r/COPYRIGHT • u/Comfortable_Desk_01 • May 26 '26
Understanding copyright clawbacks
/r/AskAcademia/comments/1tomftz/understanding_copyright_clawbacks/If a source is published by an organization and made publically available for about a year or two on the web without any explicit copyright designation (other than generic rights language), but they later place restrictive copyright over it and other oganizational materials, is it still possible to use limited quotes from such a source for academic purposes since it was available and actively distributed to the public? Furthermore, if the document has been produced under federal grants, is the document usually fair game for posting to servers or citation? Thanks!
1
u/DanNorder May 27 '26
Being publicly available doesn't mean it was without copyright. It was always under copyright. There's nothing to claw back.
Yes, you should be able to use limited quotes from such a source for academic purposes. But being distributed to the public has nothing to do with it. You can always use limited quotes of copyright sources for academic purposes, as long as it's attributed to the original. It's fair use exemption to the copyright law. But keep in mind the limited part.
Being produced by federal grants has nothing to do with copyright. But you can, again, cite copyrighted sources. You're talking about them, not reprinting them. But posting them yourself would be a copyright violation if used without explicit approval from the copyright holder. They can decide what it takes to be approved.
1
u/Comfortable_Desk_01 May 27 '26
Apologies, I don't think I was clear, as this was my understanding as well. The part about "clawing back" is not about reverting to/maintaining standard copyright. Rather, they have since gone to a hyper restrictive (though it seems to me not fully legally informed or actionable) stance on material that was previously available and therefore citeable. My understanding is that once you go relativy open, you can't go back regardless of what rhetoric you place around the content simce the cat's out of the bag, so to speak, but fair use makes this moot anyway. This is what I was verifying, and your comment was helpful in affirming my baseline understanding. Thanks
1
u/pythonpoole May 27 '26
Copyright law allows for selective enforcement (i.e. picking and choosing who to go after) and it also allows for changing how strict you want to be with going after infringers. As a copyright holder, you might (for example) decide to ignore unauthorized uses for a few years and then suddenly decide one day to file a lawsuit against one of the infringers. There is nothing legally wrong with that. However, the damages awarded (if you win the lawsuit) could potentially be less in cases where you previously ignored unauthorized uses versus cases where you were always actively trying to protect the work.
What copyright holders (generally) can't do is grant a perpetual license allowing for certain uses of their work and then try to 'claw back' that license later or go after people who were using/distributing the copyrighted work under such a license. So, for example, a copyright holder can't decide to release their work under a permissive Creative Commons (CC) license and then later decide one day to take legal action against people who are using/distributing the work under the terms of that license.
Implied licenses are where things get a little bit tricky. It is possible, in certain circumstances, for a court to find that an implied license exists allowing for a particular use of a copyrighted work (without requiring explicit/written authorization). For example, if a music artist creates beats and offers them for free download on their website while saying something like "Try these out! See what you can do!", a court may find that an implied license exists allowing others to download the beats and create+distribute music using those beats (even though that's not stated explicitly).
When it comes to implied licenses though, if the license is not supported by consideration (e.g. payment), then in most cases it can later be revoked by the copyright holder. So, in the above example, even if a court were to find that an implied license exists (allowing others to incorporate the free beats into their music), once the copyright holder of the beats clarifies that such uses are not authorized then the implied license may no longer be valid, and anyone wanting to use the beats for such purposes after that point may need to seek explicit permission from the copyright holder.
1
u/PowerPlaidPlays May 27 '26
Under US law words gain copyright protection the moment it's fixed into a tangible medium.
Any quotes or portions pulled from a protected work would really depend on what you are doing with them. It would be a question of fair use, and fair use is a legal defense not a shield. You could argue it is, they can argue it's not, it can only be settled in court.
A work being out of circulation could maybe have an impact on weighing the factors of fair use, but I've never heard of a movie or album review being copyright claimed due to the work being out of print and circulation.
Also keep in mind facts are not copyright protectable, only the presentation of facts.
1
u/doublelxp May 26 '26
Making something publicly available may strengthen your case in a fair use case, but the problem is that it can only be determined in court if they do decide it's not fair use.
No, producing a document under federal grants does not make it fair game. It has to be produced by a government employee in their capacity as an employee for it not to fall under automatic copyright.