Copyright facts & copyright opinions

Some thoughts after recent conversations related to RightsStatements.org, and also some interactions with students in the online class I’ve been teaching. I may be wrong about some of these statements, and welcome suggestions about where I am wrong in the comments, or on Twitter.

The existence of a copyright is a legal fact. Sometimes it is a knowable fact, and sometimes it is an unknowable one.

  • example: no copyright exists in a work that was published in the United State prior to 1923; knowable.
  • example: no copyright exists in a work that has never been published, but whose creator died more than 70 years ago; knowability depends on whether you know who the creator was, and whether you can figure out when they died.
  • example: no copyright exists in a work that was published from 1922 through 1963 in which the copyright was registered and not renewed; knowability depends on whether you can get your hands on the -right- set of renewal records for the right year.

Who the owner of a copyright is, is usually a legal fact. Sometimes it is a knowable fact, and sometimes it is an unknowable one. Every once in a while, it’s a matter of opinion.

  • example: a work produced on the job usually belongs to the employing organization. This is usually knowable, although fairly often, one or the other (or both) is unaware of the fact.
  • example: sometimes, it may be factually unclear whether a particular person is an employee.
  • example: sometimes, it may be factually unclear whether a copyright was transferred to someone else, or how a chain of inheritance ran.

Whether a particular use is permitted under a specific copyright exception in §§108-122 is sometimes a fact, and sometimes a matter of opinion.

  • example: a teacher holding up a book and reading it aloud to a classroom of first-graders in a public school is 100% allowed to do that under §110(1)
  • example: opinions may vary about whether a teacher reading aloud a book in a cow barn is in a “classroom or similar place devoted to instruction”

Whether a particular use is a fair use is almost always a matter of opinion, until such time as a court rules on a particular case.

  • example: opinions vary on whether an instructor using an image in a slide deck as part of classroom instruction at a public school is a fair use or not.

Hmm. More to think about here.

2 Comments

  1. Debbie Wilden

    Is there a copyright law that would prohibit me from copying the same links another site uses? These are all websites that are OK to link to, as they are all government sites. There is a business website that does this and only uses links to these government sites, but they sell the use of their site for a yearly fee that is extremely expensive for a non-profit to use.

    • nasims

      Hi, months later. (Sorry, your message was caught in my spam filter, and I didn’t see the first time I checked!)

      It’s possible for someone to own a copyright in a list, if the list reflects creative expression in its selection or arrangement. Such a copyright only extends -to- the selection or arrangement, it wouldn’t bar someone else from re-using some of the list items in their own list with its own selection and arrangement. Lots of lists, though, don’t even have enough creative expression to give rise to a copyright.

      However, even when there is no copyright in some set of information, commercial distributors sometimes create a legally binding obligation not to reuse the materials via a contract or license to use their services. I have no idea of the specifics of your situation, so it may be that neither of these issues is applicable, and it may also be that there are other issues I’m not aware of. So don’t consider this legal advice; you’ll want your own lawyer for that.

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