Draft:Intellectual property education

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Intellectual property (IP) consists of four kinds: patent, trademark, copyright, and trade secret.[1] In order to understand these areas and use them correctly, a person needs to be trained and educated. That training may be delivered through various types of resources, including webinars, college courses, web pages, and books. Intellectual property education should teach the individual what these areas are, what aspects of the law apply to them, and how to understand normal situations which might arise regarding those specific areas. Because of its importance, intellectual property education should be available to people of all age groups and education levels. Because intellectual property laws are specific to each country, training on the topic is also specific to each country.

Copyright protects original expression of ideas in different forms, but not the ideas themselves. The goal of copyright law is to encourage individual and business entities to produce original work by rewarding them with exclusive rights for their benefits, which is subject to time and statutory exceptions.

As outlined in the United States Copyright Office's guide, Circular 1: Copyright Basics[2], a work is given copyright protection once it is fixed within a tangible medium, which includes "written works, musical works, dramatic works, pantomimes and choreographic works, pictorial works, graphic works, sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works." [2] The copyright protection given to the work provides the owner of the work with specific rights including the right to reproduce the work, the right to create a derivative work, the right to perform the work, the right to display the work, and the right to distribute copies of the work. [2]

Governing Laws of Copyright[edit]

One area to become educated on is the laws which govern copyright.

Constitution[edit]

United States copyrights law is based in U.S. Constitution, which authorizes Congress to provide authors with certain exclusive rights in their writings for a limited period of time.[3] The "writings" is a broad term, which means any work of original expression in any form or medium, including literary, artistic, musical and etc.. "Authors" is also a broad term, which includes all creators of works.

Federal Statutes[edit]

Copyright Act of 1976[edit]

Copyright law is primarily governed by federal statute and the current controlling statute is Copyright Act of 1976, as amended.[1] Under the Supremacy Clause of Constitution[4], with few exceptions, the Copyright Act of 1976 preempts state law.

TEACH Act[edit]

The federal TEACH Act (Technology, Education, and Copyright Harmonization Act of 2002) was signed in November 2002, and governs the use of copyrighted materials in online learning environments.[5] The TEACH Act eases some of the rules put in place by the Digital Millennium Copyright Act of 1998.[6] Many universities, including the University of Washington,[7] provide information about compliance with the TEACH Act, often related to the use of learning management systems

Regulations[edit]

The US Copyright Office administers copyrights authorized by the Copyright Act, whose functions include rulemaking, regulate copyright registration, administering statutory and compulsory licenses. It also provides legal and regulatory background information as well as procedural guidance on its website.

State Law[edit]

Though the Copyright Act preempts state law, state law covers the issues which are outside the scope of Copyright Act, such as works of authorship that have not been expressed in a tangible medium (outside of scope of "fixed in any tangible medium of expression"[8]), right not equivalent to any of the "exclusive rights"[9], etc..

In 1972 sound recordings were brought under federal copyright protection, however any sound recordings from before 1972 are protected by state laws.

International Copyright Treaties[edit]

International copyright treaties between U.S. and other foreign jurisdictions are enforceable in U.S. territory under the Supremacy Clause, including: The Berne Convention, The Universal Copyright Convention, The WIPO Copyright Treaty, The WIPO Performances and Phonograms Treaty, The Geneva Phonograms Convention and TRIPS. While their specific terms are different, two fundamental rules govern each member under each treaty: member countries must meet certain minimum standards for copyright protection in their local law and provide reciprocal treatment to copyright owners in other member jurisdictions. The copyright law provided by each jurisdiction is based on its own national laws.

Popular Topics[edit]

For some, the area of interest, in terms of intellectual property education, is popular topics.

Fair Use[edit]

Fair use is one important topic in Copyright and Intellectual Property Education. Fair use law allows for limited use of copyrighted materials without seeking and/or acquiring copyright clearance from the copyright owner. There are four factors of fair use:

  1. The purpose and character of the use
  2. The nature of the copyrighted work
  3. The amount or portion used of the work
  4. The effect of the use[10].

Faculty, staff, and students may find a Fair Use Checklist helpful when determining whether or not their use of a material would fall under fair use. Columbia University Libraries' Copyright Advisory Services provides their own Fair Use Checklist and information about fair use law, as well as other information regarding copyright[11].

For further clarification on Fair Use and how to determine if a person's use falls under that exception, Stanford University has a Charts and Tools section on their website. This website includes links to codes of best practices - including the Center for Media & Social Impact's Code of Best Practices in Fair Use for Media Literacy Education, a Digital Image Rights Computator to help a user discover if an image they wish to use is copyrighted, and a Copyright Navigator that provides basic information on how copyright law works. Each of the links on the website equips a user with enough resources to determine if their use of a copyrighted material falls under the protection of Fair Use.

The legislative intent for fair use in Section 107 in Copyright Act is stated as following: "the bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way."[12] It means courts have broad discretion to decide fair use application. U.S. Copyright Office creates a Fair Use Index which summarizes the newest case law development in fair use.

Public Domain[edit]

Public Domain is another important concept in Copyright and Intellectual Property Education. If a work is in public domain - i.e., if its copyright has expired, been lost, or was never given - that work may be used by anyone. In order to help determine if a work is in Public Domain, Cornell University provides a Public Domain Flow Chart to help users identify if a work is protected by copyright law. Stanford University Libraries' guide, Welcome to the Public Domain, also provides in-depth information that can help users identify how a work enters the public domain based on the date it was published. For example, within the United States, most works that were created prior to 1923 are currently within the public domain.[13] In order to further understand copyright and public domain, the Copy This Podcast provides listeners with a brief history of Copyright Law and Public Domain. Each podcast is approximately twelve minutes long and covers topics such as "Pop Culture and the Public Domain," "Fair Use: You Use It More Than You Realize," and "Notice and Takedown: Leave it Be." Each of these podcasts features experts and scholars of copyright law and can provide users with information about how to navigate the world of copyright.

Orphan Works[edit]

Orphan works, or works where the creator or rightsholder is unable to be determined, are an important current topic in copyright law. There is currently no legislation in the United States place to fully address this issue, though progress has been made specifically for music with the Music Modernization Act in 2018.

After the Copyright Act of 1976, copyright holders were no longer required to register copyrighted works, which benefited copyright holders by simplifying the process to obtain and maintain copyright protection, but in turn complicated the process for potential users of copyrighted material to determine ownership over certain works as the central register for copyrighted materials was no longer deemed necessary. This made any usage of copyrighted materials outside of fair use a violation of copyright, but did not take into account the drastic changes of access and dissemination that would soon occur due to digitization and the internet.

In 2006 the U.S. Copyright Office held a study and released a report on orphan works[14]. The main conclusion was that new legislation was needed to address this issue, and that clearly delineated steps need to be identified for potential users of such works, as well as protocols set in place for when an author comes forward.

In 2008, the U.S. Senate passed a bill that would have limited liability for the use of orphan works where a user, before making a use, “performed and documented a qualifying search, in good faith, to locate and identify the owner of the infringed copyright.” [15][16]

Another report, ‘Orphan Works and Mass Digitization[17]’ was completed in 2012 with particular focus on how how efforts to preserve copyrighted material needed to be balanced with reasonable access to the work. This report laid out the prospective changes needed to alter the outdated legislation and better serve current informational needs.

It is also important to note that in 2013, the UK passed a copyright act[18] that permitted usage of orphan works as long as a diligent effort was made and certain conditions were met, such as filing a ‘notice of use’ for the work.

In its 2015 policy study on orphan works, the Copyright Office recommended that any limitation on liability for using an orphan work must require, among other things, that users have performed a “good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began.”[19][16]

In a new Federal Rule proposed by Copyright Office in October 2018, "the Office has examined “good faith” searches of works in the context of orphan works (i.e., works for which a good faith prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law)." [20]

Obtaining permission[edit]

Another important part of copyright education is learning how to obtain permission from copyright holders in order to legally use their works. This process is called licensing. There are several ways to go about doing this. In some cases, obtaining permission can be as simple as sending a message to the copyright owner of a work asking for permission and receiving a simple yes or no answer. However, it is often a much more complicated and involved process. In addition, one can usually expect to pay a certain fee to the copyright owner in exchange for permission.

There are numerous sources available to help in seeking and contacting the owner of a work's copyright. The Copyright Clearinghouse Center provides information and licenses for a wide range of works. The Creative Commons licenses offer a variety of ways for authors to choose how users interact with their works. For copyright in more specific areas, there are also organizations such as the American Society of Composers, Authors, and Publishers (ASCAP) and the Authors Guild.

Using What You Want to Learn as a Guide[edit]

Many people are trained to understand aspects of intellectual property, including intellectual property attorneys, patent examiners, librarians, and others. For some, such as intellectual property attorneys and patent examiners, there is a defined and accepted educational path. For others, including librarians, the knowledge one might seek to learn is governed by the person's specific circumstances (e.g., job). For these people, there are many topics they can learn related to intellectual property. While general knowledge about intellectual property is important, many people seek to focus on a specific area, such as patent, trademark, copyright, or trade secrets. Each area is distinct and governed by its own laws, rules or guidelines. Patent law is codified in U.S. Code Title 35, trademark in Title 15, and copyright in Title 17. Trade secrets are defined in 18 U.S. Code § 1839, governed within most U.S. states by the Uniform Trade Secrets Act (UTSA). Clearly, in order to understand a specific area of intellectual property, the learner must focus on different areas of the law and recognize that one wants learns in one away may not be applicable to another.

In addition, what someone wants to learn needs to fit the work that person intends to do. No two people may have the same learning needs; therefore the outcomes someone may want to achieve could be quite personal. For example, someone who is training to be an intellectual property attorney focused on copyright law would have different needs than someone who works in a library processing interlibrary loans. Both need to understand copyright, but what sections of the law and the depth of knowledge will be not be the same. After completing training on intellectual property, the learner should be able to engage in one or more of the following:

General Outcomes[edit]

  • Discuss the relationships of the sources of intellectual property law which related to the learner’s area of study, e.g., U.S. Constitution, court decisions, legislation, and regulations.
  • With the understanding that context is fundamental to any analysis, recognize the areas of intellectual property law in relation to specific situations.
  • Navigate the area of intellectual property law which is appropriate to the learner’s work or study environment.
  • Critically assess potential resources related to intellectual property. Those resources may include articles, legal briefs, blog posts, subject guides, journal articles, videos, and textbooks.
  • Articulate – based on court rulings – the subjectivity of legal opinions which may occur, and the impact of discerning options available.
  • Stay up-to-date on and understand the impact of potential changes to the law to the learner’s specific situation.
  • Develop more accurate protocols for their work or scholarship in regards to intellectual property usage.
  • Act as a source for others, who have intellectual property questions. Be able to provide resources or referrals which will help that person resolve their questions.
  • Understand areas of concern (e.g., privacy) are not part of intellectual property.

Specific to Information Use and Sharing[edit]

  • Apply ethics of information use and information sharing to activities that occurs in the workplace, at school, on the internet, and through social media.
  • Articulate the potential consequences of sharing in specific situations.
  • Apply Fair Use (Title 17, Section 107) and other applicable laws to information sharing in the context of the learner’s environment.

Specific to Copyright Law[edit]

  • Understand copyright law and how it applies to the learner’s field of work or study.
  • Articulate basic information on what materials can be covered by copyright law, how long the protection lasts, and the rights of the creator or copyright owner.
  • Understand the difference between the exceptions to the rights of the owner provided to everyone, libraries and archives, educators, and for-profit organizations.
  • Navigate the steps necessary to seek permission to use materials that are not in the public domain.
  • Demonstrate an ability to use Fair Use (Title 17, Section 107) in everyday situations, including the learner’s own use of copyrighted materials.
  • Locate resources that will aid in the examination of a work’s copyright term.
  • Develop a system for resolving copyright issues that may arise in their workplace.
  • Assist others with questions regarding copyrighted materials by providing relevant resources.
  • Provide options which people can use in deciding which materials to use and how.

Training available on intellectual property laws in the United States[edit]

Books[edit]

Subject Guides[edit]

  • Cornell University Libraries. Copyright Information Center provides information about copyright use for faculty, staff, and students, including university-specific policies and U.S. copyright law.
  • Penn State Copyright Portal provides extensive copyright information and how it applies to faculty, students, and staff at Penn State University.  
  • St. John Fisher College Lavery Library. Copyright Information is a guide which assists college faculty, staff and students make informed decisions regarding copyright use.
  • Stanford University Libraries. Copyright and Fair Use Center is a resource that provides an overview on copyright law, including fair use, the public domain, common copyright questions, and more to help college faculty, staff, and students make informed decisions.
  • United States Copyright Office. Duration of Copyright provides an overview of the length of time in which a work is protected under copyright based on when the work was created and/or published. It also outlines what it means when a work received an extension to and or a renewal of the original copyright term.
  • University of Connecticut. Fair Use & Copyright Help: Reproducing Other's Works is a resource for users who have determined that they would like to reproduce another individual's creative work. This guide not only provides an overview of whether reproduction can be done under fair use, but also describes how works can be reproduced based on their characteristics, i.e. published, unpublished, government documents, court decisions, and works within the public domain.[21]
  • University of Texas Libraries. Copyright Crash Course provides information on copyright law for faculty, staff, and students. It discusses topics such as who owns the right to a copyrighted work, getting permission to use a copyrighted work, fair use, licensing, copyright in relation to libraries, and more.
  • Music Library Association. Music Library Association provides copyright information for Music Librarians including news on music copyright and a frequently asked questions page and a bibliography of music copyright related sources.
  • National Association for Music Education. National Association for Music Education provides copyright information for music educators to use in their classrooms including basics of copyright for music educators, licensing information, and other information regarding

Audio and Video Material[edit]

  • American Library Association. Copyright for Libraries: Videos/Movies. This LibGuide details the best practices for fair use of screening audiovisual material in the library and classroom.
  • Benson, Sara Rachel. Copyright Librarian at the Library of the University of Illinois at Urbana-Champaign. Copyright between 1923 and 1978: Is it in the Public Domain?, 10 minute YouTube video. The video provides a general audience with a clear and concise introduction to determining the public domain status for works published between 1923 and 1978.
  • The Center for Intellectual Understanding. IP Education Today: New Strategies and Resources, 38 minutes, 2017. This panel discussion is about education which takes place on intellectual property. This video is appropriate for educators who want to raise awareness of IP.
  • The Copyright Clearance Center. Copyright Basics, 6 minutes and 19 seconds, 2010. This video was created by the Copyright Clearance Center whose mission is to build copyright knowledge within the greater public and to assist with various copyright needs. This video is appropriate for anyone who would like to learn the basic information surrounding United States Copyright Laws. The video if very approachable and can easily be understood by students, educators, and anyone new to the subject of copyright.
  • US Copyright Office, Library of Congress. Taking the Mystery Out of Copyright. A series of short videos and interactive presentations for teachers and school-age students introducing some basic concepts of copyright law.

Workshops, Webinars, and College Courses[edit]

  • Association for Library Collections & Technical Services. Copyright Issues for Growing Digital Collections. This free webinar evaluates possible solutions to common copyright issues for librarians and archivists engaged with digital initiatives, resources, and collections. At the end of the webinar, attendees will be able to assess and develop more streamlined copyright processes in their workplace. The lecture also provides many websites, articles, and guides to copyright best-practices for attendees to consider.
  • Copyright Clearance Center, Webinars. The Copyright Clearance Center provides webinars on a variety of copyright related topics including copyright at work, copyright in academics and some international copyright topics. The webinars available are:
    • Usage
    • Copyright Basics for the Proprietary Institution
    • Copyright at Work
    • Copyright Basics for Academia
    • Global Copyright Challenges
    • Copyright Basics for Publishing
  • Certificate Program, Copyright Clearance Center. The Copyright Clearance Center offers a certificate program for professionals who work with copyright. the certificate program includes information about the principles of copyright, how to evaluate copyright protection, copyright permissions, and content sharing and implications. The Copyright Clearance Center offers certificates for businesses, academics, and rightsholders.[22]
  • Copyright certificate programs are offered via copyrightlaws.com. Their certificate in digital content licensing includes three courses on the subject area. There is also a certificate program offered in copyright leadership, as well as a 12-week certificate program in Canadian copyright law. The site is aimed at explaining copyright law in non-biased and accessible terms, enabling better analysis of copyright law in daily scenarios.
  • CopyrightX. A Harvard University Law School program of twelve-week courses about copyright law for students ages 13 to adult. Participants must apply for admission. The courses are offered in three formats: residential, online, and as a set of affiliated courses offered by international institutions. The CopyrightX site offers downloadable syllabi, lectures, reading materials, and maps for use by instructors of other courses. The site also hosts a blog about copyright for alumni of the courses.
  • International Copyright Institute is co-hosted by the U.S. Copyright Office and the World Intellectual Property Organization (WIPO). The Institute is a week-long program held in Washington, D.C. that provides an opportunity for governments from across the world, private industry, and civil service experts to come together to discuss copyright law and policy.[23]
  • Society of American Archivists. Copyright Issues for Digital Archives. This one-day workshop examines copyright law and case studies to assist archivists in understanding and applying copyright law to common copyright scenarios that occur within digital archives. Attendees should have a basic understanding of copyright law in relation to archival practices before enrollment.
  • Society of American Archivists. Copyright Law for Archivists: A Risk Management Approach. This two-day course geared for archivists and other interested professionals explores the history of copyright, differing intellectual property rights, and limitations/exceptions to copyright law. The class will help attendees navigate complex copyright questions within their workplaces.
  • Syracuse University. Copyright for Information Professionals (IST 735). Geared for library and information professionals, this course provides a firm foundation in the fundamental rules of American copyright law, and equips them with the tools to make informed decisions about copyright issues.
  • University of Southern California. The Entrepreneur's Guide to Intellectual Property (BAEP 474). This undergraduate course provides a foundation in intellectual property to provide students with the knowledge, skills, and tools to achieve entrepreneurial and professional success.

Other[edit]

Training available on intellectual property laws in other countries (non-U.S.)[edit]

  • Berkman Klein Center at Harvard University. Copyright for Librarians provides "librarians in developing and transitional countries information concerning copyright law."
  • World Intellectual Property Organization (WIPO) eLearning Center According to WIPO, their "portfolio of courses on IP caters to different target audiences: inventors and creators, business managers and IP professionals, policy makers and government officials of IP institutions, diplomats, students and teachers of IP and the civil society. Courses combine traditional face-to-face and distance learning methodologies which explains how to stimulate innovation, creativity and development."
  • For copyright law in the UK, copyrightuser.org is an independent site produced by leading academics in the field, intended to make copyright law accessible to content creators. The site is primarily aimed at helping users understand their rights with regard to their own intellectual property.

References[edit]

  1. ^ Bramson, R.S. (1981). "Intellectual property as collateral — patents, trade secrets, trademarks and copyrights". The Business Lawyer. 36: 1567–1604 – via JSTOR.
  2. ^ a b c United States Copyright Office, Library of Congress. (2017).  Copyright Basics (Circular 1). Washington, D.C.: U.S. Government Printing Office.
  3. ^ https://www.law.cornell.edu/uscode/text/17/10617 U.S.C.A. § 106
  4. ^ U.S. Const. art. 6, cl. 2.
  5. ^ "New Copyright Legislation (TEACH Act) | Copyright Information Center". copyright.cornell.edu. Retrieved 2018-11-29.
  6. ^ "Managing Intellectual Property for Distance Learning". Retrieved 2018-11-29.
  7. ^ "UW Copyright Connection : TEACH Act : TEACH Act". depts.washington.edu. Retrieved 2018-11-29.
  8. ^ 17 U.S.C. § 102(a)
  9. ^ 17 U.S.C. § 106
  10. ^ Hirtle, Peter, B. (2009). Copyright and cultural institutions: Guidelines for digitization for U.S. libraries, archives, and museums. Hudson, Emily., & Kenyon, Andrew T. Ithaca, N.Y.: Cornell University Library. ISBN 9780935995107. OCLC 461034081.
  11. ^ "Copyright Advisory Services". Columbia University Libraries. Retrieved 15 November 2018.
  12. ^ https://law.resource.org/pub/us/works/aba/ibr/H.Rep.94-1476.pdf H.R. REP. 94-1476, 66, 1976 U.S.C.C.A.N. 5659, 5680
  13. ^ Stanford University Libraries (2018). Copyright & Fair Use: Welcome to the Public Domain. Stanford University. Retrieved from https://fairuse.stanford.edu/overview/public-domain/welcome/
  14. ^ A Report of the Register of Copyrights (January 2006). "Report on Orphan Works" (PDF).
  15. ^ Shawn Bentley Orphan Works Act, S. 2913, 110th Cong. sec. 514(b)(1) (as passed by Senate, Sept. 26, 2008).
  16. ^ a b "Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited". Federal Register. 2018-10-16. Retrieved 2018-12-03. This article incorporates public domain material from this U.S government document.
  17. ^ A Report of the Register of Copyrights (June 2015). "Orphan Works and Mass Digitization" (PDF).
  18. ^ Intellectual Property Office (May 2015). "Guidance: Copyright: orphan works".
  19. ^ U.S. Copyright Office, Orphan Works and Mass Digitization 56 (2015)
  20. ^ Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited, 83 FR 52176-01
  21. ^ UConn Library (2018). Fair Use & Copyright Help: Reproducing Other’s Works. University of Connecticut. Retrieved from https://lib.uconn.edu/about/policies/copyright/reproducing-others-works/#
  22. ^ "The Copyright Clearance Center, Certificate Programs".
  23. ^ "International Copyright Institute (2018)".


Category:Intellectual property law