The Basics of Copyright: Key Issues Every Editorial Professional Should Know

By:

Libby Morgan Beri
Consultant, Origin Editorial

Take Home Points:

1. Authors must obtain permission from the copyright holder to reuse any substantial amount of material from another work (whether published or unpublished); simply providing credit to the original source is not sufficient.

2. Material is protected by copyright law even if it does not include a copyright notice (e.g., © Origin Editorial).

3. The original author/creator may no longer hold the copyright. Before reusing copyrighted material, determine who is the current rights holder and contact them for permissions.

4. Open access publications carry Creative Commons licenses. But if these publications have reused original content protected by copyright, you must obtain a permission from the copyright holder to reuse that portion of material.

5. The process of obtaining permissions can be tedious and lengthy, requiring significant research into who holds the rights; waiting for a response from the copyright holder; identifying alternative material, if needed. Begin the process early and keep detailed records of all permissions obtained to provide to the publisher.

Understanding copyright protection and providing proper support on copyright-related issues presents several challenges for editorial professionals.

Over more than a decade of work with authors, editors, and publishers, I have encountered many authors who believe that all they are required to do, before reusing any material, is to credit the original source. Others assume that because an image is available on a website, it can be freely used. Still others realize that permissions are required, but try and get around this by “recreating” the material.

Despite this confusion, at its core, copyright law is quite simple: authors must obtain permission from the rights holder to reuse any copyrighted material. Elsevier explains: “As a general rule, permission should be sought from the rights holder to reproduce any substantial part of a copyrighted work. This includes any text, illustrations, charts, tables, photographs, or other material from previously published sources.”

Permission could come in the form of a Creative Commons license (more on this below); a letter from a publisher; or simply an email from the copyright holder stating that reuse is permitted.

Publishers typically require documentation of such permissions during the publication process, and publication can be delayed until this is available.

Editorial support professionals therefore often find themselves caught between publishers’ requirements (and copyright law itself) and authors or editors, whose primary concern is publishing their work and would rather not be bothered with the tedium of obtaining permissions.

Discussions around copyright are complicated by the fact that there is no international copyright law. Most countries have ratified the Berne Convention, which sets out general standards to protect the creators of copyrighted works, but copyright law is governed differently by every country. Copyright is generally treated according to the terms of the country in which the material is being reused (more here); this post focuses on how copyright is handled in the United States.

Another challenge is that it is not always clear who the rights holder is, and thus who has the authority to provide permissions. The creator of the work may have transferred this authority to a publisher, or created the work as a “work made for hire”. In these cases, it is the publisher or employer/contracting entity that owns the copyright.

By understanding the basics of copyright, we can better support the work of authors and publishers; facilitate the publication process; protect the rights of copyright holders; and ensure the integrity of the research enterprise.

Please note: I am not a copyright lawyer, and this brief post provides only the most basic of introductions to the subject. Copyright is complicated, and copyright violations can have significant legal and financial ramifications. I always err on the side of assuming that permission is required, and removing or substituting material if permission cannot be obtained. If you encounter any situation that is particularly tricky, and cannot find a suitable alternative, it’s always best to seek the advice of a copyright lawyer.

What Copyright Protects

At its most basic, copyright law protects creators of original works from the unauthorized use of these works, and gives creators the right to authorize reuse of this material, including charging a fee to do so.

Under U.S. Copyright Law, copyright protects works that are:

Original – created independently, with at least “a modicum” of creativity.

A work of authorship – including journal publications, books, website content, photographs, YouTube videos, Facebook or Twitter posts, and Instagram photos. Facts, ideas, concepts, and discoveries are not copyrightable; single words and short phrases are also not protected.

Fixed – in a “tangible medium of expression”. The work can be digital or printed, and it does not have to have been published; unpublished material is also copyrighted.

Copyright protection is automatic: a work does not need to be registered, or include a copyright notice (© 2023 Libby Beri / All Rights Reserved), to be protected. If an author wishes to file a lawsuit in the United States for infringement of copyright, however, they are first required to register the copyright with the U.S. Copyright Office.

How Long Does Copyright Last?

Personally authored works created after January 1, 1978 are protected for a period of 70 years after the death of the author; in the case of jointly authored works, this 70-year period begins with the last surviving author’s death. “Works made for hire”—whether created during an employee’s regular duties, or as the result of a commission or contracting agreement—are protected for 95 years from the date of publication, or 120 years from the date of creation.

After this time period, the work is in the “public domain” and can be used freely.

Anything published before 1928 is now in the public domain and can be reused without any restrictions. Works created between 1928 and 1963 are more complicated, as there have been various changes in copyright law over the years that affect whether permission is needed. This interactive tool provides a useful starting point for determining whether something is in the public domain.

What Copyright Does Not Protect

Material that is in the “public domain” can be reused freely. This includes:

  1. Works published more than 95 years ago; as of 2023, this is anything published before 1928.
  2. Many U.S. government publications–although it is possible for the U.S. government to hold the copyright. It is always prudent to check before reusing such material.
  3. Ideas, facts, and concepts are not protected, although the specific expression of these things (for example, in a description or graphical illustration) is. It is important to note that some items that are not protected by copyright—for instance, titles or slogans—may be protected by other intellectual property laws such as trademarks or patents.
  4. Tables, charts, and graphs that represent only raw data or are purely factual are not protected. However, they are protected if they possess “a modicum of creativity,” as illustrated in Figure 1.

Figure 1: The xkcd Money chart by Randall Munroe (left), is protected by copyright and is licensed under the CC BY-NC 2.5 license. The table showing some of the data from the “Dollars” section of the chart (right) does not include any creative input and is not copyrightable. Example taken from University of Michigan Library Copyright Basics (CC BY 4.0).

What is a Creative Commons License?

In recent years, the increase in open access publishing and the concurrent use of Creative Commons licenses has made it easier for authors to identify material that can be reused.

Creative Commons (CC) licenses work within copyright law and allow creators to grant permission for their work to be used in specific ways. If material is CC licensed, you do not have to obtain permission to reuse it—but you must follow the terms of the specific CC license, including providing attribution to the source and only using the material according to the specific terms of the CC license. There are six different types of CC licenses that allow for different kinds of reuse; for instance, you may be allowed to reuse material only for non-commercial use, or you may be able to reuse material as long as you don’t make any modifications to it. Figure 2 provides examples of three Creative Commons licenses and what type of reuse they allow.

Figure 2: Examples of Creative Commons licenses providing different levels of protection.

When Does an Author Need Permission to Reuse Material?

In short, any time they want to reuse material that is copyrighted. Table 1 provides a brief overview of when permissions are required and not required.

Because copyright protection is automatic, and material does not have to explicitly include a notice of copyright protection, it is always safest to assume that material is copyrighted unless it clearly fits into one of the categories of material in the public domain.

Can Authors Reuse Their Own Work Without Permissions?

Although the creator of a work is always the initial copyright holder, during the course of publishing, the creator may have transferred copyright to another entity (such as a publisher or the U.S. government) and may no longer be in the position to grant permission for reuse—even to themselves.

For any previously published material, authors should first verify who is the rights holder and, if they have transferred the rights, seek permission to reuse the material.

How to Obtain Permissions

The process of obtaining permissions depends on who holds the copyright.

For many journal publications, copyright permissions are handled online through the Copyright Clearance Center/RightsLink.

If an online copyright request form is not available, contact the rights holder to request permission. Guidance on what to include in a copyright request is available from the U.S. Copyright Office.

In general, it is the responsibility of the author—not the editorial office—to obtain any required permissions, although authors will often try to delegate or avoid this responsibility. It may be helpful to establish a policy that the editorial office does not assist authors in obtaining permissions (apart from exceptional cases). If authors are unable to obtain permissions, they must remove the material in question in order to proceed with publication.

What if an Author is Unable to Obtain Permission?

If an author has contacted the rights holder but has not received a response, they should not use the material. Look for an alternative for which permissions are available. If this fails, the best course is to remove the material in question.

Resources:

Foundations of Copyright circulars by the U.S. Copyright Office), especially Copyright Basics, Duration of Copyright, How to Obtain Permission, Works Not Protected by Copyright, and Works Made for Hire

The UC San Diego Library offers an especially comprehensive guide to copyright, fair use, and author rights. Their five-question framework for copyright analysis TKT

In general, university libraries are invaluable resources for learning more about copyright protection and how authors can determine whether material is protected and if permissions are needed.

Guidance on Copyright and Permissions (UK Society of Authors)

Top 10 Misconceptions about Copyright (from RightsDirect)

Reusing images you find on the internet, without breaking the law

Conflicts of Interest

None to declare

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