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Investigating a Work’s Copyright Status

The internet is a goldmine of information and near-limitless access to content. It’s tempting to Google for an image that you need, and then re-use content without properly checking who owns it. You might also want to reproduce video or written works that were produced many decades ago. But republishing other people’s work is potentially illegal, and carelessness carries the same penalties as deliberate piracy.

If you publish stolen content on a website, that content could be removed from your web host’s servers. The Digital Millenium Copyright Act compels web hosting companies to remove the content immediately, and ask questions later. Remember: the DMCA will apply to you if your website is hosted in the US, so this law has international repercussions.

If you are beyond the reach of the DMCA, copyright theft could land you with a court summons, a fine, or a Google penalty, depending on what you use, and how you share it. Even if you didn’t intentionally steal something, you won’t get away with it when you’re caught, so proper investigation is critical.

Some of the differences between different countries are nuanced, and difficult to summarize, so the following guides and links apply mainly to the US.

Basic Principles of Copyright

Copyright for a work is not internationally applicable, and rules differ from country to country. Treaties and conventions have been adopted between countries to try to smooth out the differences and create a consistent system. These treaties help to make different countries’ laws compatible with each other, which can help you to determine the copyright status of a work more easily.

You’ll need to know the territory where the work was published. That will help to determine its status, and your rights to use it. Additionally, knowing the date of publication will give you a clue as to whether its copyright is still valid, or whether it has lapsed, which would place the work in the public domain.

It’s safe to make the following assumptions:

Anything that you did not create is likely to be copyrighted to someone else, even if there is no copyright notice alongside it.
Even if a work is not formally registered, it would have been granted copyright protection automatically when first published, assuming it was published in a country signed up to the Berne Convention.
There are some notable cases where works can be used freely. For example, under a particular license, you may be permitted to re-use something in a non-commercial context.
Copyright lapses after a certain number of years, although time limits vary.
Fair Use is a handy principle that allows for limited publication of copyrighted material for legitimate reasons (for example, a photocopy of a few pages from a textbook for study purposes). This may or may not apply to you.

The issue of registration is also a crucial point. In the US (and all Berne countries), it isn’t necessary for the creator to register a work with a national Copyright Office in order for it to be copyrighted. But under US law, registration is essential if copyright is infringed and the issue goes to court. What’s more, if the work was registered within 3 months of publication, the copyright holder can also seek additional damages if copyright is infringed.

In practice, it’s sensible to engage a lawyer before republishing anything that you aren’t sure about. International copyright cases are usually complicated, and penalties can range from $300 to $15,000 per work, plus legal fees.

How to Check Copyright

In the US, copyright status differs according to creation date, renewal date, and whether the item was formally registered. Unregistered works also come under different laws, depending on whether they were created by individuals or companies. The US Copyright Office recommends that you familiarize yourself with four key laws, initially:

The Copyright Act of 1976 (PDF)
The Berne Convention Implementation Act of 1988 (PDF)
The Copyright Renewal Act of 1992 (PDF)
The Sonny Bono Copyright Term Extension Act of 1998 (PDF).

For almost a century, the US Copyright Office kept detailed records about the copyright status of thousands of works. These records exist on a mixture of formats, including paper catalogs, microfiche and online records.

The US Copyright Office retains information on all registered works from 1870 until the present day, and its website provides more information on accessing different types of records. Some are available online, whereas paper and microfiche catalogs (known as Catalog of Copyright Entries) are also provided at selected libraries.

Some of these older records are currently being digitized. 674 of the catalogs are available online at archive.org, too.

If you’re lucky enough to find a match within the US Copyright Office archive, you could find your copyright query is resolved faster than you expected. But there are a few important reasons why old records — including the Catalog of Copyright Entries — cannot be completely relied upon:

Old records don’t take usage rights into account. So while you may find the copyright holder’s name, you won’t know anything about rights or licensing.
Contact details for copyright owners are very likely to be incomplete. So simply knowing the name of the copyright holder may not get you very far in determining the copyright status.

Conducting a search at the US Copyright Office

For complex queries, you may need to visit the US Copyright Office in person, at the Library of Congress. Depending on the level of detail you need, you may have to pay a fee to retrieve relevant documents.

You’ll also be charged a fee if you don’t search for things yourself, although staff will help you to self-serve if you want to try.

Fees are complex, and it can take days for information to come back, so this isn’t necessarily the most agile method of getting copyright information. In addition, the Copyright Office can’t promise a conclusive answer to every query. But sometimes, it’s the only way.

If you do need to conduct a search, or pay a fee, see the US Copyright Office’s paper: How to Investigate the Copyright Status of a Work.

Check Copyright in Other Countries

Just because something is out of copyright in the US, that doesn’t mean it is out of copyright everywhere in the world.

Many countries are signed up to international copyright treaties. The Berne Convention is the most important, since it supersedes many other conventions, and has the widest membership. The World Intellectual Property Organization Copyright Treaty covers important copyright conventions relating to digital publication.

Our Beyond Berne resource provides information about some other important copyright treaties.

Additionally, some countries have their own national copyright office. For example, the UK Copyright Service Information Center provides information about copyright, trademarks, and patents in UK law.

Other Resources

US Copyright Digital Slider: choose the date of the work, and its publication status, and this slider gives an indication as to its likely copyright status now.
Copyright Term Calculator: use this wizard to determine the likely copyright status of a work.
EU Public Domain Calculator: this calculator helps to determine whether a work created in an EU country is in the public domain now.
What is the Digital Millenium Copyright Act: this article touches on some of the ways DMCA cannot be used in disputes.
Definition of Fair Use: provides the UK Copyright Service’s ideas about Fair Use.
Definition of Fair Use provides the US Copyright Office’s ideas about Fair Use.