Copyright and Creative Commons

Overview

What type of music are you including in your work? Who is the artist? How have you obtained permission to use their work in your podcast?

Whenever you are developing a creative endeavor that is contingent on the work of others, like when you include someone else’s song or sound effect into your podcast, you should think about the implications of using materials created by others and what rights you have, and don’t have, depending on the license.

To get you started, we encourage you to listen to this podcast episode recorded by the UW Libraries for the 2019 Digital Scholarship Summer Immersion program. In this episode, Maryam Fakouri – our Copyright Librarian, talks about copyright, fair use, and Creative Commons.

What is Copyright?

Copyright is a form of intellectual property. While it is a singular word, it is plural in concept. This means that copyright holders have the exclusive rights that allow them to:

• reproduce a work
• prepare derivative works based upon the original work
• publicly distribute copies of the work
• publicly perform the work
• publicly display the work
• publicly perform the work via digital transmission (in the case of sound recordings)

Basically, if an item is under copyright, there are only two definitive ways in which you can use the work:

1. Obtain written permission from the author.
2. Obtain a license.

What happens when I violate a copyright?

If you are found to be under a copyright violation – often known as copyright infringement – your work is likely to be forcibly removed from a platform (think copyright strikes on YouTube or sections of audio being muted on Twitch). Additionally, a copyright owner may attempt to seek damages and threaten  litigation against you.. 

Are there exceptions to copyright?

Yes, but it depends on how much risk you’re willing to take on. This is often considered Fair Use.

What is Fair Use?

Generally speaking, fair use is a way to balance the exclusivity of copyright owners to use their work with the needs of others who also need to use copyright-protected works. Fair use guidelines exist, and we will cover them below, but you should know that determinations of fair use are mostly decided in courts. However, the fair use doctrine is flexible and each situation is intended to be evaluated individually.

What factors determine fair use?

While no single factor can sway a legal outcome, fair use is often determined by the consideration of four factors. Maryam often describes each factor as a sliding scale from unfair to fair. The factors are:

1. Purpose and character of the use: 
   1. a work provides a social benefit; often used in teaching, scholarship, research and reporting
   2. a work is transformative; often used in parody, analysis and satire
   3. Example: using portions of a picture in a collage OR creating an online parody
2. Nature of the work used:
   1. a work that describes highly factual material is more likely to be considered fair use than a highly creative material 
   2. use of an unpublished work is less likely to be considered fair
   3. Example: reporting on a news item (highly factual) as opposed to importing an entire song into a podcast (highly creative)
3. Amount of the work used:
   1. determined by how important the piece used is to the original work
   2. both quantity and quality are factored in
   3. there is no hard and fast rule about how much of an original work can be used, but the “heart of the work” is often considered when making fair use determinations
   4. Example: it is fair for Google Books to scan entire books to allow them to be searched for word matches in a search window but it is not fair for a newspaper to print the most anticipated part of a bibliography without permission
4. Effect on the market for or value of the work used:
   1. this determination is based on a number of considerations including:
   2. is the new work a competitor to the original work?
   3. does it harm the original work in any way?
   4. does it devalue the original work in any way?
   5. does it pose a substantial threat to the work’s value if it becomes widespread?

What is Creative Commons?

Creative Commons is a source for media that can be used at no cost. It enables collaboration, growth and generosity in various forms of digital media. In many ways, its mantra, “when we share, everyone wins” perfectly encapsulates a response to and criticism of copyright. With Creative Commons licenses, authors are free to determine how their work can be used and under what conditions others can use it.

The Creative Commons licenses include: 

• Attribution (CC BY) – you are allowed to distribute, remix, tweak and even profit off of the work as long as credit is provided to the original author
• Attribution ShareAlike (CC BY-SA) – you may use an original work as long as you continue to distribute any modified new work under this license
• Attribution-NoDerivs (CC BY-ND) – you may use an original work but are not allowed to modify it in any way unless permission is granted beforehand
• Attribution-NonCommercial (CC BY-NC) – you may use an original work for all uses except commercially unless permission is granted beforehand
• CC0 – “no rights reserved” means you are free to freely build upon, modify, distribute, and profit off the original work without any restriction under copyright or database law
• Public Domain – this captures not only CC0 works but also any creative work where rights have been waived, deemed inapplicable and forfeited or when rights have expired  

These licenses allow artists to freely share resources. You can also license your work by choosing a license and sharing it openly through many online platforms. 

To find Creative Commons works, refer to the list of Creative Commons platforms.

What questions do you have?

We are happy to hear any questions you may have about copyright and Creative Commons.