RETIRED - Copyright: Research at UNC

• Determining and Satisfying Copyright
• Seeking Permission
• Authors' Rights and Copyright Ownership

Determining and Satisfying Copyright

Under copyright law, copyright owners have exclusive rights to reproduce, distribute, perform, display, and to create derivatives of their works. The use of copyrighted works usually requires obtaining permission(s) from the copyright owner. Copyright law attempts to balance the competing interests between the scholarly community and commercial interests and to assure responsible copyright behavior. It is critical that all members of the University community stay informed about their rights and responsibilities when using copyright protected works.

Since for various reasons it is not always possible to get permission to use a particular work, it becomes prudent to choose several comparable works that will satisfy your particular needs.

Determine if permission is needed. When considering the reproduction of another’s original works, it is necessary to determine whether:

• The work is protected by copyright: The general rule is that all original works of authorship are given automatic copyright when fixed in a tangible medium. A work does not need to contain a copyright notice or be registered with the Copyright office for it to have copyright protection.
• The intended use qualifies as a fair use or meets the other statutory exceptions listed in the copyright act, that negate the need for seeking permission.
• The work is available under a license agreement. Access and use of many electronic resources provided by the University Libraries are governed by license agreements negotiated between the University Libraries and publishers or third parties. In general, these legally binding contracts allow students, staff, faculty, and other authorized users to access these resources for non-commercial, educational, scholarly and research purposes. Users of library-licensed resources must comply with the terms of agreements and be aware that publishers may monitor use of electronic resources to ensure that the terms of their licensing agreements are enforced. Breach of license may lead a publisher/vendor to turn off the University's access without warning.

Copyright protection does not extend to the following categories of works and therefore copyright permission is not required:

• Works for which copyright has expired;
• Works produced by the U.S. Government;
• Works donated to the public domain;
• Works which lack sufficient originality to qualify for copyright.

Copyright law distinguishes between “published” and “unpublished” material, with different terms of copyright applied to each. The term “published” refers to material which was copied and distributed with the permission of the creator/copyright holder. Most published material was also copyrighted. The term “unpublished” refers to material which has not been published, or which was published without the authorization of the creator/copyright holder.

Common situations for published works:

• Works published before 1923 are now in the public domain.
• Published works copyrighted 1923 through 1977 that are still in their original term of copyright or whose copyright was renewed are protected for 95 years from the copyright date. Copyrights registered before December 1963 expired after 28 years unless copyright was renewed. The only way to determine if an image published between 1924 and 1963 is still in copyright is to do a copyright search.
• Works created after January 1, 1978 are protected for the author/creator/copyright holder’s life plus 70 years.

Common Situations for unpublished works:

• Unpublished works registered for copyright before 1923 are now in the public domain.
• Unpublished works created but not registered for copyright before January 1, 1978 may be protected by copyright law until the year 2002 or the life of the author/creator/copyright holder plus 70 years, whichever is longer.
• Works created after January 1, 1978 are protected for the author/creator/copyright holder’s life plus 70 years.

For more information on terms of copyright and the public domain see Copyright Term and the Public Domain in the United States.

Seeking Permission

If the work in question is protected by copyright and is not subject to fair use or other legal exemptions, then you will need to seek permission from the copyright owner in order to make a reproduction or otherwise exercise one of the exclusive rights granted to the copyright owner.

Whenever you are uncertain whether statutory exceptions apply to your specific situation you should seek permission. You may also want to visit the Ten Common Copyright Permission Myths page by Attorney Lloyd J. Jassin.

There are four basic steps to follow when seeking permissions:

1) Identify and Locate Copyright Owner(s)
There are many resources available to help in identifying the copyright owner. Several methods are listed below.

• Ownership information appearing on the face of or inside the item; particularly look for the copyright notice and the name of the author and publisher
• Conducting a search on internet search engines by titles, author's names, publishers or parts of the text or lyrics can help to identify the copyright owner
• Online telephone directories and address directories
• Print telephone directories when the owner’s geographical location is known
• Databases of trade associations or professional groups
• Archives or special collections containing the creators' works; print and electronic resources that identify archives
• Copyright Office records
• Other online databases listing or collecting creative content
• Individuals involved in creation of the work (even if they are not owners)
• Collective Rights Organizations (Harper, UT Austin) -- Describes organizations and agencies that manage rights or help identify or locate copyright owners.
• For musical works and performance rights organizations' databases, see Music at the University of Connecticut Copyright web site.
• For art and other images, see Images at the University of Connecticut Copyright web site.
• Trademark research services available through commercial vendors such as Thomson-CompuMark or Corsearch.

2) Contact the Copyright Owner
Copyright owners may require permission requests be made in a specific format (i.e fax, mail, phone, etc.) Telephone calls may be the quickest method for contacting the copyright owner, but should be followed up with a written letter in order to verify all of the pertinent information requested by the copyright owner. In addition many publishers have websites that offer a method for contacting the copyright owner. Check the publisher's website for a permissions department or other contact person.

3) Secure Permission
Some copyright owners furnish their own permission agreement forms that can be downloaded. A sample permission letter is also available here. Collective Rights Organizations, such as the ones listed above, can contact the copyright owner(s) and obtain permission for you and in some cases have the authority to grant the permission on the copyright owner(s) behalf. Before requesting permission to use a copyrighted work, the researcher needs to determine the rights needed to complete their work. This is usually as simple as identifying how the copyrighted item will be used, for example the researcher may want to reproduce a photograph in a book they are writing. The researcher will also need to be familiar with three variables of copyright permissions: term, territory, and exclusivity.

• Term - Term is the length of time that the use of the copyrighted work will be allowed. Permission may be limited to a duration or permission may be granted in perpetuity, meaning that rights are granted without a time limit.
• Territory - Permission rights are usually limited to a geographic region or territory.
• Exclusivity - Permissions are either exclusive or nonexclusive. Most permissions are nonexclusive, meaning that others can request permission and use the material in the same way. A permission agreement would be exclusive if only one person was granted the right to use the work as described in the agreement.

4) Keep A Detailed Record Of Your Request For Copyright Permissions
Good record keeping can help facilitate answering questions concerning the terms and conditions of the permission as well as contact information on the copyright owner(s). Detailed records of your search are also essential if you are unable to identify, locate, or obtain permission from the copyright owner, but still wish to use the work in question. A sample checklist is available here.

Dealing with Unknown\Ambiguous Copyright
The nature of historical archival collections means that copyright or other information about restrictions may be difficult or even impossible to locate. Researchers may not be able to identify a copyright owner or locate the copyright owner. Researchers may also seek permission from the copyright owner, but receive no response.

• The inability to identify the owner of copyright is often a problem with works that do not have a title or name. Researchers should search by a description of the work, but that is not usually successful.
• Sometimes researchers are able to identify the owner of copyright, but cannot find current contact information. Similarly, researchers may be able to identify the original copyright owner, but that individual has died or the company has gone out of business and researchers may be unable to track any heirs or successors.
• Occasionally, a copyright holder will not respond to a researcher’s attempts to obtain copyright permission.

In these circumstances researchers must conduct a “risk analysis” to determine appropriate use of a work, using their knowledge of rights principles such as duration of copyright and the definition of fair use, with information supplied with the image and found in the Copyright Office records. The researcher must balance the benefits of using the work against the risk that the copyright owner may see the project and assert the owner’s legal claims. Undertaking this analysis can be sensitive and must be completed with caution and careful documentation. The researcher may be able to reduce the risk of liability, but they will not be able to eliminate liability.

If your permission request is denied, it is best to consult with UNC's Office of the General Counsel or an attorney before proceeding with that specific use.

Copyright Ownership

KNOW YOUR RIGHTS AS THE AUTHOR:

• The author is the copyright holder. As the author of a work you are the copyright holder unless and until you transfer the copyright to someone else in a signed agreement.
• Assigning your rights matters. Normally, the copyright holder possesses the exclusive rights of reproduction, distribution, public performance, public display, and modification of the original work. An author who has transferred copyright without retaining these rights must ask permission unless the use is one of the statutory exemptions in copyright law.
• The copyright holder controls the work. Decisions concerning use of the work, such as distribution, access, pricing, updates, and any use restrictions belong to the copyright holder. Authors who have transferred their copyright without retaining any rights may not be able to place the work on course Web sites, copy it for students or colleagues, deposit the work in a public online archive, or reuse portions in a subsequent work. That’s why it is important to retain the rights you need.
• Transferring copyright doesn’t have to be all or nothing. The law allows you to transfer copyright while holding back rights for yourself and others.

The Scholarly Publishing and Academic Resource Coalition (SPARC) offers excellent information on securing the rights for works that you have authored.

Today many authors are signing amended publisher agreements that permit them to retain certain rights, such as the SPARC Author Addendum. Also, these same authors can selectively pre-grant permission for others to use or distribute their works according to pre-set conditions through such means as a Creative Commons license. This idea of selectively retaining rights has become a central point in reshaping the concept of Scholarly Communication.

MIT Libraries offers some information on common misconceptions concerning author's rights, such as misconceptions on sharing your work on your web page or using your work in classroom settings. It is becoming increasingly important that authors are aware of their rights, especially when they have signed a contract with a publisher.

Information on determining and satisfying copyright adapted with permission from the University of Connecticut Libraries’ Copyright web site http://www.lib.uconn.edu/copyright/.