Legal Background

 

Overview

Intellectual property is comprised of four sub-areas of law: patent law, trademark law, trade secret law, and copyright law. Of particular importance in higher education is copyright law because it governs who may use original works of authorship and how such works may be used.

The principles of copyright law are rooted in the Constitution’s Copyright Clause  (Article I, section I, clause 8), which provides that Congress has the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….”

The Copyright Act is contained at Title 17 of the United States Code, Section 107 and following. 17 U.S.C. § 101-et. seq.

When anyone, including a student or professor, proposes to use someone else’s intellectual work (for example, in a paper or other publication; as a classroom handout; or even as material on a website), such uses are governed by copyright law. Using someone else’s work may be illegal unless the use is permitted under one of several copyright law provisions.

The "fair use" provisions of the copyright code are contained at  § 107 of the U.S. Code. This provision of the code is stated in terms of principles, and involves a balancing test of the interests of the user (and the public)  and the interests of the copyright owner. If the use is a fair use under the four factors, the work may be used without first receiving permission from the copyright owner.

Use may also be made of works that are in the public domain. This includes works that were never subject to copyright, and works that are no longer subject to copyright. For example, works created before the enactment of copyright statutes, such as the works of Shakespeare are not covered by copyright law, and may used freely.

Almost all works of the United States government both published or unpublished, including all case law, all census bureau data, and all legislative history are in the public domain.  Government public domain materials are those created by employees of the U.S. government as part of their official duties.  This does not apply to material created by a private or semi-private agency of the government or a government contractor.  Certain works commissioned as works for hire by the government may be part of the public domain.  Check the title page or with the agency if you have questions as to public domain status.

Works that cannot be copyrighted due to lack of originality, or because they consist of facts rather than creative expression, such as a telephone book are in the public domain. Works for which the copyright term has expired are also in the public domain. Under the Copyright Term Extension Act of 1998 the duration of copyright is generally the life of the author plus 70 years, and 95 years or 120 years from the year of creation, whichever expires first for  corporate (work for hire) anonymous or pseudonymous works. 

The constitutionality of this law was challenged in the case of Eldred v. Ashcroft. The plaintiffs contended that the term of copyright under the law violated the constitutional provision of a limited term, and did not promote the progress of science or art by granted retroactive copyright.  

The Copyright Term Extension Act allows libraries, archives and nonprofit educational institutions to treat a copyrighted work in the last (new) 20 years of protection as if it were in the public domain for purposes of preservation, scholarship or research.  Conditions that apply to this usage in the last 20 years require a good faith investigation to determine that the work is not subject to normal commercial exploitation, the work or phonorecord cannot be obtained at a reasonable price, and use of the work stops if the copyright owner provides notice to the contrary. With the exception of archiving and preservation, the library copying rights listed do not apply to musical works, pictorial, graphic/sculptural works, or motion picture/audiovisual works other than an audiovisual work dealing with news.  These rights also extend to copying requests made by library patrons or by another library pursuant to an interlibrary loan arrangement.

In addition to public domain or fair use rights, universities and the members of their community may use licensed works according to the terms of the license. For example, if the university is part of a reseach consortium that has access to LEXIS-NEXIS, items from this extensive  database most likely may be used for non-profit educational purposes. Check with a university librarian if you have questions on licensed materials. Faculty, staff and students are encouraged to explore what materials are available to the university community through licensed databases, as it may negate the need to go through the sometimes complicated process of obtaining copyright permission.

The Digital Millennium Copyright Act of 1998 (“DMCA”) makes major changes to copyright law, and attempts to address copyright in the digitally networked environment.  Many questions remain unanswered as to what is “fair use” in the electronic environment and further litigation or legislation will be needed for clarification.

The law has five titles, the first four of which are of interest to postsecondary educational institutions: Title I (WIPO Treaties Implementation), Title II (Online Copyright Infringement Liability Limitation, Title III (Computer Maintenance or Repair Exemption), and Title IV (Miscellaneous Provisions).

 

Highlights of the DMCA include:

• Prohibition on the use of devices designed to illegally copy software except to conduct encryption research, to assess product interoperability, and test computer security systems.
• Insulation of ISPs from copyright infringement liability for transmitting information over the Internet. If the university receives notice of a copyright infringement under this law, and the infringing material is on the university's server, the university must follow the notice and take down provisions of this law.  
• Limitations on liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.
• Allowance for the owner or lessee of a machine to authorize the making of a copy of a computer program for the purpose of repair or maintenance of the computer.
• Requirement that the Register of Copyrights consult with representatives of copyright owners, nonprofit educational institutions and nonprofit libraries and archives to submit to Congress within six months recommendations on how to promote “distance education” through digital technologies.
• Allowance for libraries and archives to take advantage of digital technologies when engaged in specified preservation activities. 
  
  
  
  
  links updated 6/4/08 rab