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Intellectual Property



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What is Copyright?

Copyright is the affirmation of the rights of authors, inventors, creators, et cetera of original works. It is intended to promote authorship, invention, and creation by securing certain rights. The basis for modern copyright law (U.S. Code Title 17) is found in the U.S. Constitution (Article I, Section 8, Clause 8):

"...to promote the Progress of Science and useful Arts, by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The exclusive rights of the creators of original works include copying, distribution, displaying and performing. Creations that can be copyright protected include (but are not limited to): books, plays, journals, music, motion pictures, photographs, paintings, sculptures, digital files, sound recordings, computer programs, websites, dance choreography, architecture, and vessel hull designs. The copyright on creations also extends to the copying, distribution, displaying, and performance of derivative works. Copyright also covers unpublished works.

Where does this leave educators, students, and researchers? Read on.

 

What is Fair Use?

Copyright not only protects creators and their creations, it also legally establishes the defensible position of the public to access and use copyright-protected works for educational and research purposes.

In Section 107 of Chapter 1 of Title 17 of the United States Code, fair use is explained as a limitation to the exclusive rights of copyright holders. The section reads:

[...] the fair use of a copyrighted work [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

 

The four factors seem ambiguous because they are meant be guidelines and not firm restrictions. The determination of fair use vs. copyright infringement is often made on a case-by-case basis. Often, questions help the four factors make more sense:

(1) the purpose and character of the use

Is this for educational or research purposes? More Fair.
Or is it for commercial or for-profit purposes? Less Fair.

(2) the nature of the copyrighted work

Is this work factual and published, like a journal article? More Fair.
Or is it a creative or artistic work, like a novel or an artwork? Less Fair.

(3) the amount and substantiality used

Will only a small portion be used? More Fair.
Or will a large portion, all of it, or the most important part of large work be used? Less Fair.

(4) the effect of the use upon the potential market for or value of the copyrighted work

Will this not reduce sales or make the work more widely available than it already is? More Fair.
Or will using the work stop others from purchasing the entire work or make the important parts available to many for free? Less Fair.

 

A helpful resource for understanding the four factors better is Using the Four Factor Fair Use Test (UT Austin).

The Copyright and Fair Use information above is from Swisher Library's Copyright & Fair Use page. Please visit for more information and frequently asked questions on copyright, fair use, and the library.

 

Intellectual Property in the University community

Read the JU Intellectual Property Policy.

The United States Government has protected materials considered Intellectual Property since its inception. There are three practical reasons for this:

  1. To protect the ideas of creative people so that they are motivated to keep creating. That motivation usually comes in receiving financial benefits for the creator.
  2. To make sure the country has citizens that promote the highest degree of excellence in scientific and artistic endeavors.
  3. To encourage people to purchase innovative, and eventually improved, versions of those creative items as it benefits the national economy.

It was deemed that in 1999 that materials that were placed on an online course was considered to substitute for materials that would be presented in class, and that copyright remains with the professor. The TEACH (Technology Education and Copyright Harmonization) Act was established as part of a series of amendments to the Digital Millennium Copyright Act of 1998 to ensure this point. According to Audrey Latourette, "The TEACH Act, in essence, applies the teacher exemption and fair use defense to online education, but only to the extent that online delivery is a comparable replacement for the type of, and amount of, performance or display of materials that occurs in the classroom and that transmission be limited to students enrolled in the course,” though she does go on to comment that material under copyright (photographs, music and video clips) could be infringed upon easily simply because so many could have access to the material.

The University of California system has a succinct list that is helpful in summarizing the TEACH act, where it states to be compliant, course materials can be utilized by instructors in the following ways:

  1. Display (showing of a copy) of any work in an amount analogous to a physical classroom setting.
  2. Performance of nondramatic literary works.
  3. Performance of nondramatic musical works.
  4. Performance of "reasonable and limited" portions of other types of work (other than nondramatic literary or musical work) EXCEPT digital educational works.
  5. Distance-education students may receive transmissions at any location.
  6. Retention of content and distant student access for the length of a "class session."
  7. Copying and storage for a limited time or necessary for digital transmission to students.
  8. Digitization of portions of analog works if no digital version is available or if digital version is not in an accessible form.

One particularly notable point in this list is with item 4. Note that dramatic works, such as a commercial film, fits into this category. This means that you cannot put a complete film online for student viewing UNLESS it is a film created for educational intent. Thus, showing a film from a series on American history with funding from the National Endowment for the Arts would likely fit in this category, but a showing of the commercial film Amadeus would not.

In the case Vanderhurst v. Colorado Mountain College District, 16 F. Supp. 2d 1297 (D.Colo. 1998), a veterinary professor designed a course outline that he was teaching. Though the professor claimed to be the owner of the course design, and not only did he want to be able to use it in the future, he wanted to prevent the university from using it. The court decided to rule in favor of the university, as it was in the professor’s duties as a faculty member to develop the course.

When many people think about copyright, they are too busy consumed with how one person can be taken advantaged of, so that someone else can claim credit for an original idea. But I have found through my experience in the music industry to think in terms of financial benefit first, and the whole idea of copyright becomes clearer.

 

How does the Jacksonville University Intellectual Property Policy apply to me?

Faculty as instructor

Any of the materials created for a course offered at Jacksonville University, as long as the materials are not connected to external funding such as a grant, belong to the faculty member. That’s because they paid money to get their degrees that has shaped their original thinking. If they leave JU, their thoughts go with them.

Since the materials are created by the instructor for their own use, the faculty member is not expected to get additional compensation from the university. This would include lecture materials, such as a PowerPoint or Blackboard design. Further, since the university is not paying the faculty member for a specific design, the faculty member can take this with them if they leave.

Since the course materials are used at Jacksonville University, the university can use the materials for other instructional or administrative purposes. A good example of the instructional use is a syllabus adapted for another class. An instance of the administrative use is a syllabus or course description provided to SACS under our accreditation review.

Faculty can use any type of media that features a student’s picture or work if it is to create a website, video or other course materials for the course the student is in, and the development of that course. An example of this is that an instructor can website for a nursing course showing pictures of former nursing students working in the field. They cannot use the student’s picture or work for other purposes unless the student signs a releases granting this privilege.

A faculty member can use portions of materials created by others for instructional purposes (aka “fair use”). For example, a faculty member can Xerox a few pages out of a book and give them to their class as a handout to illustrate a specific point. But you certainly can’t give them the book for free, or even the whole chapter, because it restricts the author and publisher’s ability to make money. A whole chapter could be in a book of collective essays, written by different authors. One essay could be the most groundbreaking study in their discipline, and sales of the book depend on that essay.

Often people ask me, “how much can I use?” My generic answer is, "if the work of someone else enhances a small portion of your own offering, then you are likely safe." But if the work of someone else is used and you have the potential to hinder their ability to make money, then you need to ask for permission. Often, the copyright holder will grant permission if it just a small amount. For example, if I quote lyrics from a Van Halen song in my book, no would expect that it would hurt record sales. But I still have to ask Warner Brothers Publishing for permission.

-Dr. Thomas Harrison, Associate Professor, Music Business and Recording

How do I get permission? The best way is to have the author grant it to you, but there is the Copyright Clearing Center that can handle that for you. The copyright holder pays them a fee.

 

Faculty as creator and researcher

Though Jacksonville University isn’t what many consider a “Type I” research institution, there is a considerable amount of intellectual activity on campus. The basic idea is that if an institution has provided financial support for a creative project or invention, then they are entitled to a portion of the profits that the invention might generate. For example, if a scientist has used a JU lab to develop a vaccine for cancer, sold all over the world, JU should get a portion of this since they bought the lab equipment, and paid the electric bill for the research and development.

If there are funds generated by licensing the invention to an outside company the income is divided this way

  1. Inventor/Author (and their heirs) personal share - 50%
  2. Inventor/Author's Department - 20%
  3. University share - 30%

Faculty members have a primary responsibility to Jacksonville University first, and any other financial opportunities that emerge second. It is possible that someone could invent something on campus, and then join the licensing business to exploit the new product. In order to avoid any ‘conflict of interest,’ the faculty member is obligated to inform the university in writing that it is planning on working with the outside company, with the complete understanding the activity is not to impede on the usual obligations (research, service and instruction) of a faculty member.

 

Students

As long as digital media will be around, there will be copyright infringement. Important economic models such as the music industry can be crippled if people can use copyrighted material without financial compensation.

Like many member of society, students will want things for free. Students consider music and software particularly valuable. Swapping songs, movies, software and even pictures is illegal. It hurts the industry that created the material in the first place. As a result, Jacksonville University takes a policy that restricts the use of known websites that distribute illegal materials to the best of their ability so that if anyone wants to violate the law, they have to use their own mechanism to do so.

An essential component in education is to cultivate thought. That means that to simply use the thoughts of others without giving them credit is wrong. But it is best to either explain why the others or wrong in the context of your overall argument. Plagiarism is something that academics at all levels have had to watch out for over a long period time. As you write, ask yourself, “is this really my idea?” Then ask, “can I use the ideas of others to help formulate my own ideas?” your degree is earned by in large by how you have learned how to think. If you think economically, an employer hires you in accordance to your accomplishments. Your degree represents an accomplishment that states imply you know how to think at a certain level.

 

Staff

Though staff members are not usually thought of a part of creative community, they could implement a design for software or a building, they are creating a work ‘for hire,’ in that they are part to complete a specific task for an employer.

Like students and faculty, staff members are not to use the creations of others without seeking the appropriate permissions if applicable. The general rule of thumb is that “if the person or agency who created the original is losing money because of your use, especially if you should pay for it and am not, then you are likely violating copyright.”

When the university employs a photographer, the photos taken by the photographer for the university revert to the university since the photos are considered a “work for hire. A work for hire is an assignment of copyright to an organization (in our case, the University) that has hired or commissioned a staff member or outside employee to prepare or create a work that they would usually be able to retain copyright. This has been supported by the cases Manning v. Board of Trustees of Community College District No. 505 (Parkland College), 109 F. Supp. 2d 976 (C.D. Ill. 2000) and Foraste v. Brown University, 248 F. Supp. 2d 71 (D.R.I. 2003)

Portions of movies can be shown in a lecture or online. The copyright defines this as “limited and reasonable,” and it should be understood that this is a portion to illustrate a point. Full movies can be shown in if they are created for educational settings, such as a documentary in a Humantieis class.

 

Non-employees

On occasion, the university will hire consultants and independent contractors. The outside consultant retains any creative right unless there is a written exception included in the agreement. Examples of the exception could be the design of a logo, the design of a building or software used to catalog library materials. Essentially the work is ‘for hire,’ as discussed in item 3 in the staff section above.

 

Links to resources.

http://www.copyright.gov/docs/regstat031301.html

http://www.forumonpublicpolicy.com/archivespring08/holmes.pdf

http://www.universityofcalifornia.edu/copyright/teach.html

Audrey W. Latourette, "Copyright Implications for Online Distance Education," (2006), 32 J.C. & U.L. 613 at 624, at

http://ww.law.siu.edu/lawlib/CILP/2009/cilp0814.pdf

http://www.nea.org/he/intelpwp.pdf

http://copyright.columbia.edu/copyright/copyright-ownership/work-for-hire-case-summaries/

 

Why Students Plagiarize
 
Why do students plagiarize?  Exploring what students are thinking when they copy work belonging to others, this session shares insights gained from listening to students’ voices and delving into their behaviors and motivations.

In this free 30-min on-demand webcast, "Why Students Plagiarize," educational psychologist and author, Jason Stephens explores why students cheat even when they believe it is morally wrong. He talks about three common motivational patterns that drive academic dishonesty:

  • Under Pressure: High performance goals or high extrinsic motivation
  • Under-interested: Low mastery goals or low intrinsic motivation
  • Unable: Low efficacy or low perceived sense of ability