Yours, Mine and Ours: Copyright in Cyberspace

2005 National LTAP Conference July 26, 2005 Nita Lovejoy Iowa State University

Danger, Proceed with Caution

Laws of the internet

• • • •

Intellectual Property Laws:

patent, copyright, trade secrets, trademarks and service marks

Contract laws:

access agreements licenses, confidential information,

Fraud, false advertising:

state and federal law

Trespass to chattel, access rights, information theft, rights to integrity

(generally state laws, rights to assure accurate information – copyright moral rights)

Laws of the internet

•

Security and privacy:

federal and state •

Conversion:

state law, wrongful taking of property, generally tangible property •

Misappropriation:

taking of factual information for commercial use (“hot news”) publicity, trade secrets, trademarks, •

Export control, interstate commerce authority vs. state authority, federal communications regulations, antitrust

(telecommunications; broadcast; and cable): federal •

Tax

: state and federal

Lawlessness of the internet

•

Publish without considering source of content or extent of permission

•

If it’s available on the internet, it’s free for me to use

•

Security breaches, private information leaks, phishing

•

Plagiarism

•

Export control violations

•

Publishing “how to” manuals for illegal purposes

Why protect the intangibles of intellectual creation?

•

Purpose of patent and copyright laws

– “...to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries." – The historically supported philosophy behind the drafting of this clause was the encouragement of the free flow of information for the benefit of society.

Problems with copyright laws

•

Clashing of laws with needs – the balancing problem in Copyright

– Balancing private and public interests in information & creations – Legislation – who has the power to influence: Problems with Digital Millennium Act, Teach Act, and Balance Act – Current issues • MGM Studios v. Grokster Ltd • State immunity to infringement • Publishers

Problems with copyright laws

•

Copyright subject matter is original expression in some tangible form:

standard of creativity is very low •

Laws can’t keep up with technology

What does copyright protect?

•

Original works of authorship in a tangible medium of expression

– The individual’s unique way of expression – Minimal creativity required – Must be able to be perceived by the eye or machine

What is

not

protected by copyright?

•

Works which are trivial and without creative substance

•

Ideas, procedures, processes, systems and methods of operation

•

Principles, concepts, plots

•

Facts, data: “merger doctrine”

•

Local, state, and federal laws including judicial opinions

•

Works created by federal employees

When does copyright begin?

Protection is

automatic

once the expression is fixed in a tangible medium

Copyright rights

• •

Owners of the copyright have the limited exclusive right to:

– Make copies – Create derivative works – – Distribute Display and perform publicly

Publishing on the web will likely involve the copy, distribute, and display rights

Yours, Mine and Ours

We are users, individual creators, and joint creators of copyright works

http://www.techtransfer.iastate.edu/

• • •

Using copyright works

Public Domain

– Not covered by copyright (or trademark or patent) • Copyright protection expired • • Not copyright subject matter Owner has dedicated it to public domain – Owner explicitly places in public domain http://www.unc.edu/~unclng/public-d.htm

Permission

http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm

Legal Limitations to owner’s rights

– Fair use – Libraries special exemption – – Educational performances and displays Software backups

Fair Use

•

Copyright law includes illustrations of fair uses and 4 factors that must be analyzed

– Illustrations: criticism, comment, news reporting, teaching, scholarship and research, parody – 4 Factors of Fair Use • Character of the use • Nature of the material to be copied • Amount & importance of the part of the work used • Effect on the market

Applying the 4 factors of fair use

Character of Use Favoring Fair Use Criticism, comment, parody, news reporting, non-profit teaching, parody, scholarship & research Published, factual, nonfiction Unlikely Fair Use Commercial, profiting from use, entertainment Unpublished, creative, fictional Nature of Original Work Amount & Importance Effect on Market Small amount, not the central portion or heart of the work 1 or a few copies, presentations, lack of licensing mechanism Images, large portion, full chapter, portion is heart of work Resale, replace the sale of original, licensing available, several copies, web accessible

Myths

• • • • •

If it is on the internet, it is in the public domain.

– What is public domain?

If it is government work, it’s free to use.

– What is government work?

It’s okay to use someone’s material as long as I give credit.

– What does “use” mean?

I created it, I own it.

– What is “work for hire”?

If I don’t charge for it, it’s not an infringement.

Protecting your copyright work

• • • •

Protection is AUTOMATIC Advantage of copyright notice Example notice: © Copyright 2004 Iowa State University Animal Science Department, College of Agriculture 515-294-2160 Advantage of registration

Staying out of trouble

•

Assume it is copyright protected

– Getting permission is not easy – – Only the copyright owner can give permission Create your own material •

Read click-wrap agreements

– Read – each is different – Reach through rights •

Linking to other web pages

– Framing – Inlining (Mirroring) content •

Protect your work

– Be careful about placing in the public domain – – Use the copyright notice Provide written permissions

A new movement

• http://creativecommons.org/learnmore