The Relationship between Copyright and Creative Commons
CC licenses are licenses that work with copyright. They only apply when copyright applies to an item. CC licenses don't add additional restrictions to copyright, but rather make sharing and creating derivatives easier for rights holders that wish to allow for easier use of their works. The next few sections will discuss copyright in more general, global terms, but you can view United States copyright law here.
Copyright law already has instances of exceptions and limitations. For example, if you are using a work and your use complies with Fair Use, Fair Dealing or the Marrakesh Treaty, then you do not need to rely on a CC license for that use since it is already allowed under copyright law. Another exception would be when an item is in the public domain, CC licenses cannot apply to these works since copyright does not restrict their use.
The CC license only covers the copyright privileges held by the person who applied the CC license. So if you created something that is considered work for hire, only the institution that holds the copyright can apply a CC license. Or if you have created a presentation that uses copyrighted photos that you have permission to use, a CC license that the creator applies would only apply to their presentation, not the photos.
It is important to remember that CC licenses are copyright licenses as they continue to work within the framework of copyright law.
The Purpose of Copyright
Copyright gives exclusive rights to creators (or owners) that no one else can copy, publicly perform, distribute, adapt, or do other things without permission of the copyright holder.
These protections last a long time, in the United States it is the life of the creator plus 70 years (for works created after 1978 or unpublished works). To view a full list of copyright terms around the world, visit this Wikipedia page.
There are two primary rationales for the purpose of copyright: Utilitarian and Author's Rights.
The Utilitarian rationale is that copyright provides an incentive to creators through either social or monetary gains.
The Author's Rights rationale is that copyright protects and recognizes the deep connection between creators and their works. Author's Rights is connected to moral rights, which helps creators to know that their work will be attributed to them and that the integrity of their work will be preserved.
These two rationales can be seen in the exclusive rights given to creators known as economic rights and moral rights.
Economic rights allow copyright owners to profit monetarily from others using their works. Laws vary from country to country, but most countries grant the following exclusive economic rights:
Moral rights are derived from an author's tradition. They give the creator the right to protect the integrity of the work and the right to be recognized as the creator. These moral rights are generally distinct from copyright law, so that will mean that even if a work is no longer protected by copyright and is in the public domain, an author would still need to be given attribution for their work.
What Can be Protected by Copyright?
Copyright protects original literary and artistic works. This covers a wide range of creations. Here are some of the common items that can be copyrighted:
Certain things cannot be protected like facts or ideas.
Other Intellectual Property Types and Their Protections
There are other types of laws that protect different types of intellectual property.
Patents will give inventors a limited monopoly on their inventions. Patent holders will have exclusive rights to make, use, sell, or import their invention.
People can also obtain design patents for an object that is functional rather than artistic. You see design patents in play with packaging, automobile designs, or even the Statue of Liberty.
Trademarks protects signs, designs, or other recognizable expressions so a consumer will know a product or service is coming from a known source. This can include things like logos or name brands.
Trade Secrets are another type of intellectual property can they can include things like recipes, a process, or a list of customers. With a trade secret there is an economic value to the intellectual property not being known and reasonable efforts can be made to keep the information secret. However, if the secret gets out, then it is no longer protected.
Lastly, Geographical Indications are generally used on food and agricultural products. It ensures that something can only be given a name if it was grown or produced there. Examples include: Prosciutto di Parma ham from the Parma region of Italy, Florida Oranges, and Irish Whiskey.
How one Generally Receives Copyright
Copyright is automatic and goes into effect once something is created. Some countries, including the United States, require that the creation be in a fixed form.
Keep in mind that the copyright holder may not always be the creator. In some cases, the owner may transfer their rights to someone else, like a publisher. Or in some instances if the work is created as part of your job, then your employer may hold the copyright - this is frequently known as "work for hire." Independent contractors may also not hold the copyright to their creations, depending on the nature of their contract. Sometimes people working in academia may also not hold the copyright for their works. Lastly, if you have co-created a work with another person or people, then you may have a joint copyright.
The Public Domain
The public domain contains a body of works that are not protected by copyright. Works can enter the public domain in a variety of ways.
Different countries have different copyright terms, so a work may be in the public domain in one county but not in another. It is important to know the copyright term for where you intend to use the work. However, you need to be mindful of other intellectual property restrictions that might still be on the work. This might include things like a trademarked brand.
Once the work is in the public domain, there are many different ways that you can use, share, and adapt that work. When a creator creates an adaptation of a work in the public domain that creator retains copyright on the portions of original work that they have added. They do not get to claim rights on the original work that is in the public domain.
You can find works in the public domain in a variety of places (see the list on the page for Finding and Attributing CC Licensed Materials). But sometimes it can be hard to tell if the work is no longer protected by copyright. Just because doesn't have a copyright symbol ©, doesn't mean the work is not protected. Creators who have given up their copyright may place a public domain designation or CC0 / CCZero symbol on their works to let other know they are free to use.
Some final considerations concerning using public domain works:
If moral rights don't expire in the country where the public domain source is being used, then you will still need to credit the original author of the work.
If the work was digitized by a gallery, library, archive, or museum, it is good practice to state the provenance for the work by giving credit to the institution and linking back to the source.
For works that make up indigenous cultural heritage or traditional knowledge that might be technically in the public domain, it is good practice to check with the custodians of these items to see what types of use they prefer.
Exceptions and Limitations to Copyright
There are some exceptions and limitations that are written into copyright laws that give some rights to the public, even while the copyright holder has exclusive rights over some matters.
These exceptions and limitations allows people to use copyrighted works in specific ways. This can include: criticism, parody, access for the visually impaired, certain educational contexts, and more.
The Berne Convention which helps to establish copyright legal norms around the world offers a three step test for implementing exceptions and limitations into national copyright laws. In article 9(2) of the convention it reads, "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."
Countries approach adding exceptions and limitations in different ways. Some have explicit language that lists what activities are excluded from copyright protections. This approach tends to be found in countries that follow a civil law tradition. It can provide clear examples of what is and is not allowed, but leaves less wiggle room for the public.
Other countries provide more flexible guidelines for what is allowed and then allow the court system to determine specific cases. This approach is found in countries that follow a common law tradition. This allows the law to be more adaptable, but it provides much less certainty that a use is permitted. We see this approach utilized in the United States in what is known as the Fair Use Doctrine. Fair Use is made up of four factors:
Fair Use provides a substantial exception to copyright, however the user has to use these broad guidelines to determine if their use is allowed.
Countries also allow for licensing which permits others to use a copyrighted work in certain ways without permission by paying a fee.
Exceptions and limitations are an important feature of copyright law that allow for some public use while the copyright is still in effect.