13 Copyright

Intellectual Property and Copyright

Intellectual Property refers to creations of the mind – everything from works of art to inventions, computer programs to trademarks, and other commercial signs. This booklet introduces the main types of IP and explains how the law protects them. It also introduces the work of WIPO, the global forum for IP services, policy, information and cooperation. Copyright is a form of protection for intellectual property provided by the laws of the United States to the authors of “original works of authorship” that are fixed in a tangible form of expression. An original work of authorship is a work that is independently created by a human author and possesses at least some minimal degree of creativity. A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time. Copyright protection in the United States exists automatically from the moment the original work of authorship is fixed.

Fair Use and Implications for Copyright

Fair Use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. There are four sections one must consider when examining whether or not their potential use may be justified under a fair use defense:^[1]

1. Purpose and character of the use (commercial, non-commercial, audience size and nature, etc.): Courts examine how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair. Each of the four factors in this section is weighed against each other. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character and do not substitute for the original use of the work.
2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to the copyright’s purpose of encouraging creative expression. Using a factual work (such as a technical article or news item) can be more justifiable than using a creative work, such as a book or a play. In addition, the use of unpublished work is less likely to be considered fair.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: The quantity and quality of the copyrighted material used in the supposedly derivative work are both examined in this factor. For example, if the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use incorporates only a small amount of copyrighted material, fair use is more likely. Sometimes, the use of an entire copyrighted work was found to be fair under certain circumstances, including efforts to preserve copyrighted works for future access. The amount that may be legally copied depends on the type and geographic location of a work. In the United States, twenty-five percent of a text may be copied. At the same time, music works can only have ten percent of their pages copied if they are being disseminated to groups. In any case, users cannot copyright the most important or influential portions of a work. These parts of a work are considered the “heart” of the work.
4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work and whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-based inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or a specific number of words, lines, pages, or copies—may be used without permission.

Public Domain

A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner

Modern Alternatives to the Copyright-Public Domain Dichotomy

Now that I have depressed and stressed you about copyright, it is time to learn that there are alternatives to public domain materials when it comes to acquiring free information and data. Creative Commons licenses, open access materials, and open educational resources are all examples of alternative models of resource propagation that protects intellectual freedom while not require exorbitant sums of money and prohibiting reuse. These models have been developed to promote the sharing and use of creative works, while still providing creators with some level of control over their work.

One of the biggest benefits of Creative Commons licenses is that they allow creators to share their work with others in a way that is legally protected. This allows for the free and open sharing of knowledge and information, which can lead to increased creativity, innovation, and collaboration. Additionally, Creative Commons licenses can be used to encourage the reuse and remixing of existing works, which can lead to new and interesting creations.

Open access is another alternative model that has been gaining traction in recent years. This model allows for free and open access to scholarly research and other forms of knowledge. This is important because it allows for the dissemination of information to a wider audience, which can lead to increased collaboration, innovation, and knowledge sharing. Additionally, open access can increase the visibility and impact of research, which can be beneficial for researchers and the scientific community as a whole. A plethora of open-access article text and visual work databases and research forums exist for a wide range of topics, including:

1. JSTOR (https://www.jstor.org/) – a digital library that provides access to thousands of academic journals, books, and primary sources.
2. Project MUSE (https://muse.jhu.edu/) – provides access to scholarly journals in the humanities and social sciences.
3. Directory of Open Access Journals (https://doaj.org/) – provides access to thousands of open access journals in various disciplines.
4. PubMed Central (https://www.ncbi.nlm.nih.gov/pmc/) – a free digital archive of biomedical and life sciences journal literature.
5. Directory of Open Access Books (https://www.doabooks.org/) – a searchable index of academic books that have been made available for free by their publishers.
6. Open Library (https://openlibrary.org/) – an online library with a mission to provide “one web page for every book ever published.”
7. Artstor (https://www.artstor.org/) – a digital library of over two million images in the arts, architecture, humanities, and social sciences.
8. The European Library (http://www.theeuropeanlibrary.org/) – provides access to the resources of the national libraries of Europe.
9. The Internet Archive (https://archive.org/) – a digital library of Internet sites and other cultural artifacts in digital form.
10. The Digital Public Library of America (https://dp.la/) – brings together the riches of America’s libraries, archives, and museums, and makes them freely available to the world.

Open-access databases also exist for raw or slightly-manipulated open access datasets:

1. The Inter-university Consortium for Political and Social Research (ICPSR) (https://www.icpsr.umich.edu/) – a membership-based organization that provides access to a large collection of social science data.
2. Data.gov (https://www.data.gov/) – a repository of datasets from various government agencies in the United States.
3. The World Bank Open Data (https://data.worldbank.org/) – provides access to data on development indicators from the World Bank.
4. The European Union Open Data Portal (https://data.europa.eu/) – provides access to datasets from various EU institutions and agencies.
5. Harvard Dataverse (https://dataverse.harvard.edu/) – a repository of research data from Harvard University and other institutions.
6. The Dryad Digital Repository (https://datadryad.org/) – a curated repository of data underlying scientific and medical publications.
7. Zenodo (https://zenodo.org/) – a platform for researchers to share and preserve their research data.
8. The Data Repository for the University of Minnesota (https://www.data.umn.edu/) – provides access to a wide range of datasets from the university.
9. Open Science Framework (https://osf.io/) – a platform that provides tools and services for data management and sharing.
10. figshare (https://figshare.com/) – a platform that allows researchers to share their data, figures, and other research outputs.

Open educational resources (OER) are a form of open access that specifically focuses on educational materials. These resources are free and openly licensed, which makes them accessible to anyone with an internet connection. This has a significant impact on higher education, where the cost of textbooks and other materials can be a significant burden for students. However, OER can also have other benefits such as allowing educators to customize and adapt materials to their specific needs, promote innovation and creativity in teaching and learning, and increase access to educational opportunities for students globally.

Creative Commons licenses, open access, and open educational resources are all examples of alternative models that challenge the traditional copyright-public domain dichotomy. These models promote the sharing and use of creative works and have the potential to revolutionize the way we think about intellectual property. By promoting the free and open sharing of knowledge and information, these models can lead to increased creativity, innovation, and collaboration. Additionally, they can increase the visibility and impact of research, and provide access to educational opportunities for students globally. As the world becomes increasingly digital and connected, the use of Creative Commons licenses, open access, and open educational resources will likely continue to grow, and they will continue to play an important role in shaping the way we think about intellectual property and the sharing of knowledge.