Addressing Copyright
In this lesson you will learn
- How copyright affects data sharing, especially for qualitative data
- How material being in the public domain or covered by the fair use exception outlined in US copyright law facilitates data sharing
- What creative commons licenses are
Initial questions
- Have you ever come across a photo or a newspaper clip that you really wanted to include in your work – and then share with your other data? Do you know how to go about arranging for that?
- Think about the data associated with a research project you’re carrying out – did you collect data sources created by others, or did you generate the data yourself (e.g., through conducting interviews), or both? What effect will the data’s “provenance” have on if and how you share them?
Note: The authors of this course are not lawyers and nothing that we discuss here should be construed, in any way, as legal advice. If you have any concerns about the copyright status of a work, contact a lawyer. Often, your university library will have a lawyer or copyright expert on staff.
What Is Copyright?
Copyright is a form of protection for original works of authorship (published or unpublished). Copyright establishes such works as the intellectual property of their creators and grants the creator the exclusive legal right to decide whether, and under what conditions, this original work may be used by others. Copyright attaches automatically to all original literary/textual, artistic, dramatic or musical work fixed in a material form: the very act of writing or recording original work generates copyright immediately.
“Original work” in this context is generally interpreted quite liberally. Copyright extends to most written works, graphic works such as photos or films, audio recordings, architecture, and many other products of creative processes. Most research outputs (be they formal academic publications, reports, spreadsheets, computer programs, photographs or, arguably, even field notes) fall under this definition, and are thus protected by copyright. Copyright serves to prevent unauthorized copying, publishing or further dissemination of work it protects. When someone else holds the copyright in some of the data that you collected, unless they legally assign you that right, your ability to grant others access to those data may be limited.
What Is Not Covered by Copyright?
In the US (and most other countries) some things cannot be copyrighted. Those include names (though they can be trademarked), facts, or modes of operation. For example, cooking recipes are not protected by copyright, although the way they can be described may be (in particular if the description goes beyond a mere discussion of steps). Similarly, most quantitative data, as statements of fact, cannot be copyrighted, but a purposeful compilation of them into a database can be.
Where Does Copyright Apply?
The way copyright applies around the world is governed by a set of international conventions by which countries recognize each other’s copyrights. The copyright protection that can be awarded to a particular work depends upon the country in which the author seeks protection, and what the laws of that country say. (It doesn’t depend, for instance, on the citizenship of the author or where they work.) Thus the works of authors published almost anywhere in the world can be protected by US copyright laws if the author so desires (with some exceptions, e.g., the US does not recognize Iranian copyright and vice versa).
Addressing Sharing Challenges
You obviously need to adhere closely to all relevant law when sharing data. In this section, we offer some ideas to help you determine whether materials you have collected really are under copyright, and how to address that challenge to sharing them if they are.
Original Works without Copyright: The Public Domain
Original works that are not under copyright are considered to be “in the public domain”. That means that you can legally use these works in any way you see fit: you can reprint them verbatim, share them, sell copies of them, etc., all without any obligation to the creator. Scholarly norms, of course, dictate that you need to cite works that are in the public domain, but this is an ethical not a legal obligation.
Good to know
Just because a work is freely available does not mean it is in the public domain. In fact, almost everything you find on the internet is protected by copyright.
Works enter the public domain through two channels:
They are released by the creator to the public domain and
Their copyright runs out such that they enter the public domain automatically.
Works Released into the Public Domain
Sometimes authors will choose to release their works into the public domain. One way to do so that’s widely accepted internationally is to use a specific tool, the Creative Commons public domain dedication or CC0. Wherever you see the CC0 logo 
, you know the work to which it is attached is in the public domain.
One common source of work in the public domain is the US federal government. Any work produced by an agent or employee of the US government in the exercise of their duty is not eligible for copyright and is thus in the public domain in the US. (The absence of copyright does not mean the information is public, though. Some government documents are, literally, top secret, meaning you likely won’t be able to access them – but even those are not copyright protected.)
However, the same rules do not apply to US state governments or to the governments of other countries. Many countries have some exemption from copyright for official works such as laws and judgments of courts and tribunals, but few go as far as the US in extending that exemption to all government works. Ascertaining the regulations governing works of a particular government can be tricky. The lists compiled by the Wikimedia Commons and Wikipedia (both organizations rely heavily on such public domain material) are a useful starting point.
Works Whose Copyright Has Expired
Copyright does not last forever. Depending on whether authorship is known, as well as national law, the duration of copyright may be determined by the death of the creator (i.e., running out x number of years later) or the date of publication (i.e., running out on work published x or more years ago). While such rules make the copyright status of historical works quite clear in most countries, US copyright law has become exceptionally messy as it has been changed over time. The only rules that hold without exception for the US are that
- unpublished works created 120 or more years ago are in the public domain and
- works published95 or more years ago are in the public domain.
For all other cases, we recommend this useful chart. You’ll notice that determining copyright status is complicated, and that many works have gone in and out of copyright repeatedly over the last 50 years. Duke’s Center for the Study of Public Domain has some fun examples and thoughtful commentary. After copyright on a work runs out the work automatically enters the public domain.
Exercise
Public Domain or Not?
- Determine whether the following works are under copyright or in the public domain, and justify your determination:
- This image of Obama and the son of one of his staffers taken by Pete Souza, official White House photographer, in 2009
- This image of Ronald Reagan challenging Gorbachev to “tear down this wall,” taken by an Associated Press Photographer in 1987
- This seminal article on public administration, written by Woodrow Wilson in 1887, 26 years before assuming the presidency
- This image of Canadian Prime Minister Justin Trudeau, taken in 2018 by photographer Adam Scotti of the Prime Minister’s Office
Can You Share Data That Are under Copyright?
If data you use are under copyright, i.e., not in the public domain, there may be ways to mitigate this challenge to sharing.
Licensing or Permission for Re-use
All of us routinely use copyrighted work in our research and teaching. We are able to use copyrighted work in this way because we have (or someone acting on our behalf has) requested explicit permission from the copyright holder to do so (often a university library paying a license for its patrons to use the work). You may be able to request and secure explicit permission from the person or entity who holds copyright to further disseminate copyrighted work for pedagogical or research purposes.
Fair Use
Alternatively, when we use data that are under copyright, we are sometimes working under a special exception called “fair use,” as outlined in the U.S. Copyright Act (section 107). “Fair use” represents a limitation on the otherwise exclusive right held by a copyright owner to reproduce an original work. It is a stipulation that, under certain conditions, you can quote verbatim – without contacting the copyright holder – brief excerpts of copyrighted material for purposes that are publicly beneficial and not likely to infringe on the copyright holder’s commercial interests. One area of public benefit specifically mentioned in the law is teaching and scholarship.
Fair use determinations are not clear-cut. Whether the re-use of copyrighted material falls under the fair use exemption is determined by considering the original work and the plans for re-use along four dimensions:
Purpose of re-use,
Nature of original work,
Amount to be re-used, and
Expected effect of re-use.
Columbia University libraries have a useful checklist to determine factors weighing for and against fair use claims.
Given the complexities of copyright law and the fair use exemption, you should solicit the help of a data or library professional if you want to share materials (e.g., newspaper articles or archival materials collected during fieldwork) on the basis of a fair use claim.
Licenses: Beyond Copyright
Copyright is not the only proprietary constraint that can apply to sharing materials. For instance, if you access data for a research project through a database, you will often have to agree to terms and conditions that restrict your usage of the materials you obtain. Take for example the international terms and conditions of Gale, a database provider that licenses many databases of historical materials to academic institutions:
The subscribing institutes (“Customer”) and their authorized users, may make a single print, non-electronic copy of a permitted portion of the content for personal, non-commercial, educational purposes only.
Even if a text that you download from Gale entered the public domain long ago, based on this license agreement, you are not allowed to even make an electronic copy of the file, let alone share such a copy with other researchers. Likely because of pushback from US libraries, the terms for US customers are more generous, though would still not allow you to share such files through a repository.
As a final overall point, from the standpoint of someone who may wish to access constrained material, you may sometimes be able to discuss constraints with those who imposed them to see if there might be flexibility. For instance, even if an archive generally places limits on the dissemination of documents, archive personnel may be open to making the documents accessible at your request. These kinds of inquiries and discussions are often worth a try!
Exercise
Getting Permission from an Archive
- You’re planning to visit a historical archive, and while you have looked on line in an effort to discover their rules about the further dissemination of their materials, you have not been able to find them. Compose an email to the archivist requesting permission to include the materials you will obtain from the archive in a data project you plan to share.