Obtaining copyright permission to use digital and online content can be both straightforward and complex. Developing best practices for legally using third-party content helps you stay copyright compliant and lowers your risk of copyright infringement. (Our Copyright Leadership Certificate program also helps you achieve these same purposes.) Below, we set out our copyright tips and strategies to help you create your own best practices.
Obtaining permission to use digital content, whether online or in a physical container such as a DVD, should generally be approached in the same manner as analog or traditional content.
Permission-wise, you need to consider the questions below in any digital project, whether:
If you first need to brush up on copyright law principles,
see our article The Balance in U.S. Copyright Law.
The questions below logically walk you through the copyright permissions process.
Digital and non-digital works are equally protected by copyright. Follow the rule that content on the internet is protected by copyright unless there's information associated with the content stating otherwise. Similarly, copyright protects digital content such as a movie on a DVD.
In the U.S., copyright protection lasts 70 years after the author’s death. In some countries, duration is life-plus-fifty. When using work in an online forum such as a website, blog or on social media, get permission for life-plus-seventy to cover yourself in all countries.
Once copyright has expired, you're free to use the work without permission. However, see below about moral rights, which are perpetual in some countries.
Adaptations and translations may be copyright-protected works even if they're based on public domain works. Generally, digitizing a work doesn't in itself result in a new copyright-protected work.
However, if it's more than a mere digitization and there are modifications to the work, there may be a new copyright-protected work. In this situation, you may need to obtain permission from the owners of both the original underlying work and the new digital work.
Digital works are, by their very nature, comprised of many layers of rights and different kinds of copyright-protected works. The following often consist of various types of works, from literary (including computer software/code) to artistic to musical to audiovisual.
You must clear each of these works when creating a multimedia work or reproducing a part of that work. Different works may have different copyright durations and different ownership and authorship. You need to get permission for each of the underlying works as well as the “final” work you're reproducing.
Generally, very small uses of works such as quotes don't require permission. There's no actual defined amount that wouldn't require permission, as it depends on the facts of each particular circumstance. Of course, it's more difficult to use a “small” portion of a photograph or painting.
Reproducing, publishing, performing in public, or adapting a work are copyright uses. Also, including content on a DVD, blog, digital archive or library are copyright uses.
Exceptions are free uses set out in copyright acts for limited uses and/or limited audiences. For example, some copyright acts have exceptions or special provisions for libraries, archives and museums. Some also have exceptions for educational institutions. Exceptions in copyright acts vary from country to country. Check your country’s copyright statute to see what exceptions exist that may apply to your exact use of content.
Fair use or fair dealing may apply to your situation as well. Fair use and fair dealing require a judgment call. Ultimately, only a judge in a court of law can make this determination. Most who apply fair use or fair dealing approach these provisions as risk analysis situations.
If so, are you modifying the work in a manner that may be prejudicial to the honor or reputation of the author? And does the author’s name appear in association with the work? In the U.S., moral rights only attach to authors of works of visual art. However, in many countries, authors of all copyright-protected works have moral rights.
Even mere digitization of a work may arguably result in a modification of that work and may harm an author's reputation. Thus, moral rights may have an even greater role in the digital world.
If possible, obtain a waiver of moral rights if you're using the work on a global basis. Social media uses are generally global uses. Not all countries allow for a waiver of moral rights.
Check your database of permissions to see whether you've already obtained permission to use the work in question in the manner in which you wish to use it. Make sure that a previous permission covers your current use.
You may have direct permission to use the work from its owner, through a copyright collective agreement or through a digital license with a database publisher or content aggregator.
If a fellow employee created the work, your employer/organization may be its owner; therefore you don't need to seek permission to use it. Also, you may have implied permission to use the work by virtue of its nature and availability — this is a copyright risk analysis you need to make.
Further, the work in question may be covered by a Creative Commons (CC) license. Again, check to determine what uses this CC license permits, and follow those terms and conditions when you use the work.
Some unique considerations may arise when negotiating the permissions you need for using content in a digital format. These include the following:
Whether you're clearing copyright in traditional or digital content, a checklist, written permissions policy or best practices document may help ensure your organization has a thorough and consistent approach to clearing digital permissions. This may be a standalone document or part of an intellectual property or copyright policy.
Life is complicated. Copyright law shouldn’t be. Copyrightlaws.com’s online Copyright Leadership Certificate program teaches you how to lower your copyright risks and avoid expensive and time consuming legal hassles.