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Wednesday - September 20, 2017
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Copyrights

As prolific creators and users of copyrighted works, the individuals within the university community need to know the effect that copyright laws and university policies have on the works they develop and use. Knowing what a copyrighted work is, who owns it and what exactly they own, is important in understanding your rights and the limitations of your rights in those works.

Hopefully, discussion of the following topics will help in your understanding of copyright law and the application of Iowa State policies to copyright materials developed at the university.     

Copyright Basics  

Copyright refers to the body of laws that convey ownership in the expression of an original work of authorship at the time it is fixed in a tangible medium. No formalities are required in order to obtain copyright protection. Once a work of authorship is fixed in some form that can be communicated, U.S. copyright laws protect it.

We traditionally think of a work of authorship as written text such as a book or a journal article, but works of authorship include software, music, photographs, drawings, web sites, and even email. As the world's technology advances, the interpretation and application of copyright laws becomes more challenging. For example, sorting out copyright issues related to the writing of a textbook by a single author is simple when compared to a multimedia, web-based educational course involving multiple authors (faculty, student, and staff), the use of content from a faculty's previous lectures, the use of content from a textbook, and the use or development of audio and video content.

With some limitations, the copyright laws give the copyright owner the right to and authorize others to reproduce, distribute, perform, and display the work and to create derivatives of the work. Anyone performing any of these rights without the owner's permission is said to "infringe" the owner's rights.

Copyright laws exist internationally, and the United States is currently signatory to various treaties that accept international copyright conventions. The effect of these treaties is to give national treatment for the member countries.The U.S. Copyright Office is an excellent source for information on copyright. Following are some of the major topics discussed at the Copyright Basics' site, http://www.copyright.gov/circs/circ01.pdf:

  • What Is Copyright?
  • Who Can Claim Copyright
  • What Works Are Protected?
  • What Is Not Protected by Copyright?
  • How to Secure Copyright
  • Publication
  • Notice of Copyright
  • Unpublished Works
  • How Long Copyright Protection Endures
  • Transfer of Copyright
  • Copyright Registration

Using copyright works of others

Our forefathers wrote Article I, Section 8, Clause 8 of the U.S. Constitution with the purpose of giving Congress the power to write laws to promote the progress of science and the useful arts by providing certain property rights to the author for a limited time. Consequently, Congress gave specific rights to the copyright owner but enacted exemptions to those rights to encourage the free flow of information and the ability to build upon the knowledge of others.

There are several specific provisions within the copyright law limiting the scope of the owner's rights. If a use of another's copyrighted work falls within these provisions, the user has not infringed the copyright owner's rights. Unfortunately, these laws are not simple to interpret. Consequently, case law has been an important source of direction in understanding the U.S. Code. Each use of another's work must be carefully analyzed to determine if such use will fall under one of the exceptions. The fair use exemption to the owner's rights is the most familiar of the exemptions. Also, if the work is in the public domain , it will not be protected by copyright and may be used without copyright permission. Other exemptions used within a university setting apply to libraries (Section 108 of the Copyright Act) and to the display and performance within the classroom (Sections 110 (1) and 110 (2) of the Copyright Act). Section 110 (2) is the new "Teach Act," which was enacted in 2002 and is discussed below. More information on the copyright exemption for libraries can be found at the copyright office website.

Fair Use

The copyright law provides circumstances in which copyrighted materials may be used without the owner's permission and yet not infringe on the owner's rights. The fair use exemption to the owner's rights is frequently utilized within a university setting.

To determine whether use of a copyrighted material falls under the fair use exemption, a detailed analysis should be conducted and each of the following four factors must be considered:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: other examples of purposes and characteristics would be personal, criticism, commentary, news reporting, or parody;
  2. The nature of the copyrighted work: factual or creative in nature, published or unpublished;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; substantiality is a qualitative measure, amount is a quantitative measure; and
  4. The effect of the accused use on the potential market for or value of the copyrighted work.

It is critical that all four factors are considered and reviewed. Each factor may be viewed on a spectrum, with fair use being at one end and not fair use being at the other. A common misconception is that if my purpose is noble, say for nonprofit educational purposes, then I can use the material. That is not the case. Also, case law has inferred that there is an assumption of time limits for the use of a work under fair use, indicating that if there is an established system to handle permissions, then the owner's market has expanded to include the permissions market, and fair use cannot be claimed indefinitely, as such extensive fair use would have a deleterious effect on the potential market.

Again, these are simply four factors that must be considered in making a fair use claim. If the use may have an effect on the potential market or value of the work being used, it is not likely that your use will be considered fair use. Often in a university setting, the use may start out as fair use within a classroom setting, but progress to a potential commercial situation. The fair use factors must be revisited when any of the factors change, including the purpose of the use.

Public Domain

A work in the public domain does not enjoy copyright protection. Even so, other intellectual property laws or rights of others might apply, so there still may be restrictions on the use of the work. Because copyright laws have changed over the years, each work must be reviewed carefully to determine if it has fallen into the public domain.

A work may be in the public domain if its copyright term has expired, including any permitted renewals. Also, unlike the automatic protection that exists today for copyright subject matter, works published prior to March 1, 1989, required a copyright notice to appear on the published work, if it did not appear, it would be in the public domain. Determining if copyright still covers a work after 1923 requires a review of the circumstances surrounding the work. A good reference for determining what might and might not be in the public domain is Laura N. Gasaway's publication "When Works Pass into the Public Domain." ]

A copyrighted work that does not contain a copyright notice does not mean it is in the public domain. The assumption must be made that the owner intends to assert their rights under copyright. Another common misconception is that content on the Internet is public domain. Copyright laws apply to all forms and mediums of expression, including digital, and unless stated by the owner otherwise, the assumption must be made that the work is protected by copyright.

Governmental works created by federal employees, as part of the employee's official duties, are not protected by copyright. This includes our U.S. laws and regulations. The government can, however, hold copyright transferred to it by federally funded contractors. Federal funding for a research or other projects would not alone cause the work created under that project to fall into the public domain.

Permissions and Licenses

To use all or part of a copyrighted work of another when it does not fall under one of the exemptions to the owner's rights requires a license or permission from the owner. A license is a grant of some or all of the owner's rights in the copyright work. A license can be exclusive, meaning the copyright owner will not grant the same rights to anyone else and usually requires that the owner not perform the rights granted under the license. Or a license can be non-exclusive, meaning the copyright owner may grant the same rights to others. The owner's rights are divisible and can be limited in time and scope. For example, the copyright owner of a software program may grant a distributor the exclusive right to copy and distribute the software in CD format in the United States and Canada. The distributor's rights are very limited. Among other things, the distributor cannot distribute it over the Internet, display it, or make improvements and modifications to the software. An exclusive license must be in writing and signed at least by the owner of the copyrights being conveyed.

A permission is a non-exclusive license. Permission can be oral, but written permission is preferred. Many copyright owners will also place permissions statements with their work. An example would be: "Permission is granted to non-profit educational institutions to reproduce this work in its entirety, including the copyright notice and this permission statement, for internal face-to-face classroom teaching only. No permission is granted to place this work on a website or in any other digital form." Care must be taken in drafting such statements so that the integrity of the work and the recognition of the creator are not lost.

Only the copyright owner can grant a license or permission.

Infringement

Anyone violating the rights of the copyright owner is said to have "infringed" the owner's rights. The legal or beneficial owner of the exclusive right being infringed is entitled to institute an action for infringement. The beneficial owner may be the licensee under an exclusive license of the rights being infringed. To bring an infringement action under copyright law the work must be registered in the copyright office, there must be proof that the infringing party has had access to the work, and there must be proof of violation of one of the copyright owner's rights.

Copyright on the Internet

Copyright and the Internet (and other digital media)

Copyright laws do apply to the Internet. Some individuals have the misunderstanding that content placed on the Internet is automatically placed in the public domain. If the content, software, or other materials meet the requirements for copyright subject matter, they are protected by copyright.

The technological advancements and the inherent nature of the digital medium do, however, raise problems for owners and users of copyright material. Works on the Internet can instantaneously be copied and modified; both are rights of the copyright owner. Also, copies of digital works are of the same quality as the original and, therefore, have the same value as the original.

Congressional attempts to keep up with these advancements by enacting new laws and modifying current laws have not kept up with the fast pace of technology advancements. Also, as with previous copyright laws, case law provides clearer guidance in specific situations. With regard to recent laws related to the digital medium and the Internet, not enough case law has yet been developed to provide that guidance.

Fair Use and the Internet

The ease with which copies and modifications can be made by simply using someone's work on the Internet requires another careful review of the four factors of fair use: character of use, nature of use, amount and substantiality used, and effect on market. It is the fourth factor, effect on the potential market or value of the copyright work, which could be most affected by the use of all or a portion of someone's work on a website.

If the use would be considered fair use under the first three factors, the effect on the market and value of the work could fall under fair use if appropriate safeguards are put into place. Those safeguards would include placing the portion of the work in a secure, password-protected site for a limited time with appropriate notices regarding the copyright and source of the material. However, case law has leaned in favor of setting time limits on fair use if there is an established system to handle permissions. If such a system exists then the owner's market has expanded to include the permissions market, and fair use cannot be claimed indefinitely, or it has a deleterious effect on the potential market.

The Teach Act

In an effort to expand the copyright law's exemption for face-to-face teaching [Section 110 (1) of the Copyright Act] to the right to perform and display works in a digital medium, including the Internet, the Teach Act [Section 110 (2) of the Copyright Act] was enacted in 2002. This act has a significant impact on distance education and has received a lot of attention and criticism from educators. The limitations, conditions, and ambiguous terms contained in the act have resulted in many educators continuing to rely on the fair use exemption rather than the Teach Act.

Software and copyright

Both copyright and patents may protect software. Patent laws protect the functionality of the software and copyright protects the expression of authorship (written code). A patent permits the patent owner to prevent others from making, using, selling, offering to sell, or importing the claimed novelty of the invention, i.e. no one may write software utilizing this novel invention without the patent owner's express permission. Copyright, on the other hand, protects only the author's personal and original expression of the software. Consequently, copyright may protect the same or similar software programs each owned by different parties unless it can be shown that one party had access to the other's program and performed one of the copyright owner's rights.

While inventors must make an inventive contribution, authors of software are those who express the idea or concept of the invention. Generally, authorship will include those who write the code and those who are actively involved in the directing and editing of the writing.

In a university setting, software typically will involve multiple authors. Understanding ownership of copyright in software, prior to its development, will help to accomplish the transfer or use by others of the final product.

Copyright at Iowa State University 

Applying Copyright Ownership to University Employees and Students

Iowa State recognizes the long-standing practice of faculty and student ownership of copyright in traditional works of scholarship reflecting research and/or creativity, which, within the university, are considered as evidence of professional advancement or accomplishment. Specifically, traditional works of scholarship are journal articles, textbooks, monographs, plays, poems, musical compositions, visual arts and other works of artistic imagination, and works of students created in the course of their education, such as dissertations, papers, and articles. Unless in a written agreement to the contrary, the ownership of these traditional works of scholarship resides with the faculty or student author. Examples of written agreements would include an agreement between the university and the author in which the work is created at the university's direction, agreements related to sponsored research, or agreements with publishers.

Other types of copyrighted works such as software, instructional materials, and works of non-faculty employees are owned by the university or for the benefit of the university when:

  • Significant university resources are required to develop a copyrighted work. The current policy requires that an agreement be entered into between the developers and the university prior to the development of work. Concerns about determining whether significant resources will be used or have been used should be taken to the department head and/or dean who may consult with OIPTT. Funded research is considered a use of significant university resources.
  • Copyrighted works are produced by university employees in performance of the duties of their position at Iowa State. These works are considered developed under copyright's work-for-hire doctrine, under which the university is considered the author and owner of the copyright.
  • The work may also be patented, such as the case with software. (Note that in these cases, the university reserves the right to pursue multiple forms of legal protection.)

The work uses any of the university trademarks, including the names ISU, Iowa State, or Cyclones.

In today's environment, the development of copyrightable materials such as on-line courses involves multiple developers and is generally a work in progress with new developers adding new materials year after year. Sorting out copyright ownership can be a complex and tedious process. Simply stating in a policy that the faculty member owns the copyright rights in a work may not be sufficient to assure that the ownership does indeed reside with the faculty. Federal law will take precedence over any conflicts with a policy or state law. Therefore, policies and procedures should be clearly written to provide ownership to the intended party.

Administration

The Office of Intellectual Property and Technology Transfer (OIPTT) is directed through the Vice President for Research and Economic Development (VPR/ED) to administer the intellectual property policies, including copyright, of the university. Any questions about the university's polices may be directed to OIPTT staff.

Other sources on campus for assistance in copyright law, and their general area of assistance are:

  • ISU Library (course material reserves, reproduction of library materials, permissions) 294-3642
  • Information Technology Services (permissions) 294-6014
  • Campus Bookstore (course packets)/or Course Works Representative 294-0237
  • Office of University Counsel (legal assistance) 294-0237

Granting Permissions and Licenses to University Generated Copyright Works

When the university owns the copyright in a work or has rights to benefit from the work, management of any commercial licensing or permissions is the responsibility of OIPTT and ISURF. Contact OIPTT if one of the following applies to a work:

  • You have questions regarding ownership under university policies.
  • Commercial interest is expected and work has not yet started on the project.
  • The work was developed using external funding and there is potential for commercial interest, or permissions have been requested from a commercial or non-commercial party.
  • The work was developed as part of an employee's scope of employment and commercial interest is expressed.

OIPTT may determine that the copyrighted work has the potential for commercial use, thereby generating income to be shared with appropriate parties. In such a case, an intellectual property disclosure record will be completed by the author to provide OIPTT the opportunity to conduct an in-depth review and to assign the copyrights to ISURF.

If there are no agreement restrictions, either from federal funding regulations or other funding agreements, and commercial interest is not anticipated, and if the granting of the permissions will not create a potential for adverse competition with programs of the university, granting permissions for copyright works owned by the university is delegated to the individual administrative area responsible for the development of such works. OIPTT will assist in the review of the written permission if requested.

Some key guidelines for granting or requesting permissions without charge include the following:

    • The request should be in writing.
    • The permission should be in writing from the owner, preferably in duplicate so that each party has a copy.
    • The permission should state the specific rights granted for the specific use requested and for no greater rights than are needed.
    • The permission should identify in detail the material subject to the permission.

Effect on Research

It is common for the sponsors of research to ask for rights to use or own the copyrights resulting from the research they fund, such as reports, technical articles, or software. Iowa State retains rights in the copyrights resulting from research conducted at the university, but may allow the sponsor to obtain a license to the copyright material. Language within a sponsored project agreement, which would be contrary to university policy include:

  • A statement that the work is a work made for hire. Language describing the research as commissioned work made for hire is an attempt to apply the copyright law's work made for hire provisions, which automatically give the sponsor ownership of the copyright in all works created under the research if they fall within specified categories. The result of such language is the prohibition of the university and the faculty or students from using the copyright work.
  • Granting the sponsor unlimited rights to use the deliverable. Use of a deliverable should be limited to non-commercial, research purposes only. University-developed background intellectual property rights, such as patents, may cover a deliverable. By allowing the sponsor to use the deliverable without restriction, commercial use may jeopardize the obligations under previous funding or licensing arrangements and the rights of other faculty or students.
  • Clauses that prevent the university from competing in the same area. It may be that the principal investigator of the funded project and his/her research team (including graduate students) do not intend to work in the same area again, but other current and future research work within the university cannot be compromised.
  • Clauses discussing rights in data and transfer of those rights are sometimes included in discussions with copyright. These clauses need to be reviewed carefully to ensure that the researcher has the right to publish the results of his/her research. Also, rights in data clauses may be so broad that, for all intents and purposes, they transfer the copyright ownership to the sponsor.  

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