Open Access and Copyright

Copyright is a form of intellectual property that safeguards original creations as soon as they are expressed in a tangible medium. U.S. copyright law provides copyright owners with the exclusive rights to:

• Reproduce the work
• Create derivatives based on the original work
• Distribute copies of the work
• Perform the work publicly
• Display the work publicly

Since copyright law was first enacted in England in 1710, it has grown and expanded to cover near all original works. At its core, copyright exists for 2 purposes:

• Utilitarian: to incentivize creators via the social benefits that will come from those works, including commercial gains.
• Author’s rights: to recognize and protect the deep connection authors have with their creative works. This rationale is founded upon moral rights, which ensure attribution for authors and preserve the integrity of creative works.

Copyright only protects the expression of ideas, not the ideas themselves, nor procedures, methods, systems, processes, concepts, principles, or discoveries.

Intellectual property refers to the legally established rights that grant creators the authority to control and restrict the use of their original works by others. Copyright is one form of intellectual property, among several others including patents, trademarks and trade secrets.

• Trademark Law: Trademark law in the United States protects symbols, names, logos, and other identifiers used to distinguish goods or services in commerce. Trademark protection helps prevent consumer confusion and grants the owner exclusive rights to use the mark in connection with specific goods or services.
• Patents: A patent is a legal right granted by the U.S. Patent and Trademark Office (USPTO) that gives an inventor exclusive rights to make, use, sell, or distribute an invention for a limited period. Patents protect novel, useful, and non-obvious inventions, including processes, machines, and compositions of matter.
• Trade Secrets: Trade secrets refer to confidential business information—such as formulas, processes, designs, or methods—that provide a competitive advantage. Unlike patents, trade secrets are protected indefinitely under the Defend Trade Secrets Act (DTSA) and state laws, as long as they remain secret and reasonable efforts are made to maintain their confidentiality.

In the United States, copyright protects original works of authorship that are fixed in a tangible medium of expression. This includes literary, artistic, musical, and certain other creative works. Specifically, copyright protection covers:

• Literary works (books, articles, poetry, computer code)
• Musical works (songs, compositions, including lyrics)
• Dramatic works (plays, scripts)
• Choreographic works (dance routines, if recorded or notated)
• Pictorial, graphic, and sculptural works (paintings, photographs, illustrations, sculptures)
• Motion pictures and audiovisual works (films, TV shows, video games, computer programs)
• Sound recordings (recorded music, podcasts)
• Architectural works (building designs and blueprints)

Copyright ownership begins automatically when you create and fix an original work. A work is considered original if it is independently created by a human author and demonstrates a minimal level of creativity. Independent creation means you produce the work yourself without copying from others.

While the creator is typically the owner, companies and organizations can also own copyrights through "works made for hire" where works created by employees within their job scope or certain commissioned works are owned by the employer.

Ownership can also be transferred through contracts, assignments, wills, or bequests.

A copyright owner can enhance their protection by registering their work with the Copyright Office. This voluntary option offers the following benefits:

• timely registration enables copyright owners to seek specific monetary damages and attorney fees in lawsuits
• creates a presumption that the information on the registration certificate is accurate
• supports the licensing marketplace by making copyright ownership information accessible
• provides public notice that someone is claiming copyright protection
• serves as a record of the nation's creativity

The public domain refers to creative works that are not protected by copyright, meaning anyone can use, share, modify, or build upon them without permission or payment. Public domain content is free for anyone to use, but proper attribution may still be required, depending on the context. Works can enter the public domain in several ways:

•  The copyright may expire, once the protection period has ended.

•  The work may never have been copyrighted because it was ineligible, such as in the case of government publications in the United States.

• The creator may have explicitly released their work into the public domain through something such as a Creative Commons zero license.

• Or, older works may not have met formal requirements under earlier copyright laws. 

Exceptions and Limitations serve as a fundamental component of copyright law, reflecting the principle that copyright protections are not absolute. Mandated by the Berne Convention, all member countries are required to incorporate exceptions and Limitations within their legal frameworks. In the United States the most prominent example of this is fair use which balances the rights of copyright holders within broader societal interests.

Fair use enables the use of copyrighted materials without explicit authorization under certain conditions. These may include criticisms, commentary, news reporting, teaching, scholarship and research. 

To determine whether or not fair use can be implemented there are four factors to consider:

1.   purpose and character of its use
2.   nature of the copyrighted work
3.  amount and substantiality of the portion used
4.  effect of the use on the market for the original work

More information detailed information about fair use can be found here.

Resources:

"Berne Convention for the Protection of Literary and Artistic Works" by WIPO is licensed under CC BY 4.0

"Public Domain" by Wikipedia is licensed under CC BY-SA 4.0

U.S. Copyright Office. Copyright in general. https://www.copyright.gov/help/faq/faq-general

U.S. Copyright Office. Chapter 11: Subject Matter and Scope of Copyright. https://www.copyright.gov/title17/92chap1

U.S. Copyright Office. U.S. Copyright Office Fair Use Index. https://www.copyright.gov/fair-use/

U.S. Copyright Office. What is copyright? https://www.copyright.gov/what-is-copyright/

U.S. Copyright Office. (2019c). What is public domain? [Video]. YouTube. https://www.youtube.com/watch?v=PMp_-OX15Jc