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.