All creative works are entitled to intellectual property protection. What kind of protection it qualifies for depends on the kind of creative work developed.
Copyright is one form of intellectual property protection for creative works. Once an original work is created in a fixed form, such as being written down, recorded as audio or video, or saved to a computer, it is automatically considered in the United States, and in other nations that are members of the Berne Convention, to be protected by copyright. In order to legally enforce these rights however, a person must register the creative work with the United States Copyright Office.
Trademark protection involves registering the work with the United States Patent and Trademark Office. It protects names, phrases and slogans associated with a good or service.
Patents grant protection to inventions [plant, animal, chemical, mechanical, electrical], unique designs and business methods. They are protected by registering these works with the United States Patent and Trademark Office.
Declaring trade secrets and setting up legal agreements to establish that fact can also protect a creative work.
All of these forms of protection relate to property. As defined in legal terms, property can be registered for protection, bought, sold, or held solely by the owner. With the exception of trade secrets, the basic idea behind all forms of intellectual property protection is to allow the creator of a work to have exclusive rights over, and to benefit from, their creation for a limited amount of time. After that limited time period has expired, the work passes into the public domain, so that society can benefit from and expand upon that creative work.
*Additional restrictions on the use of a work or a resource may be imposed by license or contract.
Key point: Intellectual property is the law that protects the owner or creator of a work or idea, so that the benefit they derive from it is not dimished by others' use.
In academia, certain exemptions are allowed when dealing with intellectual property for scholarly research and personal use. Under Fair Use, small portions of protected intellectual property works can be used to support or refute personal research claims, as well as support or rebut already published research. Such scholarly exemptions are allowed provided proper credit is given using established citation formats such as Turabian, APA, MLA, etc.
Fair Use, as defined in Title 17, Section 107 of the United States Code, states that:
"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."
Title 17, Section 107 of the Code also outlines the factors to be considered when determining if a particular use is fair. These factors "shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Key point: Fair use allows the duplication of "small portions" of a work for education purposes that would be otherwise restricted under intellectual property law.
Academic Integrity & Copyright
Academic integrity and copyright are the ethical and legal sides of the same coin; they both address how intellectual property can be employed in a research environment. Even those making use of a work under the Fair Use guidelines must give credit to those who originally created a work. Omission of credit is tantamount to plagiarism or stealing. Giving proper credit can easily establish that the works that were used were not stolen.
When protected intellectual property works are used for personal use, it is with the understanding that the person using the works will not earn money from this use, nor will they abuse the exemption rights granted under current Federal statutes. When individuals use the copyrighted materials of others for personal gain, they may well lose any fair use exemptions and be required to obtain specific permission from the copyright holder.
Key point: Plagiarism is a separate concept from intellectual property, but acts of plagiarism or academic dishonesty might also infringe on copyright.
Databases and Electronic Journals
Intellectual property law does not explicitly prescribe limitations regarding the downloading and printing of electronic resources. However, the publishers of electronic resources are usually very explicit regarding such limitations and ultimately less tolerant in their definition of acceptable practices. As a result, the electronic resource licenses to which the Texas A&M University Libraries subscribe are much more restrictive than copyright law and therefore, any perceived abuse of activity in using an electronic resource can result in the temporary or permanent termination of access by a database publisher.
The University has access to the content of these databases and electronic journals because of a negotiated license or a contract. Should the terms of a license be violated, the publisher then has a cause for cutting off access to its property for the entire University. So far the identified instances of abuse of our database licenses have not resulted in such an action, but clearly publishers are watching for abuses, and they are calling such instances to our attention for corrective action. The instances in which we have been notified by vendors of abusive behavior have involved the downloading of hundreds of pages of content, including entire issues of journals, in the span of a very few hours.
While the wording may vary from license to license, the following terminology (taken from the JSTOR license) is typical of the conditions the University accepts in order to gain access to an electronic resource:
- "User Rules" means those terms and conditions for use of the Database that appear on certain screen displays in the Database, and/or on the first page of printouts of Materials, as such may be amended from time to time, or that are otherwise provided to Licensee or to Authorized Users by JSTOR. The User Rules shall include, but not be limited to, the right to make one printed copy, and one electronic copy for storage purposes, of an article or articles from the Database, solely for an Authorized User's personal, noncommercial use.
- No use that exceeds the User Rules may be made of the Database other than as provided herein. It is understood that the purpose of JSTOR is to provide effective preservation of scholarly journals, and facilitate access to such journals by Authorized Users. Accordingly, Licensee may not utilize the Database for commercial purposes, including but not limited to sale of Materials, fee-for-service use of the Database, or bulk reproduction or distribution of Materials in any form; nor may Licensee impose special charges on Authorized Users for use of the Database beyond reasonable printing or administrative costs. Furthermore, under no circumstances may Licensee: remove, obscure or modify any copyright or other notices included in the materials; use Materials in a manner that would infringe the copyright therein; or copy, download, or attempt to download an entire issue or issues of a journal from the Database.
Fair use guidelines that have been used by libraries and educational institutions since the mid-1990s have held that a "safe harbor" position in regard to copying published works is the copying at one time of one article out of a single issue of a journal for personal research purposes. So far, this guideline has not been widely challenged by publishers. In part, this lack of a challenge may be more a reflection of the difficulty of monitoring photocopying. In an electronic environment, we can be assured that the kinds of monitoring that have prompted complaints from publishers will continue. One article out of one issue at a time may not be an appropriate safe harbor in the electronic environment, reasoning that users may choose to print out more material rather than read many pages on a computer screen. It is equally clear that the downloading of scores of articles, including entire issues of journals, in a very short period of time can be expected to be viewed as abuse of license terms.
Key point: While there are no specific guidelines for how much it is permitted to download or print out, downloading or printing out large amounts, such as entire books or journal issues is most likely not supported by fair use and is an infringement of intellectual property law and in violation of license agreements, which could result in termination of access.