Owning and Using Scholarship: an IP Handbook for Teachers and Researchers
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Owning and Using Scholarship: An IP Handbook for Teachers and Researchers Kevin L. Smith, JD Association of College and Research Libraries A division of the American Library Association Chicago, Illinois 2014 The paper used in this publication meets the minimum require- ments of American National Standard for Information Sciences– Permanence of Paper for Printed Library Materials, ANSI Z39.48- 1992. ∞ Library of Congress Cataloging-in-Publication Data Smith, Kevin L. (Kevin Lindsay), 1959- author. Owning and using scholarship : an IP handbook for teachers and researchers / Kevin L. Smith, JD. pages cm Includes bibliographical references and index. ISBN 978-0-8389-8747-6 (pbk. : alk. paper) 1. Intellectual property--United States. 2. Copyright--United States. 3. Fair use (Copyright)--United States. 4. License agreements--United States. 5. Learning and scholarship--United States. 6. Commu- nication in learning and scholarship--United States. 7. Research- -Technological innovations. 8. Creation (Literary, artistic, etc.)- -Research. I. Title. KF2994.S63 2014 346.7304’8--dc23 2014041050 Copyright ©2014 by Kevin L. Smith, JD All rights reserved except those which may be granted by Sections 107 and 108 of the Copyright Revision Act of 1976. Printed in the United States of America. 18 17 16 15 14 5 4 3 2 1 Owning and Using Scholarship: An IP Handbook for Teachers and Researchers is licensed under CC BY-NC 4.0 Contents 1 TECHNOLOGY AND THE GROWING PROBLEM OF INTELLECTUAL PROPERTY IN ACADEMIA 1 A Revolution in Copyright Law 3 The Digital Revolution 8 Living in Revolutionary Times 17 2 WHAT IS INTELLECTUAL PROPERTY LAW AND WHY DOES IT MATTER? 21 Is “Intellectual Property” the Right Name? 22 Copyright 25 Purpose and Character 25 What Can Be Protected? 27 Exclusive Rights 29 How Protection Arises 31 Copyright Term and the Public Domain 32 Infringement and Exceptions 34 Patents 37 Purpose and Character 38 Scope of Patent Protection 40 Scholars and Patented Inventions 41 Obtaining a Patent 42 Duration and Enforcement of Patents 44 Trademark 45 Purpose and Character 45 Scope of a Trademark 46 Obtaining and Maintaining a Trademark 48 Scholars and Trademark Use 50 Trade Secrets and the Role of IP in Scholarship 52 iii iv CONTENTS 3 WHO OWNS SCHOLARLY WORK? 55 Copyrights and Patents on Campus 57 Owning Copyright 60 Joint Authorship 60 Research Example—Joint Authorship 62 Work Made for Hire 63 Research Example—Work Made for Hire 65 Work Made for Hire—The Common Law “Teacher Exception” 66 Work for Hire and New Forms of Scholarship 69 Teaching Example—Work Made for Hire 70 University IP Policies 71 Copyright Policies 72 Teaching Example—The Rise of MOOCs 73 Research Example—Policy Application 76 Patent Policies 76 Trademark Policies 79 Conclusion 80 4 USING COPYRIGHTED WORKS IN SCHOLARSHIP 83 Is the Work I Want to Use Subject to Copyright Protection? 85 Works Published before 1923 86 Teaching Example—Public Domain Works 87 Works Published in the United States between 1923 and 1963 87 Federal Government Works 89 Research Example—Government Work 90 Works Lacking Minimal Creativity 90 Teaching Example—Photographic Reproduction 91 The Internet is NOT the Public Domain 92 Teaching Example—The Internet 92 Contents v Is There a License in Place that Governs My Proposed Use? 93 Commercial and Online Licenses 94 Blanket Licenses 95 Teaching Example—Course Content 96 Creative Commons Licenses 97 Research Example—CC Licenses 99 Is There a Specific Exception in the Copyright Law that Allows My Proposed Use? 99 Performances and Displays in Face-to-Face Teaching 100 Transmissions of Performances and Displays 102 Teaching Example—Hybrid Courses 107 Is My Proposed Use a “Fair Use”? 108 The Factor Analysis 110 The Second and Third Fair Use Factors 112 Fourth Factor: Effect on the Potential Markets for the Original 113 Controversial and Uncontroversial Fair Use 115 Uncontroversial Fair Use Examples 116 Fair Use Controversies 117 Fair Use Decisions in Academia 118 Who Should I Ask for Permission? 123 Research Example—Permission 126 Conclusion 126 5 COPYRIGHT MANAGEMENT AND THE DISSEMINATION OF SCHOLARSHIP 127 Traditional Scholarly Publishing and Its Discontents 128 Advantages and Disadvantages—Traditional Publication in Subscription-Based Journal 133 Copyright and Control 134 Managing Copyrights 137 The Publication Contract 138 vi CONTENTS Open Access Defined 146 Open Access Definitions 148 Open-Access Options and Peer Review 151 Open-Access Journals 152 “Gold” Open Access—Publication in Wholly Open-Access Journal 158 Hybrid Publications 159 Hybrid Open-Access Publication with Traditional Publisher 162 Self-Archiving and Direct Web Publication 163 Self-Archiving 163 Green Open Access—Self-Archiving after Traditional Publication 169 Direct Web Publication 170 Direct Web Distribution—Blogs and Web-Based Discourse Spaces 175 Conclusion 175 6 BEYOND COPYRIGHT: LICENSING AND TECHNOLOGICAL PROTECTION MEASURES 177 Licensing 179 Licensing in General 179 Publication under License 179 Software Licenses and Terms of Use 181 Individual versus Enterprise-wide Licensing in Academia 184 Creative Commons Licensing 186 Creative Commons Licenses and Open-Access Journals 188 Technological Protection Measures 190 TPMs and the Future 195 Conclusion 196 Text Mining—A Licensing Quandary 197 Contents vii 7 INTELLECTUAL PROPERTY IN A WORLD WITHOUT BORDERS 201 Bounded Jurisdictions in an Unbounded Environment 202 International Treaties 205 Unsettled Questions for the Borderless Digital World 209 Orphan Works and Copyright Reform 209 First Sale in Analog and Digital 212 Conclusion 216 WORKS CITED 217 INDEX 227 This book is dedicated with fondness and respect to the memory of my father, Lindsay Gordon Smith, who taught me both the rigors and the joys of scholarship and research. 1 Technology and the Growing Problem of Intellectual Property in Academia SCHOLARS HAVE always been plagued by an ambivalent attitude toward intellectual property, as the following simple story demonstrates. According to the legend of Saint Columba, who became the fi rst abbot of the monastery at Iona and died in 597 CE, the famous Irish saint was involved in what may have been the world’s fi rst confl ict over academic copyrights. As Butler’s Lives of the Saints (1956, 507) notes, “Like the true scholar he was, Columba dearly loved books and spared no pains to obtain them.” Th e result of this passion was the making of a surrepti- tious copy of a psalter in the possession of Columba’s former master, Finnian. When Finnian learned of the copy, which rendered his own possession no longer exclusive in the land of Ireland, he objected bit- terly. Th e dispute over who should own the copy escalated and eventu- ally reached King Diarmaid, who rendered the fi rst, and probably most cryptic, copyright verdict in recorded history. Diarmaid’s ruling, “As the 1 2 CHAPTER 1 calf belongs to the cow, so the copy belongs to the book,”1 awarded the unauthorized copy to Finnian and led to even greater conflict. Several aspects of this story from the sixth century make it particularly relevant to a discussion of intellectual property for twenty-first-century academics. First, of course, is the fact that both of the contestants for ownership of the disputed book were scholars. The tension, for scholars, between the desire to assert ownership over ideas and their expression and the need to disseminate those ideas as widely as possible in order to encourage learning and increase academic standing has existed for a very long time. And, of course, scholars are today, as they were in Columba’s time, both creators and consumers of intellectual property, a circumstance that does much to explain the persistent sense of ambiva- lence about copyrights. It is worth pointing out that Columba’s copying did not deprive Finnian of the valuable manuscript he had obtained. The “non-exclusive” nature of intellectual property remains a fundamental problem for copyright regulation in particular. Second, we should note that neither Finnian nor Columba had much in the way of economic incentive; their conflict was about reputation more than money. When the modern forerunners of copyright law developed in the seventeenth century, they were always primarily aimed at creating economic incentives, which is one reason they have never fit comfortably with the needs and concerns of scholars.2 As copyright scholar William Patry (2009) notes, these economic incentives work best when consumers set the value for intellectual content and creators benefit directly from that value exchange. For academics, however, publishing intermediaries both set the value for scholarly works and collect all the profits, so there is a fundamental failure in the incentive structure. Finally, there is a modern ring to the realization that the legal rul- ing intended to settle this dispute did no such thing; ultimately (and 1. The wording of the verdict varies slightly in different sources. This particular version is taken from the modern retelling of this “well-attested” legend by James J. O’Donnell (1998, 92). 2. For the origins of modern copyright law, see Patterson 1968 and Rose 1993. Technology and the Growing Problem of Intellectual Property in Academia 3 for reasons more complex than just a dispute over rights to a copy of the psalms), Columba’s clan fought a short war with the followers of Diarmaid, which led directly to Columba’s exile and settlement of Iona (see Butler 1956, 508). For us, the point is that, even fifteen centuries ago, legal rules based on analogies with personal or real property (like a cow!) seemed ill-suited to settle the disputes that arise over intellectual property, especially among academics. As we shall see, this “property” language has always been problematic and is especially ill-suited for thinking about IP in the age of the Internet (see Patry 2009, 109–31). The regulation of intellectual property has obviously come a long way since King Diarmaid issued his decision.