Sustainable Agriculture Institute
Copyright and Your Intellectual Property Rights
Table of Contents
- Intellectual Property Ownership, Fair Use, and Your Rights and Responsibilities
- Copyright Laws Around the World
- Various Copyright Exceptions
- Copyright does not Apply to Everything
- Automatic Protection and the Elimination of Formalities
- Works of Other Governments
- Works that are not Fixed
- Copyright Duration Varies in Different Countries
- Few Countries Have a Concept Akin to Fair Use?
- Fair Use Act and Copyright Law
- TEACH Act and Copyright Law
- TEACH Act Checklist
Intellectual Property Ownership, Fair Use, and Your Rights and Responsibilities
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This manual is principally intended to help readers learn and understand the copyright issues relevant to Permaculture Master Plans hosted at Sustainable Agriculture Institute.
Any views expressed in this manual are those of S.A.I. and do not necessarily reflect the views of any other person or Institute.
This manual is not legal advice. For some copyright questions, you may need to consult an independent legal advisor.
Copyright and Your Intellectual Property:
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S.A.I. works to always stay up to date as an ISO Educational Organization and keep our student’s rights at the forefront of our responsibilities and as such we will assure that your work submitted to S.A.I. maintains all the legal ownership to the student as the legal author.
Copyright Laws Around the World
Authors of scholarly works inevitably work in an environment that crosses national boundaries and is affected by the laws of multiple countries. An American student might conduct research in Japan, then produce a dissertation that is published in the U.S. and distributed to readers in Canada, France, and many other countries.
A student may live and study in Italy and do all research in that one country, but later make the dissertation available through S.A.I. in Thailand, thus likely subject to Thai law.
The growth of the Internet and worldwide communication also means that nearly every scholar is routinely accessing materials from scattered countries, and a Permaculture Master Plan posted to the S.A.I. website, is available internationally and possibly subjected to multitudes of legal regimes.
Although this manual focuses on American copyright law, it should offer some helpful insights for researchers in the U.S. and around the world.
First, American law applies to research, publishing, and other activities conducted inside the U.S. and to the distribution of works inside American borders. A brief guide to
American law can relevant to all works, regardless of their country of origin.
Second, copyright laws of most countries have been generally “harmonized,” so that many fundamental provisions are somewhat similar around the world.
The basic structure of copyright law in the U.S. and in nearly 170 other countries is shaped by the requirements of the Berne Convention, a multinational treaty that sets “harmonized” standards for the law of each member country. As a consequence, some basic principles of American copyright law as described in this manual will hold true under the laws of many other countries.
Nevertheless, critical differences remain as will be examined elsewhere.
The manual also makes this general point: When in the U.S., apply U.S. law to the work you are creating or using. Similarly, if you are doing your research outside the U.S., you must apply the law of that jurisdiction.
As with many legal issues, you may need to investigate your particular questions more fully and possibly consult with an attorney with expertise in the law of the relevant country.
Various Copyright Exceptions
Although international treaties, most notably the Berne Convention, have the effect of generally harmonizing the law of copyright in different countries, national statutes on copyright exceptions remain highly diverse.
U.S. law, for example, includes a provision for showing works during classroom teaching and in distance education, but not all countries have addressed those questions in
their law or they have done so on disparate terms and conditions.
Educators and researchers in the U.S. often rely on the Fair Use Act exception. However, few countries have anything like fair use. For example, Germany’s Copyright Act strictly defines permissible quoting under different conditions, and it allows limited reproduction of materials for scholarly study and teaching.
The Brazilian Copyright Act does not provide a concept of fair use, but it does have detailed provisions for quotations and copies for education and research. Article 46, for example, allows passages or extracts of works to be reproduced for study, criticism, and related purposes.
Japanese law similarly relies on detailed statutory exemptions for quotations, rather than a concept of fair use.
U.K. law includes elaborate exemptions for some educational uses or scholarship, but generally, quotations are left to the less determinative concept of “fair dealing.”
Until recently, Canadian law specifically sanctioned the manual transcription of works onto blackboards and flipcharts in the classroom, and even then only under narrow conditions. In only the last few years have the statutes become more flexible. The law of fair dealing in Canada is currently the subject of extensive political debate and judicial action.
Copyright does not Apply to Everything
One of the most important effects of the Berne Convention is the requirement that each country must protect works that originate from any of the other member nations.
The Berne Convention specifies:
“Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.”
Despite this direct effort to create uniformity of the law, many differences among countries remain.
For example, Germany is often regarded among European counties as having a high standard of originality; the U.K. has a relatively low standard, generally requiring only that the work originates from the author who claims rights.
Consequently, some works may be protectable in the U.K., but not in Germany.
The struggle for the protection of databases underscores the differences among fundamental national laws. In the U.S., a 1991 decision from the Supreme Court left many collections of data without any copyright protection whatsoever.
Congress has considered (but not passed) legislation to create a new form of legal protection for databases. The European Union, by contrast, issued a directive in
1996 mandating each member country to grant copyright protection for databases “which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation. . ..
” The directive also requires E.U. countries to adopt additional legal protection against the extraction or re-utilization of the contents of databases if “there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” of that database.
Thus, a limited form of legal protection may prevent using some collections of data for research in Europe, but some of those same uses may be perfectly legal in the United States.
Automatic Protection and the Elimination of Formalities
The elimination of “formalities” as a precondition to copyright protection is a direct result of U.S. entry into the Berne Convention.
The treaty requires that member countries grant copyright protection without the prerequisite of formalities, such as registration and notice.
Some critics argue that that the U.S. has not fully complied, because American law gives the full range of copyright benefits only if the work in question was registered with the U.S. Copyright Office before the infringement took place.
Domestic and foreign copyright owners should seriously consider registering their works early if enforcement in the U.S. is at all necessary, desirable, or even imaginable.
Similarly, copyright notices are not required under the law, but including a notice on your work may be an advantageous practice. You will often see the statement “All Rights Reserved” in connection with a formal copyright notice.
This statement grew out of a requirement in the Buenos Aires Convention of 1910, which the U.S. and sixteen other countries in the Western Hemisphere joined.
That treaty and its requirements have been effectively superseded as each participating country has more recently acceded to the Berne Convention and its eradication of formalities. Yet statements about the reservation of rights continue to appear on numerous new publications for little apparent reason other than intimidation of infringers, ignorance, or legal inertia.
In the long run, “All Rights Reserved” has lost any significant meaning under the law, but its presence on a publication likely does no harm.
Works of Other Governments
While Section 105 of the U.S. Copyright Act states clearly that works of the U.S. government are not protectable by copyright, not all countries adhere to the same principle.
The law of the United Kingdom includes “crown copyright,” which generally grants copyright protection for the term of fifty years for published works produced by the British government.
Some countries parse the law in specific terms. Sweden exempts statutes, judicial opinions, and other official records from copyright,
but it allows protection for maps, musical works, and other more creative products of public employees.
Nevertheless, the public is licensed under the law to use those materials but must compensate the author. Japan also itemizes classes of governmental works that are without copyright protection, but generally provides for broad rights to quote from and reprint other materials produced by the government and intended for general dissemination.
The Japanese parliament specifically adopted a general rule allowing excerpts in order to alleviate the need to consult with the government
agencies for common uses.
By contrast, Australian law does not include any general exemption for governmental works, leaving most of them with full copyright protection.
Works that are not Fixed
The Berne Convention requires member countries to grant protection to original works, but it does not require that the work is fixed in a tangible medium.
Under Swiss law, a work is protected whether or not it is “fixed.” Therefore, an original, extemporaneous speech in Switzerland may have
copyright protection, while a similar speech that is not written in advance, recorded, or transcribed would not be fixed and would not be protected under American law.
Among other countries generally not requiring “fixation” of the work are Sweden and Brazil.
Such countries often face a dilemma in copyright litigation: A valid copyright may be asserted, but without tangible copies, the
evidence of its existence and specific attributes can be difficult to prove.
Granting copyright protection without fixation of the work is also highly problematic for works of visual arts, where the
image often needs to be embodied and perceived to have any meaning whatsoever.
Consequently, Japanese law and the law of many other countries specify that at least paintings, drawings, and cinematographic works must be fixed to have protection.
Copyright Duration Varies in Different Countries
In 1998, Congress extended the term of U.S. copyright protection by twenty years as a direct result of international developments. Although the Berne Convention calls for a general term of protection for 50 years after the author’s death, several European countries had chosen long ago to grant protection for 70 years after death.
Moreover, Germany and many other major countries follow a “rule of the shorter term,” whereby protection was granted in those countries to foreign works, but only for the shorter of either the term under German law or under the law of the country of origin.
Consequently, an American work was protected in Germany for only 50 years after the death of the author, while a German work had protection out to 70 years following the author’s death.
Faced with this inequality and with pressure from prominent copyright owners who wanted more years of revenue, Congress in 1998 granted the additional 20 years.
In 1993 the European Council issued a directive to member countries requiring them to adopt the general rule of life plus 70 years, and consequently, that term has become the norm in the twenty-eight countries of the European Union.
It is also followed in some other parts of the world. Brazil uses life plus 70, while Japanese law still follows life plus fifty.
Few Countries Have a Concept Akin to Fair Use?
The copyright laws of most countries provide various exceptions to or limitations on the basic rights of the copyright owner. Most of these exceptions are highly specific and apply only under a litany of detailed conditions.
Many statutory exceptions in U.S. law follow that model. But U.S. law also includes the highly flexible provision of fair use.
It is in many respects similar to fair dealing in the United Kingdom, and both concepts are rooted in common-law traditions that enable judges to make equitable decisions based on the facts of each case.
A Canadian statute emphasizes flexibility through its simplicity: “Fair Dealing for the purpose of research or private study does not infringe
The law’s specific meaning is left to judicial development, and a series of cases from the Supreme Court of Canada has given detailed meaning to the law.
The U.S. statute on fair use similarly provides only a general framework.
The flexibility and potential breadth of fair use sometimes have been problematic from the perspective of other countries, especially countries that base their laws on the system of civil codes, where statutory language generally defines the scope of permissible activities.
Despite the criticism of fair use from other countries, even civil-law nations are finding the need for doctrines that infuse some
workable flexibility into copyright law.
For example, Germany has a principle of “free utilization” that has allowed borrowing from existing work for parody and other artistic expressions.
Diverse countries are starting to evaluate whether they should adopt fair use. Israel, in 2007, enacted language that reiterates much of the language of the American provision.
Whatever the merits of or problems with American fair use, it is applicable law only within the jurisdictional borders of the United States.
Hence, if a researcher is in the U.S., he or she may apply fair use with respect to works that might have originated anywhere in the world. On the other hand, if that same researcher is in France, Japan, or anywhere else, the researcher must comply with the laws of that country, even if the materials in use originated in the U.S
Fair Use Act and Copyright Law
Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement.
Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor test.
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
TEACH Act and Copyright Law
The TEACH Act expands the scope of educators’ rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education.
For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom – still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students or make them available over the internet to face-to-face students.
The audiovisual works and dramatic musical works may only be shown as clips — “reasonable and limited portions,” the Act says.
This disparity, coupled with the considerable number of additional limits and conditions imposed by the statute, has led some educators to conclude that it’s more trouble than it’s worth to rely on Section 110(2). This statute’s complexity provides a new context within which to think about fair use: compared to the many conditions and limits contained in Section 110(2), the four-factor fair use test seems, simple and elegant.
That’s a good thing because even if we rely on and find 110(2) helpful, fair use will still figure heavily in our exercise of performance rights because putting anything online requires making a copy of it. The TEACH Act authorizes us to digitize works for use in digital distance education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection.
So, for example, where 110(2) authorizes the use of movie clips and the available DVDs don’t permit ripping (a prerequisite to creating a digital “clip“), you can digitize those parts using an analog tape; but you are not authorized by the TEACH Act to digitize the whole movie.
Fair use is almost always going to be the best source of authority for making copies in any context, but especially in conjunction with statutes like 110(2) that give us specific authorization that may not be sufficient in a particular case.
Fair use also remains important because the in-classroom activities (even if the classroom is virtual) the TEACH Act authorizes are a small subset of the uses of electronic resources educators may wish to make. It only covers in-class performances and displays, not, for example, digital delivery of supplemental reading, viewing, or listening materials.
For those activities, as well as many others, we’ll need to continue to rely on fair use. Remember, however, when relying on fair use, the fair use test is sensitive to harm to markets. This means that in general, where there is an established market for permissions, there will often be a narrower scope for fair use. In practical terms, this means that where it’s easy to get permission, for example, to put text materials on reserve, our reliance on fair use should be limited.
On the other hand, where it’s near impossible to get permission, for example, for music and movies where those industries are not yet very responsive to the needs of distance educators, the scope of fair use expands to permit reasonable uses of such materials for both local and remote students. So, fair use will likely be very helpful for using music and movies in the classroom and as supplementary materials.
Section 110’s role in the balance of interests has always been to permit educators to share works with their students, to show others’ works in class. In its exclusion of meaningful rights for digital distance educators, Section 110 was failing to carry its weight, so to speak. It had been, in effect, “written out” of the statute by being obsolete.
Now it has been expanded to permit educators to show materials the statute did not cover before; however, new Section 110(2) significantly limits who may display and perform how much of what materials and under what circumstances.
The TEACH Act checklist summarizes the 22 (!) prerequisites. Nevertheless, we may be optimistic that, together with fair use, this new statute will achieve Congress’ goal of facilitating the use of digital technologies in distance education.
TEACH Act Checklist
Ready to use the TEACH Act? Use this handy checklist to see
My institution is a nonprofit accredited educational institution or a government agency
- It has a policy on the use of copyrighted materials
- It provides accurate information to faculty, students and staff about copyright
- Its systems will not interfere with technological controls within the materials I want to use
- The materials I want to use are specifically for students in my class
- Only those students will have access to the materials
- The materials will be provided at my direction during the relevant lesson
- The materials are directly related and of material assistance to my teaching content
- My class is part of the regular offerings of my institution
- I will include a notice that the materials are protected by copyright
- I will use technology that reasonably limits the students’ ability to retain or further distribute the materials
- I will make the materials available to the students only for a period of time that is relevant to the context of the class session
- I will store the materials on a secure server and transmit them only as permitted by this law
- I will not make copies other than the one I need to make the transmission
- The materials are of the proper type and amount the law authorizes
- Entire performances of nondramatic literary and musical works
- Reasonable and limited parts of a dramatic literary, musical, or audiovisual work
- Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching
- The materials are not among those the law specifically excludes from its coverage:
- Materials specifically marketed for classroom use for digital distance education
- Copies I know or should know are illegal
- Textbooks, coursepacks, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session
- If I am using an analog original, I checked before digitizing it to be sure:
- I copied only the amount that I am authorized to transmit
- There is no digital copy of the work available except with technological protections that prevent my using it for the class in the way the statute authorizes