Addressing Copyright

In this lesson you will learn

  • How copyright affects data sharing, especially for qualitative data
  • Public domain and fair use as notable exemptions from copyright
  • 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 that 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.

Copyright is a form of protection for original works of authorship (published or unpublished).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. It is attached automatically to all original literary/textual, artistic, dramatic or musical material 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. When someone else holds the copyright in some of your data, unless they legally assign you that right, your ability to grant others access to those data may be limited.

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.

The way copyright applies around the world is governed by a set of international conventions by which countries recognize each others’ 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 are considered “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:

  1. They are released by the creator to the public domain and
  2. 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 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 judgements 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.

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 (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 is exceptionally messy due to multiple legal changes. The only rules that hold without exemption for the US are that

  • unpublished works created before 1898 (i.e., 120 or more years ago) are in the public domain and
  • works published before 1923 (i.e., 95 or more years ago) are in the public domain.

For all other cases, we recommend this useful chart – you’ll notice this can be quite tricky and 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?

  1. Determine whether the following works are under copyright or in the public domain, and justify your determination:
    1. This image of Obama and the son of one of his staffers taken by Pete Souza, official White House photographer, in 2009
    2. This image of Ronald Reagan challenging Gorbachev to “tear down this wall,” taken by an Associated Press Photographer in 1987
    3. This seminal article on public administration, written by Woodrow Wilson in 1887, 26 years before assuming the presidency
    4. This image of Canadian Prime Minister Justin Trudeau, taken in 2018 by photographer Adam Scotti of the Prime Minister’s Office
  • show solution
      1. Yes (was produced by an employee of the US government in the exercise of their duty)
      2. No (was not produced by an employee of the US government)
      3. Yes (published before 1923)
      4. No (work by Canadian government employees is protected by copyright for 50 years under “Crown copyright.” We did not necessarily expect you to delve into Canadian law here, but hope the provenance of the image made you realize that that is the source that you’d have to check to answer the question, and brought home the point that you should assume a work is under copyright unless you know otherwise.)

    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 (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 to further disseminate copyrighted work for pedagogical or research purposes from the person or entity who holds copyright.

    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:

    1. Purpose of re-use,
    2. Nature of original work,
    3. Amount to be re-used, and
    4. 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 fair use law, 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.

    Copyright is, unfortunately, not the only proprietary constraint that can apply to sharing materials. For instance, if you access content through a database, you will often have to agree to terms and conditions that restrict your usage of materials you obtain. Take for example, the 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.

    So even if a text that you download from Gale may have 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. Sometimes you can 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, if you speak with archive personnel, they may be open to making the documents accessible. These kinds of inquiries and discussions are often worth a try!

    Exercise

    Getting Permission from an Archive

    1. You’re planning to visit a historical archive that has posted online some rules about the further dissemination of their materials that you don’t really understand. 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.
    • show solution
      1. Here are some things your request might have included: your institutional affiliation; the nature of your research project; why the data are important for your project; why you would like to share the data; in what specific data repository you plan to share the data and what that implies for their accessibility; when you would like to share the data; when you will be visiting the archive; an offer to discuss the matter with the archivist when you are on sight.