The if/how exceptions and limitations on copyright and CC licensed works

In the U.S., copyright law has specific limitations and exceptions that balance creators’ rights with the public interest. While copyright law grants creators exclusive rights over their works, it also includes exceptions and limitations to promote innovation, education, accessibility, and fair use. These are typically written into the law either through specific exclusions or flexible guidelines, and the courts interpret these exceptions on a case-by-case basis.^[1]

While these exceptions and limitations may vary in other countries, here’s an overview of the key ones for the United States:

Fair Use

Fair use is one of the most significant exceptions to copyright protection. It allows for the use of copyrighted works without permission under specific conditions. The law lists four factors to determine whether a use qualifies as fair use:

• Purpose and character of the use: Non-commercial uses or uses for educational, research, or criticism purposes may be favored.
• Nature of the copyrighted work: Using factual works is more likely to be considered fair use than using creative works.
• Amount and substantiality of the portion used: Using a small portion of a work, especially if it’s not the “heart” of the work, can favor fair use.
• Effect on the market value: If the use harms the market for the original work, it’s less likely to be deemed fair use.

Common examples of fair use include commentary, criticism, news reporting, teaching, scholarship, and research.^[2]

Public Domain

Works that are in the public domain are free to be used by anyone without permission. These works fall into the public domain either because their copyright has expired or because the creator has waived their rights. Works like old literature, music, and art are often in the public domain and can be used without restriction.^[3]

Exceptions for Libraries and Archives

Libraries and archives can make copies of copyrighted works for preservation, research, or other limited purposes.^[4]

Educational Use and Distance Learning

There are provisions allowing limited use of copyrighted works in educational settings, such as:

• Face-to-face teaching: Teachers can use copyrighted materials in class for educational purposes.
• Distance education: Under certain circumstances, materials can be used in online classes, with restrictions to prevent redistribution and to ensure compliance with the guidelines.^[5]

Exemption for People with Disabilities

Copyright law also accommodates individuals with disabilities. For example, works can be converted into alternative formats, such as braille, audio, or large print, to make them accessible to individuals who are blind or have low vision, without violating copyright. This exception ensures that people with disabilities have the same access to educational and cultural resources as others.^[6]

Role of the Court

Ultimately, courts make the final determination about whether a particular use is permissible. Courts evaluate the facts in each case, weighing factors like the extent of the copying, its purpose, and its impact on the original work’s market value. Judges apply legal standards, balancing the rights of copyright holders with public interests, like access to information, creativity, and knowledge.^[7]

How do exceptions and limitations to copyright affect CC licensed works?

Exceptions and limitations to copyright do affect Creative Commons (CC) licensed works, but how they interact depends on the specific circumstances. While CC licenses give specific permissions, they don’t replace copyright law or its exceptions. So, even if a work is CC-licensed, the usual copyright exceptions still apply.

Here are 3 examples:

• Fair Use (and Similar Doctrines in Other Countries)
  • Fair Use in the U.S.: If a work is licensed under a Creative Commons license, users still have the option to rely on fair use (in the U.S.) or equivalent exceptions. This means that, even if a work is licensed under a CC license, a person may be able to use it in a way that is not explicitly allowed by the license—if the use qualifies as fair use.
  • Example: Let’s say someone uses a CC-licensed image in a transformative work (e.g., a parody or commentary), and the use qualifies as fair use. This may be permissible even though the license requires attribution and limits commercial use, because fair use could override the CC license in certain cases.
• Public Domain
  • Creative Commons licenses do not affect the status of works in the public domain. If a work is in the public domain (whether due to the expiration of copyright or through a creator’s use of the CC0 license), it is free for anyone to use without restriction.
  • Example: If a work is marked as CC0 (waiving all rights), the creator has relinquished their copyright claims, and the work is treated as public domain. The copyright exceptions for public domain works still apply, such as the ability to freely use, adapt, and redistribute the work without needing to attribute or adhere to specific CC license terms.
• Non-Commercial Use
  • CC Non-Commercial Licenses (e.g., CC BY-NC) restrict use of the work for commercial purposes. However, if a user believes their use of the work falls under an exception (like fair use for commentary or education), they could argue that the use is permissible, even if it’s technically commercial.
  • Example: Someone might argue that their use of a work under a CC BY-NC license is for educational purposes, and thus, the non-commercial restriction doesn’t apply because their use qualifies as fair use, even if it’s technically a paid course.^[8]

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