Information Literacy Modules: Intellectual Property and Copyright

After completing this module you will be able to:

• Demonstrate an understanding of intellectual property, copyright, and fair use of copyrighted material.

Intellectual Property Law is concerned with encouraging human innovation and creativity without unduly restricting dissemination of its fruits. Intellectual property is broad in scope covering a wide spectrum of creative mediums: literature, visual arts, music, drama, movies, biotechnology, computer software, etc.

Intellectual Property can be grouped into four different categories: Trademarks, Trade Secrets, Copyrights, and Patents. These four categories illustrate only one way to organize the various subsets of Intellectual Property Law. Another growing area of Intellectual Property Law is International Intellectual Property Law because of the varying degrees of rights one has in creative innovation.

Copyright is a form of intellectual property.

Industrial property is a form of intellectual property that includes inventions, patents, trademarks, industrial designs, and geographical indications of source (i.e., products that are closely identified with their geographical places of origin).

For more in-depth reading on copyright, visit the ULS Copyright and Intellectual Property Toolkit. Here you'll find information about copyright and other intellectual property topics, FAQs about copyright and fair use, and links to resources and tools to help you understand and interpret copyright law.

Copyright is codified in federal law, namely Title 17 of the U.S. Code. 

As defined by the U.S. Copyright Office, "Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression." Content creators, termed "authors" in this definition, are often referred to as copyright "owners" or "holders" as well. The terms are used interchangeably in this guide.  

Copyright is a form of intellectual property law that grants the creator of an original work exclusive rights to its use and distribution. Simply put, when you create an original work—be it a poem, a photograph, a song, or a piece of software—you have the exclusive right to use, copy, and distribute that work, generally for a limited period of time. These rights are not absolute and are subject to limitations and exceptions, most notably the doctrine of "fair use," which we will delve into later.

The primary rationale behind copyright law is twofold:

1. Economic Incentive: By providing exclusive rights, copyright law aims to incentivize creators to produce works that contribute to societal advancement. The idea is that creators will be more likely to invest time and resources into creating new works if they can control and profit from them.

2. Promotion of Learning and Cultural Enrichment: While providing protections to creators, copyright law also aims to enrich society by promoting the dissemination of works for public consumption, hence exceptions like "fair use" exist.

Copyright law applies to a broad spectrum of creative works, including:

• Literary Works 
• Musical Works 
• Dramatic Works 
• Pictorial, Graphic, and Sculptural Works 
• Audiovisual Works 
• Sound Recordings 
• Software: Computer programs and applications

It's crucial to note that copyright does not protect ideas, facts, or methods, but rather the unique expression of those ideas. For example, you can't copyright the idea for a time-travel novel, but the specific text you write—your unique expression of that idea—is copyrightable.

As the U.S. Copyright Office explains, "Copyright is originality and fixation:"

Original Works

Works are original when they are independently created by a human author and have a minimal degree of creativity. Independent creation simply means that you create it yourself, without copying. The Supreme Court has said that, to be creative, a work must have a “spark” and “modicum” of creativity. There are some things, however, that are not creative, like: titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; and mere listings of ingredients or contents. And always keep in mind that copyright protects expression, and never ideas, procedures, methods, systems, processes, concepts, principles, or discoveries.

Fixed Works

A work is fixed when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time. For example, a work is fixed when you write it down or record it.

What type of protection does copyright grant the owner? The U.S. Copyright Office states, "U.S. copyright law provides copyright owners with the following exclusive rights:

• Reproduce the work in copies or phonorecords.
• Prepare derivative works based upon the work.
• Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
• Perform the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a motion picture or other audiovisual work.
• Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
• Perform the work publicly by means of a digital audio transmission if the work is a sound recording.

Copyright also provides the owner of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations."

U.S. copyright law has evolved considerably, with significant amendments and overhauls reflecting changes in technology, international agreements, and societal views on intellectual property. The most recent major update is the Digital Millennium Copyright Act (DMCA) of 1998, which adapted U.S. copyright law to the challenges and opportunities posed by digital technology. Let's look at that next.

As an institution of higher learning, St. Johns River State College (SJR State) is dedicated to providing quality educational programs and services to it's students through the formation, discovery, and dissemination of knowledge. SJR State recognizes that the copyright holder has exclusive rights to their copyrighted works, but that the use of copyrighted materials is sometimes necessary to further enhance the learning, research, and scholarship activities of its students. 

All SJR State students are expected to have a basic understanding of copyright law and to adhere to all laws regarding copyright, fair use, and the Digital Millennium Copyright Act, and to act in good faith when using copyrighted materials to support their educational and research activities. Copyrighted materials includes text, music, videos, games, movies, and software.

To assist the students, SJR State faculty, administration, and student government will provide information about academic honesty, copyright, plagiarism, fair use, and the Digital Millennium Copyright Act:

• Academic use of the College's computer network, software and email is posted in the College Catalog, "SJR State Student Guidelines for Acceptable Computer and Internet Use." The email use policy is available at MySJRstate.
• Information on academic honesty and plagiarism is in the SJR State Student Handbook, under Academic Freedom and Responsibility, and the SjR State Policy on Academic Integrity.
• Copyright information is posted on the library tab at MySJRstate. Students who fail to comply with the copyright law and willfully infringe it may face fines and civil or criminal penalties from the U.S. Courts, as well as discipinary action from SJR State.

Copyright

The owner of a copyright has the exclusive right to do and/or authorize others to do such things as:

• Make copies
• Distribute the work
• Display the work
• Perform the work publicly
• Create derivative works (other works based on the original work)

Peer to Peer File Sharing

While Peer-to-Peer (P2P) technologies facilitate collaborative works, creativity, and have many important and legitimate uses, some forms of peer-to-peer file sharing violate the copyright law. To assist you in understanding the parameters of peer-to-peer sharing, information is provided here.

U.S. Copyright Office - Official website of the Library of Congress’ copyright office

Copyright Law of the United States  - Includes text of new copyright law and FAQ.

Pending Legislation

Digital Millennium Copyright Act - Summary (PDF File - 18 Pages)

Digital Millennium Copyright Act - 1998 (PDF File - 94 Pages) Public Law 105-304 (1998)

SEC. 403 - Limitations on Exclusive Rights; Distance Education

Under the “fair use” rule of copyright law, an author may make limited use of another author’s work without asking permission. However, “fair use” is open to interpretation. Fair use is intended to support teaching, research, and scholarship, but educational purpose alone does not make every use of a work fair. It is always important to analyze how you are going use a particular work against the following four factors of fair use.

1. What is your purpose in using the material? Are you going to use the material for monetary gain or for education or research purposes?
2. What is the characteristic nature of work – is it fact or fiction; has it been published or not?
3. How much of the work are you going to use? Small amount or large? Is it the significant or central part of the work?
4. How will your use of the work effect the author’s or the publisher’s ability to sell the material? If your purpose is for research or education, your effect on the market value may be difficult to prove. However, if your purpose is commercial gain, then you are not following fair use.

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The Fair Use Evaluator can help you decide if you are using copyrighted materials "fairly" under the U.S. Copyright Law.

If you develop a product (of any sort) that could earn revenue and the product is developed on an SJR State College campus, using SJR State College's facilities or in conjunction with SJR State College employees, the College may own some or all of the product. Ownership of the product is negotiated between you, the College, and any other interested parties and stated in a written contract. If you are a student and you have any questions regarding product ownership, please contact the Vice President for Student Affairs at (386) 312-4127. If you are an employee and you have questions regarding product ownership, please contact the Vice President for Finance and Administration at (386) 312-4116.

Copyright Permission - Public Works
Free use of materials not protected by copyright is permitted for public works.  The following guidelines may be used to determine what constitutes a public work:

1. Works that lack originality (e.g., phone books)
2. Works in the public domain (no longer protected by copyright)
3. Free ware (must be expressly stated)
4. U.S. Government works
5. Facts (e.g., Water boils at 212 degrees Fahrenheit)
6. Ideas, processes, methods, and systems described in copyrighted work that is not otherwise protected by patents

Copyright Permission – Works in Public Domain
A public domain work is a creative work that is not protected by copyright and
which may be freely used by everyone. The presence or absence of a copyright notice is no longer significant when determining what a protected copyright is or a public work. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice is non-determinative.
The reasons that the work is not protected include:
1.   The term of copyright for the work has expired;
2.   The author failed to satisfy statutory formalities to perfect the copyright or
3    The work is a work of the U.S. Government.

The following chart is helpful in distinguishing a work in the Public Domain:

When Works Pass Into The Public Domain, University of North Carolina, Dr. Laura Casaway

Copyright Permission – Direct from copyright owner
Written permission from the copyright owner is needed to copy materials in those situations when the proposed copying does not come within the doctrine of "fair use". Obtaining such permission is usually not difficult and, in most cases for classroom use, is granted with no royalty charge.  You may contact the author or publisher.

The Association of American Publishers suggests that the following information be included to expedite the process:
1) Title, author and/or editor, and edition of materials to be duplicated;
2) Exact material to be used, giving amount, page numbers, chapters and, if possible, a photocopy of the material;
3) Number of copies to be made;
4) Use to be made of duplicated materials (including time period or duration if copying on an on-going basis is desired);
5) Form of distribution (classroom, newsletter, etc.);
6) Whether or not the material is to be sold; and
7) Type of reprint (ditto, photocopy, offset, typeset).

Below are samples of permission letters:
Model Permission Letters -Columbia University
Sample Written Request -University of Texas

For help in locating the copyright owner:

Complex Searches - Columbia University

Locating Copyright Owners. -CopyLaw.com List of organizations and web sites that assist the researcher to identify and locate copyright holders.

Collective Licensing Agencies
American Society of Composers, Authors and Publishers (ASCAP) licenses the right to perform songs and musical works created and owned by the songwriters, composers, lyricists and music publishers who are ASCAP members and also those members of foreign performing rights organizations who are represented by ASCAP in the United States.

Broadcast Music, Inc represents over 350,000 creators of music, the songwriters, composers and publishers of more than 6.5 million musical works.

Criterion Pictures USA, Inc. - a supplier of rental and licensed non-theatrical feature entertainment movies which are licensed for public performance in the United States.

Kino International Corp. - founded in 1977 as a theatrical distribution company specializing in classics and foreign language art films. Now known as Kino Lorber.

Milestone Film & Video – distributors of films of enduring artistry from both yesterday and today. Their collection ranges from the earliest days of the cinema, to the golden age of the silent films, to the postwar foreign film renaissance, to brand-new American independent features, documentaries and foreign films.

Motion Picture Licensing Corporation is an independent copyright licensing agency that provides the Umbrella License® to ensure copyright compliance for the public performance of motion pictures.

SESAC is a performing rights organization with headquarters in Nashville and offices in New York, Los Angeles, Atlanta, Miami and London.

Swank Motion Pictures, Inc., founded in 1937, is the major non-theatrical movie distributor and public performance licensing agent in venues where feature movies are shown publicly.

Elements of this guide were adapted from or used directly with permission from the following institutions:

The Bern Dibner Library of Science and Technology

University of Nebraska, McGoogan Library of Medicine

The Center for Internet and Society at Stanford Law School

This work is licensed under a Creative Commons Attribution 4.0 International License.

Take a Quiz!