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What educators should know about intellectual property

Modified on: Wed, Nov 22, 2017 at 10:37 AM


(What is the issue and why is it important?)

Intellectual property rights protect ownership and control over creative works or inventions. The most common intellectual property rights include copyright, trademarks, and patents. Copyright may apply to a wide range of creative, intellectual, or artistic works from the moment the work is “fixed in tangible form.” Trademarks are recognizable signs that distinguish specific products or services from others. Patents cover inventions.

The stated objective of most intellectual property law (with the exception of trademarks) is to “promote progress” by granting exclusive rights to the creators for a specified period of time. Originally, in the United States, copyright was limited to 14 years and only applied to printed material that you could make a real copy of. After 14 years, if the owner did not apply for an extension, the work went into the public domain, where others were free to use it in their own creations. Today, copyright extends for the life of the author plus 75 years (or 95 years for a corporation) and covers a range of things that were never covered before.

Patent rights also have been extended in recent years. Previously you could not patent things that were found in nature; now you can. Until the Supreme Court ruled against it, patents had even been awarded for human DNA. Critics argue that such broad restrictions actually prevent progress and harm the public interest by taking materials out of the “cultural commons” and restricting their use and have begun to push back in various ways, such as by releasing their own copyrighted works under creative commons licenses.

Copyright is the intellectual property right that affects most educators and is actually a bundle of rights, which include the right to:

  • reproduce the copyrighted work
  • prepare derivative works based on the copyrighted works
  • distribute copies for sale
  • perform the work publicly
  • display the work publicly
  • perform by means of a digital audio transmission.  

Copyright infringement is the use of copyrighted works without permission, which carries with it steep penalties, including high fines and possible jail time.

Fortunately for educators and librarians, U.S. copyright law allows for certain limitations on these exclusive rights for purposes that may be considered fair use, such as criticism, comment, news reporting, teaching, scholarship, and research (Section 107). Libraries also are granted some exemptions (Section 108). Section 110 (1) of the Copyright Law covers classroom performance and display. The intent of these limitations is to balance the public’s interest in open access with the property interests of copyright holders.  Unfortunately, the guidelines are quite broad, and it is not always easy to tell what may be considered fair. There is no “one size fits all” model that will cover every situation, and if the copyright owners disagree with your interpretation of fair use, they may file a lawsuit to resolve the dispute.

Before using copyrighted material in your classrooms, whether online or face to face, you will want to conduct a fair-use analysis to determine whether you should request permission. Consider the following four factors when deciding whether your use could be considered fair use:

  • the transformative factor (have you added new expression, meaning, or value to the original?)
  • the nature of the copyrighted work (you may have more leeway to copy from factual works than from fictional works)
  • the amount and substantiality of the portion taken (smaller portions are more likely to be considered fair use, unless they represent the “heart” of the work)
  • the effect on the potential market (parody is treated differently than other kinds of uses)

The TEACH Act (PDF) also allows for certain uses of copyrighted materials in online education by accredited, non-profit educational institutions that meet the TEACH Act’s qualifying requirements.

Real-life examples / Lessons learned

Considering the wide variety of potential course content readily available, along with the ease of copying and distributing copyrighted materials, how can educators be sure which articles, book chapters, videos, sound recordings, images, films, or other copyrighted material they can legitimately share with students?

Do teachers really need to worry about copyright? Can’t we just assume our use is fair use because it’s “for educational purposes”? Would people really sue an individual teacher for infringement? What if we just take our chances and use what we want? How can we be sure what’s fair use and what’s infringement? Isn’t it enough that we cite our sources?

While it may be tempting to take a cavalier approach to copyright issues, copyright is federal law, so if you plan to use protected material in your courses, you will want to inform yourself about the law and applicable exceptions that could affect your use of such material. Also keep in mind that acknowledging or citing the material, while good practice, does not grant you permission to use a copyrighted work. Nor is it necessarily permissible to “adapt” a copyrighted work without permission, because the right to prepare derivative works is one of the rights covered in the bundle of copyrights awarded to the owner.

If you have identified a work that you would like to use in your class, before posting it online or distributing photocopies of the work, ask yourself the following questions:

  1. Is the work protected by copyright? Assume yes, unless the material was published before 1923 or was produced by the U.S. Government. Check this copyright duration chart (https://copyright.cornell.edu/resources/publicdomain.cfm) to help determine whether the work is protected.
  2. How will the work be used? Keep in mind that different uses have different copyright outcomes. The law also allows different uses in face-to-face classes than in online courses. Posting copyrighted works in your online class is different than posting the same article on a public web site. Likewise, showing a film in your face-to-face class is different than posting a film online.
  3. What exceptions might apply?
  4. Fair use is the most flexible of all exceptions, but it carries some risk. Use this checklist to determine whether your proposed use favors fair use.  (http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf)

    The TEACH Act has more requirements but less risk than fair use. Use this checklist to determine whether your use would be covered by the TEACH act.

  5. Is the material available via a license agreement? License agreements take precedence over copyright and may be more or less restrictive than copyright. For example, a work of art may have been created in the 17th century and out of copyright protection, but the museum where it is housed may own the license to reproduction.
    • Check whether the copyrighted works you wish to use may be available through the library (http://missouri.edu/libraries-museums/index.php) or licensed by your department.
    • Check whether the copyright owner has released copyrights under a Creative Commons license (http://creativecommons.org/).
    • Check whether your intended use of textbook materials or instructor materials (test banks, PowerPoint slides, handouts) is allowed under the publisher’s license agreement.
    • If you are downloading material from the Web, check for notices about copyright and permitted uses.
  6. Is permission needed? If none of the exceptions or license agreements apply, you will need to request permission from the copyright holder, either directly or through a service such as The Copyright Clearance Center (http://www.copyright.com/content/cc3/en/toolbar/education/get-the-facts.html). Be sure to allow plenty of time for the copyright holder to respond and be sure to keep copies of all your correspondence.

Recommendations / Best Practices

(My time is limited. Where should I start for the most impact?)

  1. Give your students a link to the work instead of making copies of it (e.g., via the MU Libraries website or by linking to another legitimate depository or website).
  2. Work with MU Libraries to provide student access to articles rather than uploading works directly to Canvas. (Please note that MU Libraries will take care of securing permission for all materials placed on electronic reserve.)
  3. Use caution in downloading digital material from the Internet, as some copyrighted works may have been posted to the Internet without authorization of the copyright holder. (Knowingly using copyrighted works, even if it is freely available, violates requirements of the TEACH Act.)
  4. If your proposed use is not covered by “fair use,” specific license agreements, or other exemptions to copyright law, obtain permission from the copyright holder before sharing copyrighted work with students.
  5. Take precautions to protect the copyrighted work from broader distribution (e.g., by streaming rather than posting a video; by posting on a password-protected site).
  6. Credit all sources, display the copyright notice, and indicate which materials have been used with permission. (Please note: Citing the material does not grant you permission to use a copyrighted work. Keep in mind that student work is also copyrighted.
  7. Use open content resources (http://goo.gl/48rcnl) when possible, or write your own original content.

Sample language for your syllabus

(What do students need to know?)

In practical terms, copyright issues in class often overlap with academic integrity issues. Having grown up in a culture of mashups, where content is easily recycled and reused, students may have a different idea about what is appropriate behavior. They need to be informed of the rules regarding proper use of copyrighted materials as well as the consequences for infringing on other’s rights.

Notification of Copyright and Fair Use

Materials used in connection with this course may be subject to copyright protection under Title 17 of the United States Code. Under certain Fair Use circumstances specified by law, copies may be made for private study, scholarship, or research. Electronic copies should not be shared with unauthorized users. If a user fails to comply with Fair Use restrictions, he/she may be liable for copyright infringement.

Notice Regarding Intellectual Property

All course materials including but not limited to the syllabus, course assignments, study guides, learning guides, online lecture videos and content, and lab book (i.e. course pack) are property of the instructor and University and may not be shared online or distributed in any manner to others.  Students are prohibited from posting course materials or notes online and from selling notes to or being paid for taking notes by any person or commercial firm without the express written permission of the professor teaching this course. Doing so will constitute both an academic integrity violation and a copyright violation. Violations of copyright laws could subject you to civil penalties and criminal liability. Violations of academic integrity may subject you to disciplinary action under University policies.

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(Where can I go on campus for help?)

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