Reproducing Others’ Works
Reproduction of the intellectual or creative work of others is sometimes permissible within certain parameters. This section contains general statements concerning the reproduction of intellectual property or creative work, copyright law, and links to relevant court cases or decisions. Please note that these are not library or university policies. They are provided for information and illustration purposes only.
Published Works (Reproductions Of)
Researchers most often want to reproduce published works for private study, or to incorporate a work (or portion of a work) into another work of their own creation, such as a dissertation, a course project, an article for publication, or a derivative work based on another person’s work.
Reproduction of a work is one of the six exclusive rights protected under copyright and reserved for the owner. However, there are several exceptions to an owner’s exclusive rights that allow researchers and scholars to reproduce copyrighted works without permission from the copyright owner.
Fair Use is the first of these exceptions and probably most well known. It places limits on the exclusive rights a copyright owner enjoys. The extent of the limits depends on careful consideration of the four fair-use factors anytime a researcher proposes to use copyrighted materials without permission from the copyright owner.
The second exception is granted to libraries and allows for the reproduction of single articles and small portions of other works for library patrons. Section 108 of the U.S. copyright law makes it possible for libraries to support research by providing copies of some of the materials in their collections.
A third exception is when the copyright on the published work has expired and the work is now in the public domain. Various charts (Hirtle, Gasaway) are available to assist researchers in determining the status of copyrighted materials.
In all situations, it is the researcher’s responsibility to determine if the reproduction is permitted under the exceptions noted above or any other exceptions available under the U.S. copyright law.
When creating new works (e.g., papers, presentations, articles, or books), researchers may wish to quote or reproduce manuscripts, letters, diaries, correspondence, reports and similar materials. These formats are frequently described as “archival” or “manuscript,” primarily because they are unpublished in nature. Users of such materials should be aware that “unpublished” does not necessarily mean “uncopyrighted.”
Unpublished works are protected by copyright law for a specified period of time. That protection can last longer than protection for published works. Consult a copyright term and public domain chart for more information.
The reproduction or publication of previously unpublished materials (including excerpts) may be considered fair use, but that determination can only be made on a case-by-case basis through a careful review of the four factors of fair use. Because the author/creator’s right to first publication is strongly supported by the courts, fair use provisions may apply more narrowly to the reproduction of unpublished materials than to published works. If fair use or some other legal exception does not apply, the researcher will have to seek the author’s permission to reproduce or publish the materials. (See court cases below for real-life examples.)
Unpublished Works in Archives and Libraries
Researchers should be aware that institutions providing access to unpublished materials (e.g., manuscripts, archives, oral histories, photographs) generally have additional policies governing the reproduction and publication of materials from their collections. Reproduction of unpublished works may, for example, be subject to special restrictions imposed by the author, records creator, or donor. Before reproduction of any unpublished materials can be permitted, it is necessary to determine whether any special restrictions exist.
Researchers are encouraged to request information about reproduction in the early stages of their research. If reproduction is permitted, the institution’s copying procedures (usually mediated) must be followed. If permission to reproduce is required, the institution may be able to provide researchers with information regarding ownership, as well as a description of basic procedures for seeking permissions. Ultimately, however, it is the researcher’s responsibility to obtain all permissions and comply with the copyright law.
The courts continue to look to the four factors of fair use regarding unpublished works.
Salinger v. Random House (1987): the court ruled against Random House in their effort to make fair use of quotes from unpublished letters of the author J. D. Salinger.
Sundeman v. The Seajay Society, Inc. (1998): the circuit court ruled in favor of fair use when it found that a researcher from a non-profit foundation did not infringe by quoting from an unpublished literary manuscript in a paper presented at a meeting of a professional society. The court found this use to be consistent with statutory favored uses of comment and criticism.
A derivative work is a work based upon one or more pre-existing works. Translations, screenplays based on books, musical arrangements, dramatizations, and fictionalizations, are examples of derivative works. Briefly, any other form in which an original work may be recast, transformed, or adapted can be considered a derivative work. A work consisting of editorial revisions, annotations, elaborations, or other modifications that, when taken as a whole, represent an original work of authorship, is also a “derivative work” (Source: Title 17 U.S.C. Section 101).
Scholars and researchers frequently find themselves in the realm of derivative works. The nature of academia presumes that new intellectual and creative work will be solidly based on the seminal research that is the foundation for the advancement of knowledge and understanding. However, the right to create derivative works is one of the exclusive rights of copyright owners. Any assertion that the creation of a derivative work qualifies as fair use would rely heavily on the transformative qualities of the original work into something new, as well as the purpose of the new work (e.g., if it is to be used in a new way). Note that authoring a new work that merely cites (i.e., makes attribution to) various other works as authority for statements in the new work does not by itself constitute a derivative work.
A thorough four-factor analysis is essential to an assertion of fair use regarding derivative works. The courts have determined what is a derivative work as opposed to a new work (or a transformative use such as parody) only on a case-by-case basis. Authors of a potentially derivative works should seek permission, assert fair use or other exceptions, and/or seek the aid of legal counsel when such questions arise.
Documents authored by the U.S. government are not copyrightable. Section 105 of the copyright law states “copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”
This means that most federal government documents are in the public domain and may be freely quoted, reused, downloaded, and copied. However, most foreign government documents, documents produced by states and most intergovernmental agencies (i.e., UN, IMF), or works created under contract with the U.S government, are not in the public domain.
The University of Connecticut Libraries purchases access to Licensed Electronic Resources (LER’s) on behalf of the university community, typically through license agreements for the content of the LER’s. License agreements governing the university’s use of LER’s usually stipulate the following.
Rights and Restrictions
Permitted Uses: Authorized users may typically display, download, print, and copy a reasonable portion (generally one or two articles or one book chapter) of the licensed electronic resource.
Restrictions: Systematic downloading, distributing, or retaining substantial portions of information or using software such as scripts, agents, or robots, to retrieve information is generally prohibited.
Works in the Public Domain
Works in the public domain may be used freely without the permission of the former copyright owner. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain include the following:
- Works published in the U.S. before 1923
- Post-1923 publications that did not satisfy U.S. copyright requirements (typically notice requirements) of the time
- Publications of the U.S. federal government (above)
- Works donated to the public domain by the copyright holder (usually by providing a statement saying anyone may copy the work)
Public Domain Determination Tables
- Copyright Term and the Public Domain in the United States (Cornell Copyright Information Center)
- When U.S. Works Pass into the Public Domain (Gasaway; U. of North Carolina)
Copyright Registration Records
- Search Copyright Records: Registrations and Documents (U.S. Copyright Office)
- Copyright Renewal Database (Stanford) — For books published in the U.S. from 1923 to 1963.
- U.S. Catalog of Copyright Entries (kingkong, U.K.) — Alternative to Stanford (above). Transcriptions of the 1923-1963 “renewals of U.S. copyright for literary works, i.e., books (omitting laws, law reports & digests, instruction manuals, parts lists, instruction papers, maps, forms & patterns), contributions to periodicals & periodicals themselves (omitting law reports & digests), and a few unpublished dramatic (& other performance) works.”
- How Can I Tell Whether a Copyright Was Renewed? (UPenn) — Detailed instructions, with comments on international copyright.