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Scholarly Communications & Open Access: Overview

Overview

This guide is intended to provide CSU-Pueblo faculty, staff, and students with an understanding of copyright law, fair use applications, and intellectual property law. 

Copyright law balances the interests of creators, readers, and publishers by governing the ways in which a person's original creation can be used, what permissions are required, and legal exceptions. Copyright issues can be complex, but failing to understand the basics is not an excuse. Failure to comply with copyright law can lead to substantial legal penalties for you and the university. 

DISCLAIMER: Nothing on these pages should be construed as legal advice.

Copyright Basics

What is copyright?

Copyright is a form of protection grounded in the Constitution (Article 1, Section 8), and granted by law (including the 1976 Copyright Act and 1998 Digital Millennium Copyright Act) that covers both published and unpublished original works of authorship fixed in a tangible medium of expression. 

What does copyright protect? 

Copyright protects original works of authorship fixed in a tangible form of expression. The copyright office names eight categories and advises they be interpreted broadly. For example, computer software programs are considered "literary works," while maps or architectural plans may be registered as "pictorial, graphic, and sculptural works." The categories are listed below.

  • literary works
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

What does copyright NOT protect? 

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. It also does not protect data (although it may protect the ways data is expressed, like graphs and charts). 

I am the copyright holder. What am I allowed to do? 

As the copyright holder, you have the exclusive right to do and authorize others to do the following: 

  • Make copies of the work
  • Make derivative works based on the original work
  • Distribute copies of the work by sale, rental, lease, or lending
  • Perform or display the work publicly (in the case of literary, musical, dramatic, choreographic, artistic, sculptural or audiovisual works)

These rights can be transferred in whole or in part to other entities through a written and signed contract.

Who can claim copyright?

As soon as a work is created in a fixed medium (e.g., written down, graphed, coded), the work is copyrighted and belongs to the creator(s). There is no need to register the work to obtain copyright. If the creator wishes to publish or distribute the work, they may sign a contract with a publishing or recording company. The company will need to acquire some or all of the copyrights in order to edit, print, copy, and sell the work.

If the creator(s) transfer full copyrights to another entity, this entity can claim copyright infringement for unlawful copies, modifications, or distributions of the work. The creator(s) are no longer to make copies or distribute the work (even for classroom use) without permission of the copyright holder. 

Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify. 

The four factors below are set out in Section 107 as a means of determining fair use. It is important to remember that no one factor can decide whether a particular case qualifies as fair use, it is the combination of these four factors that you must consider. 

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. Not all educational and nonprofit uses are fair, and not all commercial uses are unfair. Transformative uses (those that add something new, with a different purpose or character) are more likely to be considered fair. 
  2. Nature of the copyrighted work. In what ways does the original work relate to copyright's core purpose of encouraging creative expression? Using a creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of fair use than using a factual work (such as a news item or technical article). Use of an unpublished work is also less likely to support a claim of fair use. 
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole. Using a large portion of the original work is not likely to be considered fair use; employing only a small amount of copyrighted material is more likely to be fair. However, some courts have found use of an entire work to be fair under certain circumstances; in other cases, even using a small portion of the work was determined to be unfair because it was a crucial part—or the "heart"—of the original work.
  4. Effect of the use on the potential market for or value of the copyrighted work. Will the proposed use harm the existing or future market for the copyright owner's original work? If it has the potential to disrupt sales or cause substantial harm, fair use is less likely. 

As mentioned above, teaching and scholarship are two common examples of fair use. For a more detailed look at how fair use applies to instructors, visit the copyright for instructors section. 

Learn More About Copyright