how the chosen structure helps to dictate how copyrighted works may be used inside and outside of the electronic classroom. For further information or assistance with questions, please visit the Copyright Resources Center or email libcopyright@osu.edu.


Maria Scheid is a legal intern at the Copyright Resources Center at OSU Libraries and is currently a student at The Ohio State University Moritz College of Law.