The law is "late"
There is a discrepancy between what we want to do (usage) and what we are allowed to do. We use licences for cases where the law does not go far enough.
As the UK Copyright Licensing Agency (CLA) puts it: "If the material you wish to reproduce does not fall within one of the [copyright] exceptions, or if you are unsure, you should contact the copyright owner, or someone authorised by them to grant the necessary permission." A CLA licence will usually cover you for a wider use than the copyrights exceptions, because they provide a blanket licence where rights have been cleared for specific uses (the CLA is "someone authorised by the copyright holder to grant the necessary permission"). So before copying a work, check in this order: your CLA licence, your electronic licences, exceptions to copyright law.
Copyright duration and foreign works
When copying/using a work, you would ask yourself whether the work in question is covered by copyright, and if so, who is the copyright owner.
If the work is potentially covered by copyright (I'm not going to define this here - go see the details on the IPO website) then you need to determine whether it is STILL in copyright; if the copyright has expired it's in the public domain and you're alright to use it.
|Beach promenade in Pondicherry|
CC BY-SA Sanyam Bahga
Ooh, yes there is a public domain calculator! Did I not mention it? Sorry... Temper your enthusiasm though: the Europeana calculator is a factual one, that asks you the right questions to guide you through the different copyright rules. If you want to just be able to enter the name of a work and get an (almost) yes or no answer, try the public domain calculator developed using metadata from the French National Library (beta version at: http://www.calculateurdomainepublic.fr/)
Orphan works risk management
You have established the work you want to use is still in copyright, or you have not been able to establish that it is definitely in the public domain. You now need to obtain permission from the copyright holder (if the use you want to make of the work is not covered by your CLA or other licence, or any copyright exceptions, as mentioned above). Finding a copyright holder is not as easy as it sounds, which is why a lot of works are actually "orphan works".
|Oliver Twist at the orphanage|
Illustration by James Mahoney (1810-1879)
Let's consider another example: you've found an image you want to use (e.g. on the Internet), it looks like it may still be under copyright, but you are not sure who the creator is. That's where you will need to do a bit of risk management. If you use this "orphan" image nevertheless... what are the chances of you getting caught? If you get caught, what will it cost you? Are you ready to face the reputational damage, not just to you personally but to your employer/organisation, linked with being sued for copyright infringement? Well, personally (my boss will be pleased to hear), I'm not.
To help you assess the risks, the JISC-funded Open Educational Resources IPR support project offers a risk management calculator. It gives you an indicative risk level for using orphan works, depending on what type of work you are dealing with, whether it was originally created for a commercial purpose, the licence under which you intend to offer it and how much of an effort you have made in tracing the copyright holder.