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Copyright & Digital Projects: FAQs

Creating and publishing a digital project? Discover a workflow for answering copyright and other law & policy-related digital publishing questions.

I'm citing my sources, so I don't need permission to include excerpts from them, right?

Attribution is separate from permission. You of course need to cite your sources, but this is separate from the question of whether you need a rights holder's permission to include excerpts from or copies of those sources to begin with.

As a copyright holder, the author has exclusive rights to (among other things) reproducing the work. If you want to reproduce still-in-copyright work in your project, you'll need to decide whether it's fair use or get the copyright holder's permission. See the Understand Copyright Basics tab for more info.

Is it in the public domain if I find it online?

Publication online implies nothing about whether the work is in the public domain.

Content that appears online--and thus is publicly accessible--may very well be copyrighted, and thus you must comply with copyright law when using it. "Public domain" instead refers specifically to work that no longer is entitled to copyright protection (i.e. the copyright protection expired), or works for which copyright protection was never available (e.g. U.S. Federal Government works, facts/ideas, etc.). See the discussion of Public Domain in Step 1 for more information.

Do I need permission to link to content, rather than include it?

No! It is not an infringement to link to content that has been uploaded lawfully.

If, however, you have reason to believe that the content you're linking to was uploaded in violation of copyright, then you should not link to it. Doing so could be construed as contributory infringement. In those circumstances, work through the Step 1 questions with respect to use of legitimate copies of the content, rather than linking to infringing online reproductions.

I was the author of the work I want to use, so do I still need permission?

Maybe. If the work that you want to use is something you previously wrote, you may no longer hold copyright over it if you assigned copyright to a publisher--making it important to go through Step 1 questions.

Am I allowed to make multiple books/articles out of my scholarship?

As copyright holder of your scholarship, you're entitled to make derivative works and adapt or rearrange your work as you see fit. Though, a journal may want you to edit your work a bit to make it something different for the journal iteration. Every version or adaptation of your work is a separate work in which you hold copyright.

Keep in mind, though: If you publish journal articles that are merely excerpted from your digital project without modification, you should be careful about assigning copyright to the journals. If you later wish to reuse the same language in, say, a manuscript for a book, you don't want to have transferred your rights to that iteration.

Can I text mine from databases or websites?

Text mining for non-commercial scholarship is likely fair use, but we have to first distinguish between using materials to text mine vs. subsequently republishing what you downloaded or scraped. Subsequently re-publishing the content, itself, rather than just your analysis of that content might not be fair use.

Next, remember that even if text mining is fair use, we have to consider whether we've signed contracts that constrict what would otherwise be fair use.

So, here is a way to think about all this:

  • Mining databases or corpora to conduct scholarly analysis, without subsequently republishing the contents of those databases or corpora, can be fair use under Author's Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014).
  • Irrespective of whether use would be fair, however, you may have consented to contractual arrangements that override the fair use that you would otherwise be able to make.  For example, a database or website you are using might regulate text mining, or might allow text mining but prohibit sharing excerpts from the materials that they made available for mining.
  • Therefore, it's important to carefully read any database or website terms of use or licenses as you prepare your project for publication.

Are unpublished archival materials protected by copyright?

If they contained authored, original expressions, they were, and maybe still are, protected by copyright. But like any other copyrighted work, they may have entered the public domain. 

Unpublished works subject to copyright protection. However, the duration of copyright for unpublished works can differ based on whether they are signed, anonymous, etc. For more on copyright length for unpublished works, consult the discussion of Unpublished Works (Ch. 3.2.1) in Peter Hirtle's Copyright & Cultural Institutions book; see also 17 USC §§ 302, and 303

Keep in mind, too, that while unpublished works are not excluded from your use as fair use, what constitutes fair use of unpublished works may construed more narrowly by a court. 

Are unpublished foreign works protected by copyright?

They were at some point. Whether they still are depends.

The length of protection in the U.S. for unpublished material is the same regardless of where the work was created, or what nationality the author was (17 USC § 104). If the copyright term for the unpublished work has expired, it's in the public domain for purposes of publishing your scholarship in the U.S.

How long are published foreign works protected by copyright?

If you're looking to use foreign works in your scholarship being published in the U.S., the general rule of thumb is that anything first published in a foreign country prior to 1923 has entered the public domain, and most everything else published abroad since then remains protected by copyright.

The more complex answer is that, for foreign works: Based on the nationality of the author and place of publication, one can calculate whether the foreign material has entered the public domain. Though, you don't have to--you can use the wonderful Cornell University Public Domain chart prepared by Peter Hirtle. Check out the section "Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living Abroad."

What if I just use facts?

Facts are not subject to copyright. It's okay to read an article or other work, reformulate the concepts in your own words, and include this in your scholarship. But do not just paraphrase closely; the work you produce should reflect your own original creation.

I'm having trouble making a fair use decision. Can you help?

Ultimately, the determination of whether something is fair use must be made by you, rather than the Library. But if you are a UC Berkeley faculty, staff, or student, we are here to help talk through how fair use works, and answer questions about resources as you work through the four factors. We would be delighted to meet or speak with UCB students, so please contact the Scholarly Communication Officer.

For additional assistance making fair use determinations, check out:

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