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Copyright Permissions

Designed for HLS Faculty Assistants.

Introduction

What is Copyright?

Copyright is a form of legal protection given to authors (or creators) of original works that are fixed in a tangible medium of expression.

The purpose of copyright is to encourage creativity by protecting works for a limited period of time so that only their creator(s) may benefit from them.

The expression of an idea is protected, not the idea itself.

 

Works that may be copyrighted include:

  • Literary works,
  • Musical works,
  • Dramatic works,
  • Choreographic works,
  • Sculptural works,
  • Videos,
  • Sound recording, etc.

The owner of a copyright has the exclusive right to:

  • Make copies of the work;
  • Create derivative works based on the original work;
  • Distribute copies of the work to the public by sale (or other transfer of ownership), rental, or lending;
  • Perform the work publicly (either by recreating it or playing a recording); and
  • Display the work publicly;

Things that are not copyrightable include:

  • Scientific findings or facts
    • HOWEVER, their presentation (in a table, database, or a text) may be protected by copyright, or may be contractually protected by subscriptions or licensing.
  • Ideas and theories (for the policy reason of wanting them to be shared and developed)
    • HOWEVER, there may be ethical concerns or other legal restrictions (e.g., laws regarding patents or trade secrets may apply).
  • Works by the U.S. government (includes reports written by members of Congress or federal agencies as part of their official duties, statutes, regulations, and court decisions, etc.)
    • HOWEVER, something written by an independent contractor or other non-government official (even if funded by the federal government) may be eligible for copyright protection.
    • ALSO NOTE, this exemption only applies to the federal government, so works created by state or local governments may be protected by copyright unless such rights have been waived by statute.
  • Slogans or short phrases
    • HOWEVER, trademark protection may apply
If something is not protected by copyright, it is in the Public Domain and may be used by anyone without restriction.

 

How Long Does Copyright Protection Last?

The duration of copyright protection is important because once it ends, the work enters the Public Domain and becomes freely available.

Unfortunately, copyright duration is not always easy to determine.

  • Current Law: Copyright generally lasts throughout the author/creator's life + 70 additional years (previously applicable formalities have been removed).
    • HOWEVER, with a "work-for-hire," the creator is the employer (i.e., not a living person) so the protection is for the shorter of 120 years from the date of creation OR 95 years from its publication.
  • Works Created Prior to 1978: The length of copyright protection depends on compliance with the formalities of providing:
    • Notice: Designed to inform the user of who owns the copyright (e.g., ©). If no proper notice, the work entered the public domain upon publication.
    • Registration: Creates a public record of your copyright at the U.S. Copyright Office. If not properly registered, the work entered the public domain upon publication.
    • Renewal: After proper notice and registration, copyright protection would run for an initial period of 28 years; if properly renewed, an additional period of copyright protection would apply.
    • NOTE: The length of the renewal period of copyright changed over the years so no single length applies.
    • NOTE ALSO: International copyright law generally did not require such formalities. This resulted in considerable confusion and various attempts to restore copyright protection to non-US authors who accidently lost it under US laws.
Yes, it's confusing. Just remember: if a work was created after 1978, copyright protection happens automatically and lasts for a long time. Assume a recent work is protected unless the copyright holder tells you otherwise.

 

Some online resources you may find useful:

Copyright Permissions are NOT Needed for...

Library Materials Placed on Reserve

Library books can be placed on Reserve without any copyright concerns.

The First Sale Doctrine allows a buyer (e.g., the library) to do what it wants with a physical copy once it has been purchased.

 

NOTE: E-resources are different as they are typically leased (rather than sold) and likely have licensing restrictions that restrict the number of simultaneous users.

Materials Available Via a Harvard Database

If you can find the materials using one of Harvard's subscribed databases, you can link to the materials without having to obtain additional permission. Harvard's subscription gives faculty members the right to use the materials in their classes.

NOTE: With electronic resources, sometimes our license agreement with a vendor will prohibit certain uses (e.g., electronic course packs are OK but not printed course packs). This information is often available in the HOLLIS record for a resource.

 

 

Linking is good! It improves accessibility, avoids the need to pay for permission, and helps the library track how the subscription database is being used.

 

FRIDA (Faculty Research and Information Delivery Assistance) can help you determine if a resource is available via a Harvard database.

You can email them at: FRIDA@law.harvard.edu.

Materials Available Via Open Access

Many universities (including Harvard) have requirements -- or strongly encourage -- their faculty and other scholars to make their scholarship available to the public (Open Access). Often the manuscripts are accepted manuscripts that have been peer-reviewed but not yet published in an academic journal. Many universities have digital repositories to store the papers and make them discoverable via Google or Google Scholar.

HOWEVER, there can be some problems using an Open Access version. Although the content may be nearly identical to the final, published version it will not actually be the final, published version.

  • There could be some content changes, and
  • The Open Access versions will likely lack the publishing journal's pagination (needed for proper citation).
Depending on the desired use, Open Access may be an acceptable option.

 

Some Open Access resources:

Materials in the Public Domain

The Public Domain refers to content that is NOT protected by copyright law. Either it never was protected or the protection has ended (whether due to the passage of time or failure to comply with a requirement).

For example (not comprehensive):

  • Works produced by the U.S. federal government. For example, federal laws, regulations, and publications created by the U.S, government do not have copyright protection.
  • Works where the copyright period has expired. For example, in the U.S. the copyright for a book expires 70 years after the death of the author. After that, the book is in the public domain. All works published in the U.S. before January 1, 1924 have entered the public domain.
  • Works that did not have a proper copyright notice (applies to works created in the U.S. on March 1, 1989 or earlier). The requirement of a copyright notice for copyright protection was a technical requirement that is no longer required. Nevertheless, it can prevent an earlier work from enjoying copyright protection.
  • Works that are not fixed in a tangible form. The work must be written or recorded in a way that captures it in a sufficiently permanent way that it can be reproduced. For example, a speech that has been written down and not simply spoken.
  • Work that has some originality (isn't just factual). For example, a list of ingredients or table of contents is not copyrightable but a written recipe that creatively explains or depicts how a desert is made may be copyrightable.
Works in the Public Domain may be used freely, without obtaining permission from or paying compensation to the copyright owner.

 

Materials Used Pursuant to the Doctrine of Fair Use

The doctrine of Fair Use grants a limited right to use materials otherwise protected by copyright. While this can be extremely helpful, it should not be the first thing to consider. 

FIRST: Determine if the Library already has access to the resource as part of its collection, either as a hardcopy or through one of the many databases we subscribe to. If so, linking to an e-resource or putting a physical book on Reserve is permitted.

SECOND: If it is not already part of our collection, try to determine if it is likely to be subject to copyright protection. For example, if it was created by the U.S. government or is in the Public Domain, it may be used without restriction. HOWEVER, this may not be easy to figure out.

THIRD: If the work is available from an Open Access source, links to that version are permissible. HOWEVER, it may not be the final, published version, which can cause problems (e.g., there may be some changes in the final version, and proper citation may be difficult as the article will likely be missing the journal's official pagination).

Warning: Fair Use can be rather "squishy."

 

Fair Use allows limited use of an otherwise copyrighted work.

It requires a balancing of 4 Factors:

  1. The purpose or character of the use:
    • Educational/research/scholarship uses tend to be preferred (e.g., an excerpt is used to illustrate a point during a class to support a new conclusion).
    • Commercial use generally receives less protection.
  2. The nature of the work:
    • Is the work factual or a creative endeavor (e.g., fiction)?
    • Creative works generally receive more protection.
  3. The amount of the work used:
    • Only the amount necessary should be used and
    • That portion should not get to the heart of the original work ("the butler did it!").
  4. The effect on the potential market:
    • ​​If the secondary use reduces the market for the original, there will likely be less protection for it (e.g., does it replace a potential sale?).
    • The market for licenses/permissions is also considered (e.g., can permission be obtained through CCC?)

The relative strength of the 4 Factors changes over time. Transformative uses that use the original work to create something new are currently favored.

Harvard's Office for Scholarly Communication has prepared a very helpful infographic to help explain Fair Use.

The Fair Use Doctrine should be used prudently and should not be the first justification for using a work without permission. If Steps #1 - 3 do not apply, it may be better to manage risks by getting copyright permissions rather than rely on the Fair Use Doctrine.

 

When are Copyright Permissions Needed?

What are Copyright Permissions?

First, what are copyright permissions?

Copyright law gives the creators of certain original works a number of exclusive rights relating to that work for a period of time. If someone else wants to use a protected work (e.g., make a copy of it), they must receive permission from the copyright owner and often must compensate the copyright owner.

These rules are designed to encourage future creativity by giving the copyright owner a monopoly over their creation for a period of time.

 

When Do I Need to Get Permission?

Copyright permission is needed if the desired work is protected by copyright law. A general line of inquiry is:

  1. Do we already have the right to use it? If the material is part of the Library's collection, it may be used without seeking additional permission (and without going through a copyright analysis).
↑↑↑ The easiest solution! ↑↑↑

 

  1. Is the material is the Public Domain? If so, then there is no copyright protection.
    • Perhaps it was never intended to be covered by copyright (e.g., created by the federal government).
    • Or maybe it was covered, but copyright protection lapsed for some reason (e.g., failure to properly renew).
    • Or maybe it could have been covered, but a formal requirement for copyright protection is missing (e.g., failure to properly register or give notice).
  2. Has permission already been granted?
    • Some copyright owners want to encourage others to use their creations. 
    • The original work may state this outright (it never hurts to check!) or include a Creative Commons license that allows others to use it for certain purposes (e.g., for noncommercial uses with attribution to the author).

NOTE: The Creative Commons logo is two "C's" inside a circle. Creative Commons logo  Follow this link to see examples of the different types of Creative Commons licenses a creator may choose to grant future users of their work.

  1. If None of the Above, is Fair Use a possibility?
    • If only a small amount is to be incorporated into a classroom presentation (or a small excerpt quoted in a scholarly work), Fair Use may be an option. 
    • However, the cost of getting permission may be low enough that it is worth getting to have the peace of mind.
  2. If Still None of the Above - then you should try to get permission.
Harvard University's Office of the General Counsel has created a Guide to help faculty apply the 4 Factor Test needed to justify Fair Use. NOTE: Pages 16-20 of the PDF version specifically address the common question of whether Fair Use applies to using third-party materials on a course website (e.g., Canvas). 

 

Permission Strategies

Try to think creatively. Look at both the desired work and the desired use. Are there any alternatives?

  • There might be an alternative work that does not require permission (e.g., a similar photograph that is clearly in the Public Domain).
  • Or perhaps the desired use can be scaled back, making permission unnecessary (e.g., relying on Fair Use instead) or easier to obtain (e.g., if the copyright owner was located by did not want to grant permission for the initial use)..

How do I Get Copyright Permissions?

Copyright Clearance Center

Many copyright permissions can be obtained from the Copyright Clearance Center (CCC). Step-by-step instructions can be found on the Faculty Support Services webpage Copyright for Course Materials. Specifically:

Using the CCC can help expedite the permission process for many works, including books, magazines, journal articles, newsletters, dissertations, etc. Permission fees are paid directly to CCC and CCC will forward them onto the copyright owners.

There are other collective licensing agencies. For music, try:

  • ASCAP (The American Society of Composers, Authors, and Publishers) and
  • BMI (Broadcast Music, Inc.)

Other Options

If you are not able to obtain permission through the Copyright Clearance Center (or similar service), you will need to contact the copyright holder (i.e., the person or entity that currently holds the rights to the material).

Since this may not be a straight-forward process, you should make sure permissions are required.

Refer to the sections "Copyright Permissions are NOT Needed if...." and "When are Copyright Permissions Needed?" above.

There may not be an easy way to track down the copyright owner.

 

You should start with the author/creator of the work. There may be a copyright notice that identifies the original copyright owner. Also, the copyright may have been registered at the U.S. Copyright Office.

HOWEVER:

  • If the author/creator produced the work as part of their employment (i.e., a "work made for hire"), their employer may be the owner.
  • Original copyrights are often transferred. For example:
    • The copyright for academic articles or books may be transferred to the publisher as part of the publication process.
    • A company with copyrights may have its assets (including copyrights) sold to another company.
    • An author may have died and the copyright was passed on to others as part of the author's estate.
  • Transferred copyrights may sometimes be reclaimed and go back to the original author/creator.

Strategies for Requesting Permission

Requesting permission can be a balancing act. Depending on the intended use, you may want to make a broad request that will give you flexibility. But then the copyright owner may have specific concerns and ask for additional detail and/or require their own limitations or conditions. Finding a "just right" balance can help save time and not unnecessarily restrict you.

Often the amount copyright owners will charge to use their work depends on how it will be used. Important information they will want to know includes:

  • Exactly how much of their work do you want to use?
  • When and for how long do you want to use it?
  • How many people will have access to it?
  • Why do you want to use it?
  • How do you plan to use it? 

Dead Ends

Dead ends happen. There isn't always an easy answer. Maybe you can't locate or figure out who owns the copyright ("orphans"). Or the owner never responded to your request for permission. Or the compensation they wanted is prohibitive.

Reaching a dead end is a good time to step back and rethink your strategy.
  • If there isn't a clear copyright owner, then perhaps your intended use will not have much impact on the commercial market for the work and Fair Use starts looking more promising.
  • Is there an alternative work you can use?
  • Can you scale back the planned use of the work to reduce the cost of obtaining permission?
  • Ask for help!

 

Why Should I Bother?

What's the Worse that Can Happen?

  • A court could issue an injunction to prevent continued, unlawful use of the work (and impound copies of any existing, infringing works).
  • The copyright owner may be entitled to compensation for any losses they have suffered (or any profits that were made).
    • Or could be entitled to statutory damages of up to $30,000 per work infringed (in lieu of actual damages or profits).
  • The copyright owner could also be entitled to have their attorney fees (and other costs of litigation) reimburse
These costs can add up quickly!

 

NOTE: The above is the Worse-Case-Scenario. Statutory damages and attorney fees are generally only available if the copyright was registered. However, in the case of willful infringements, the statutory damages can jump to $150,000 per work infringed and could also include criminal penalties (e.g., monetary fines and prison).

NOTE ALSO: Statutory damages may be avoided for educators and librarians if they were operating within the scope of their employment and reasonably believed the copies being made were Fair Use.

Acting in an informed and good faith manner is crucial!

Getting Help

There are many "Gray Areas"

It's not you!

What once may have been (or sounded like) a clear rule can quickly become murky when applied to new technologies and evolving new uses. If you have an unusual request or are having difficulty with a situation you thought should have an "easy answer," reach out for assistance.

FRIDA

FRIDA (Faculty Research & Information Delivery Assistance) can help you determine if an article is available from one of Harvard's subscription databases and provide you with a link to the article.

Send an email to FRIDA.

Copyright First Responders

Copyright First Responders are librarians located across the Harvard Libraries who have specialized training in copyright law and policy. If they do not have an immediate answer, they will consult with each other and find an answer.

 

List of Resources (including those referenced previously in the Guide)

Here's a list of resources you may find helpful, many of them appeared previously in this Guide. To make them easier to find, they are listed again (alphabetically) below.

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