Copyright law and contract law: which law applies to the use of a work?
Licenses for works you use: terms and conditions
Scholarly articles and e-books accessed from the Rutgers University Libraries website, digitized books accessed on Google Books, videos accessed on YouTube, articles viewed on the website of the New York Times, photographs available on Pinterest, tweets posted to Twitter, and other types of materials located on most Internet websites are made available on the basis of a license to authorized users or to the public. It is the terms of these licenses that inform you of the lawful uses that may be made of the materials and how to make responsible use of the websites that have made this material available.
Because contracts and licenses are enforceable over the provisions of copyright law, these conditions are the legal framework to consider when using licensed content. There are various types of licenses:
- Non-negotiated licenses are typically associated with Internet resources. They are also referred to as mass market licenses:
- Click-wrap licenses generally require the user to agree to the terms and conditions of the website by clicking “OK” or “I Agree” on a button before entering the site.
- Browse-wrap licenses typically display the terms and conditions associated with the website through a hyperlink indicating that by using the website, you agree to be bound by those terms. No action is required otherwise to indicate agreement with the terms and conditions.
- Shrink-wrap licenses are license agreements contained inside the sealed packaging of tangible products that are agreed to by opening the product.
- Open content licenses, such as Creative Commons licenses associated with the open Internet, inform the public up front of what uses may be made of a work. Creative Commons is a revolutionary flexible licensing system by which authors and creators make known which rights they reserve, enabling freer use of works without having to track down copyright holders. Creative Commons offers to authors and creators six major licenses and two public domain licenses to choose from when making their own works available to the public. Read the terms of the license.
- Rights statements, often used in university digital repositories, are not licenses but function in a similar way by providing instructions on what uses may be made of works deposited in a digital repository. A rights statement is generally associated with each document in a digital repository.
An example of a rights statement in RUcore, the Rutgers open access digital repository, is:
Rights: Rutgers University owns the copyright in this work. You may make use of this resource, with proper attribution, for noncommercial educational, scholarly, or research purposes only. Please contact Rutgers University Libraries to obtain permission for other uses.
Licenses govern many, if not most, of the resources made available through the Internet. It is your responsibility as a faculty member, an instructor, a staff member, and a student, to read the terms and conditions in databases and on websites before making use of works in ways that implicate copyright law. If there are no terms and conditions on the site, copyright law still applies.
The Internet contains both lawfully posted content and unlawfully posted content. Also sometimes websites contain false terms and conditions. The Internet contains lots of material posted illegally, often for the purpose of making money from advertising revenue. This is the problem of “ad-based piracy” and it can be confusing. People have to rely on their instincts and common sense in judging whether a website is legal or illegal. Often an initial reaction will indicate to you that a site is not operating legally. Beware of language like “use at your own risk,” or “this work/image has additional restrictions” or contradictory language in the terms and conditions.
Terms and conditions as copyright management information
Terms and conditions on websites are “copyright management information” as defined section 1202 of the U.S. copyright law. It is illegal, without the authority of the copyright owner or the law, to remove or alter any copyright management information associated with works you wish to use. It is also illegal to distribute works or copies of works knowing that copyright management information has been removed or altered without the authority of the copyright owner or the law.
Instructors especially need to be aware that when they wish to use content obtained from Rutgers University Libraries or other lawfully accessed databases, they should not separate the content from the terms and conditions on the database site. This is why most library subscription databases, and many Internet sites that provide material appropriate for teaching, prohibit or discourage copying of articles into a course management system, but instead authorize users to provide a link to students. Instructors should link to database and website content rather than post a copy into a course management system. Students may access the content directly from the source. See section on “Copyright in Teaching” for more information.
Contracts and licenses for your copyrighted works
Contracts and licenses also come into play in academic research and publication. Graduate students license their theses and dissertations to open access repositories such as RUcore when completing degree requirements, and many also license their dissertations to the company ProQuest which holds a historical archive of theses and dissertations in its Dissertations & Theses Database. Students also sign contracts with journal publishers and book publishers to get their works into publication. See section on “Copyright in Academic Research and Publication” for more information on contracts in your research and publication.