Copyright and Intellectual Property FAQ

Disclaimer

Prepared by the Copyright and Intellectual Property Office, 13 September, 2003

Please use the links below for quick access to information on intellectual property and copyright law:

• Intellectual Property: General Information
• Copyright Law: General Information
• Fair Use
• Getting Permission
• TEACH Act
• Liability and Infringement Claims
• How Long Does Copyright Last?
• Plagiarism
• FAQs from Students
• Student Plagiarism
• Student Intellectual Property
• Further Resources
• Appendix A: When Works Pass into the Public Domain
• Take a tutorial quiz and earn a certificate

Intellectual Property

"What is Intellectual Property protection?"

There are four basic types of intellectual property protection: patents, which protect practical and technological inventions, copyright, which protects creative ideas, trademarks, which protect corporate symbols, and trade secrets, which protect unpublished materials that a business may want to keep confidential.

As a faculty member and an employee, do I own the rights to my own intellectual property at Fort Hays State University?"

According to the law and the Fort Hays State University Faculty and Staff Handbook, your routine work as a faculty member is not "work for hire," and therefore you own our own products, unless there are other unusual circumstances. For example, the Virtual College policy is different, and may include ownership stipulations for the Virtual College. Most of the time, you own the work unless you have signed over the materials to a publisher.

Want to know more?

"What is 'work for hire'? Are there any circumstances in which faculty perform 'work for hire'?"

Faculty work for hire may be commissioned or may be a consulting appointment. Here is an example: A faculty member at Fort Hays State University was commissioned to create a sculpture for the university using a new process that she had developed. She was paid a one-time fee for the sculpture, which the university now owns. If she leaves, she may not take her sculpture with her, although the new process remains hers to use in other creations.

"How do I protect my own intellectual property?"

There are several steps that you can take:

• Be aware that all materials in expressed form (including software programs) are automatically copyrighted. No one has the right to your material without your consent.
• Put a copyright symbol, ©, on your work. A"c" in parentheses will not work; you need the actual symbol, which is available in Dreamweaver software under "symbols," or you can insert a symbol in Word. Especially on the web, inserting the copyright symbol will help prevent the illegal use of your property, because many people assume incorrectly that if an item is not marked with a copyright symbol and it is on the web, it is in the public domain.
• Register your work with the U.S. Copyright Office (it is inexpensive; usually only $30) to make it easier to prove ownership. This will be helpful, for instance, if you have an infringement claim. We can help you find the right forms.
• Or consider filing a patent, if appropriate: patents, with a duration of 20 years, serve a functional purpose, covering inventions, designs and plant modifications. This is much more expensive and must be renewed through an act of Congress, and no act of Congress has ever renewed a patent. A patent does, however, have some stricter controls: only individuals may file, and no fair use is allowed. You may also get a trademark for a phrase, word or symbol, which is also somewhat more expensive than copyright. Duration and renewal of a trademark is ten years.
• Stay informed about the fast-changing laws of intellectual property. Visit the Copyright and Intellectual Property Home page for announcements of workshops or request a presentation for your students or department.
• Be aware of FHSU IP Policies, of the AAUP views on distance education IP, and The University of Texas link on Copyright Management guidelines for best IP practice.
• Consider supporting more collegial models of intellectual property use that would benefit the scholarly community: Cultural Commons provides models for terms of use that you can tailor to allow scholars to use your material while for-profit organizations will need permission or will have to pay.

"I am negotiating a book contract and I want to know what to do."

" Best practice" includes not only having a clear university ownership policy in place, but protecting academic culture (including yours):

• Retain the right to the prepublication drafts for further development of your ideas.
• Keep control of what is done with the work by retaining right of first refusal, of being consulted regarding any changes in your work, and by reserving the right to update your work as you see fit.
• Try to get a non-profit-friendly statement on your publication stating that individuals working for nonprofit educational organizations may make fair use of your work online or off-line for educational and research purposes without permission.

"I have been looking for the owner of a book. I want to analyze a large passage from the book in my own book, which is due to come out early next year. I have tried and tried, and cannot find the owner."

Even if the owner can't be found or doesn't care, you could still be liable for infringement claims. In the event of an infringement claim, copyright would protect the owner. While a thoroughly documented unsuccessful search for an owner would probably benefit your case of fair use and good faith, there is no guarantee; the courts have not ruled on this type of case. It may be, however, that this risk of infringement is low and the importance to your project outweighs any risk of infringement claim. Fort Hays State University recommends that if you think that the importance is sufficient, you should consult with the University General Counsel and then make an informed decision.

Want to know more? The University of Texas Systems Crash Course on Copyright has a helpful link on managing intellectual property.

Return to top

Copyright Law: General Information

"Much has changed. What is Copyright Law now?"

Although there are some new laws that govern digital media, the U.S. Copyright Law of 1976 (Title 17) still forms the basis of American Copyright law. Under Title 17, "Copyright" grants exclusive use of a work for a limited time to an owner or author of literary, dramatic, musical, artistic, and some other intellectual works.

One important new development is that copyright protection is now automatic once an original work is in some tangible or fixed medium: written (including computer programs), filmed, recorded, sculptured, etc. It is no longer necessary for the work to be registered or marked as copyright protected.

"What is the DMCA and why is it law now?"

The Copyright Law of 1976 was the beginning of legislation trying to deal with the new ease of copying works. Back then, the issue was copy machines. Now it is digital technology, which makes a perfect copy of an item. Some argue that this perfection in digital reproduction makes it more than a copy, that to create a digital copy is to publish an original.

Because of these considerations, the laws that have been created to regulate electronic means of reproduction are very stringent and carry severe penalties. What is more, individuals are being prosecuted for violations, are paying stiff fines and are facing lengthy sentences. You can visit our link on the DMCA and TEACH for more information regarding these new additions to copyright law.

"Why should a small university like ours be concerned with intellectual property and copyright? We are below the radar, aren't we?"

Nobody is "below the radar" in the digital age. The Digital Millennium Copyright Act of 1998 prohibits circumvention of copyright protection devices on the web and prohibits piracy of all web resources. It stipulates stiff penalties even for individual offenses. We should also think in terms of setting an example of "best practice" for our students: knowing the law, respecting author's rights, and protecting our own rights and privileges. We should also take advantage of the "fair use" provisions of the U.S. Copyright Law that, if ignored, will be replaced with much more restrictive guidelines. Finally, we should protect our own property.

Want to know more? Visit the U.S. Copyright Office Basics Page and the U.S Copyright Office Summary of the Digital Millennium Copyright Act of 1998.

Return to top

Fair Use

"What is 'Fair Use'?"

Section 107 of the 1976 U.S. Copyright Law creates a limitation on copyright protection called "Fair Use." It protects socially beneficial borrowings of copyrighted works. It is not permission to use all copyrighted works at will for "education." Indeed, even in 1976 the requirements of fair use reflected a concern that Fair Use might be abused.

News media, educators, nonprofit organizations and researchers may use materials that are copyrighted without permission, within legal guidelines that consider all of the following four factors; usually, several factors need to be operative to be Fair Use:

1. Purpose should be not-for-profit (but this will not stand alone).
2. Nature of the work: usually non- fictional works better than fiction, for example.
3. Portion of entire work should be small.
4. Market Impact should be negligible.

"Does "Fair Use" still apply after TEACH and the DMCA?"

The language of both of TEACH and the DMCA, which are now integrated into U.S. Copyright Law, preserves the Fair Use exception for nonprofit educational organizations.

"Is it "Fair Use" to use licensed works without permission for a class or for research?"

• Licensing agreements in the United States may limit Fair Use; be sure to read the terms of use provisions on licensed works.
• Librarians who purchase databases for the public must carefully scrutinize the terms of any licensing agreements.

Want to know more? Visit our Basics Page for tutorials and Fair Use information.

Return to top

Getting Permission

"How do I get permission to use a copyright-protected work in my teaching without going crazy?"

Here are some suggestions:

• Use our permissions service. We will track your publisher and do the paperwork for you for your coursework. If you have permissions needs for a publication, your publisher should be willing to do the work for you. (Note: as of 8/05, the copyright specialist will be leaving and permissions service may no longer be possible. Please visit the permissions page for guidelines on getting permission.)
• Start early. 2-4 months ahead of your deadline is not too soon. Music companies are used to permissions requests and are faster to respond, once they are located, but booksellers are notoriously slow.
• Visit the FHSU Faculty Resources Quick Link. There is a section on permissions that includes downloadable forms to adapt and use. Our forms are likely to get the best results because they include most of the information that companies want, saving time in writing back and forth. The area at the bottom allows the company to respond with any additional concerns. You may use the FHSU forms and reconstruct them to suit your needs.
• If you go it alone, use Our permissions article, the Kansas State University Permissions Page and the UT Systems categories of rightsholders to help you locate elusive owners such as: publishing clearinghouses, image archives, music, foreign collectives, films, and much more. Knowing about these resources can save much time.
  

"I would like to use a student's paper on my web site as a writing example. Do I need permission for that?"

Like all other tangible expressions of intellectual creativity, a student's paper is also automatically copyright protected, and you need to get permission from the student to use her or his work. Contact us for a form that you can use.

"We have images of students and faculty on our departmental web site. Is there any problem with that?"

In the case of the students, it is important to protect their privacy and get their permission to have their images on the web. If they are underage, parental consent will be necessary. As a matter of best practice, be sure, as in all situations in which you seek permissions, to keep good records of your permission requests and the responses, and to call us, 628-4342, if there are any questions. As a matter of good form, faculty should also be requested for use of their images.

" I assume that I don't have to get permission if the item I am capturing from the web is from a foreign source."

The United States has treaties with most countries and treaties cover copyright. The foreign country's rules may be stricter in some ways than those in the United States. If you want to use a foreign source, please consult us first.

Return to top

TEACH Act

"What is the TEACH Act? Where can I find out more about it?"

The TEACH Act (Technology, Education and Copyright Harmonization Act) of 2002 is now part of U.S. Copyright law. It brings copyright law into the digital age, allowing nonprofit, educational institutions to transmit materials in a digital environment once certain definite restrictions are met. The TEACH act allows:

• Transmitting performances of ALL of a non-dramatic musical or literary work.
• Transmitting "reasonable and limited portions of any other performance."
• Transmitting displays of any work or still images.
  Please consult us for more information. And remember, there is still fair use and permissions to consider if TEACH does not apply to what you want to do.

Caution: Unlike Fair Use, TEACH has numerous very specific conditions that need to be met. Please read the following questions and visit the link provided at the end, or call us at x4342 for more information.

"I have a great article that I just found. It will be perfect for my online class that I am teaching just now. Can I put it up on the web?"

You may be able to do this under the TEACH Act of 2002, but please consult us: (785) 628-4342. Also, please read the next two questions, which are on TEACH.

"The TEACH Act sounds great! Now I can digitize all the materials that I need for my students and just leave it up on the web!"

Sorry, but it is more complicated than that. Like the Fair Use provisions provided by the U.S. Copyright Act of 1976, TEACH does not allow educators to substitute reproductions for materials that could be purchased elsewhere at a fair price.

TEACH Act - Amended Section 110 (1)-(2)

Want to know more? Visit our page on The TEACH Act.

Return to top

Liablity and Infringement Claims

"I have to create a web site, but I am really afraid of lawsuits."

• Be aware that all materials expressed in tangible form (including software programs) are now automatically copyrighted.
• It is not a violation of copyright law to point to web sites without permission, provided that you are not linking to a fee-based source. It is, however, "best practice" to notify the site of your intent to link. "Dot-edu" sites are usually happy to learn that they are going to be featured on another site, and may point back to your site as well. "Dot-com" sites usually ask that you point to the home page and instruct the user how to link to the desired page.
• Visit MIT World for an example of how to use your own creative resources on the web to build a "Cultural Commons" that will customize your personal terms of use.
• Visit the FHSU Copyright and Intellectual Property Web Site for more connections to informative links.
• Use the Fair Use chart (contact us for a copy) and visit the FHSU Copyright and IP site for links to Fair Use resources.
• See Appendix A, at the end of the FAQs, for a chart that explains how long copyright lasts. If a work is old enough to be in the public domain, that means that it is available for use without permission. Works from the government are also in the public domain, with the exception of copyright protected materials that are so specified in government documents and which have been used by the government with permission, and materials housed in presidential libraries.
• Attend the FHSU Copyright and Intellectual Property Workshops announced on the home page of the Copyright and IP Center.
• Visit our Fort Hays State University Copyright Tutorials on Copyright Basics and New Laws
• Contact us with specific questions.

"I am organizing a conference and I want to put abstracts of the papers online. Any problem with that?"

Not unless the abstracts are substantive statements of the content. A general overview of what is going to be addressed will simply encourage people to attend the session. If you want to put up full abstracts or texts, get permission from the speakers.

"I have been accused of infringing on someone else's intellectual property. What should I do?"


If the alleged infringement is up on a web site, take it down immediately. Then, whether it is online or a print infringement claim, contact the Fort Hays State University General Counsel or another attorney by telephone before replying to the accusation (Call 785-628-4233). You should also call the infringement agent for FHSU and make sure that he is aware of any claims of infringements in a distance setting, whether it is on the Internet or on cable (W: 628-4487, H: 792-2982).

Follow your attorney's advice.

Return to top

How Long Does Copyright Last?

"How long does copyright last, and is it shorter for software?"

As a general rule of thumb, copyright lasts for the life of the author plus 70 years. There are specific guidelines for certain types of material. Like other copyright-protectable intellectual property, software is copyright protected for at least 95 years.

"I am re-creating a password protected web page that became unavailable a few years ago. I really need it to teach my class. I am not copying it exactly, of course, but it is very similar. That is surely OK, isn't it?"

It sounds as if you plan to create something very similar, too similar to be fair use. Even if the company is not using it, that doesn't mean that they intend to give their concept away. Please telephone University General Counsel or a copyright attorney, and be ready to consider changing your class structure based on your lawyer's advice.

"I only use out-of-print materials in my online class, so I don't need to worry.."

This is a common myth: that out-of-print materials are always in the "public domain" and can be used without permission. In reality, much material that is out of print is not in the public domain. As a rule of thumb, an item enters public domain for the life of the author plus 70 years. There are even longer durations, however. Please consult this chart for guidelines about written matter, and consult the Copyright and Intellectual Property Office regarding other materials.

And please keep this in mind: what is available in the public domain are government documents, excluding documents from libraries, and "freeware." Freeware is not "shareware," which pirates protected property, but consists of sites on the web that explicitly state that their material can be used without permission.

Return to top

Plagiarism

"What is the best way of dealing with plagiarism?"

From the perspective of a faculty member, the best medicine for plagiarism is prevention. There are ways to design a course that require frequent reviews of student progress on a paper. Please visit the FHSU Copyright and Intellectual Property web site's article on plagiarism, which covers such preventive measures in detail and also explains how to deal with situations that arise.

The Head of the Copyright and Intellectual Property Center is also available to give presentations to your class on plagiarism. Please contact us for more details.

"I think that one of my students is buying papers online. I don't know how to prove it."

Our faculty resources quick link contains general information on plagiarism. It includes links to resources as well as an article of our own that links to sites for testing papers. Such sites are limited and may violate students' rights to the copyright ownership of their work. As the article states, it is more important to create the kinds of assignments that make plagiarism difficult or impossible. There are recommendations about how to structure assignments that make cheating difficult. Fort Hays State University is considering access for all faculty to Turnitin.com. While this software is not foolproof, it has stored most fraternity and sorority papers, searches databases, and searches Google, giving the faculty member a split results screen highlighting suspect passages and linking them to the sources that it found. It also recognizes legitimate citations and will not highlight those. Please contact us for more information: call x4431.

Return to top

FAQs From Students:

Student Plagiarism

"Is plagiarism against the law?"

It may or may not be a violation of the law, depending on what materials you have plagiarized. It is always a violation of university policy to use others' work without giving credit for it. For more information, visit the links on plagiarism on the Student Resources page.

" I have been reading about copyright and the laws look pretty tough. I wonder if I am breaking the law when I turn in a paper where I've used others' work."

Congratulations on getting informed regarding copyright. The law is complex and should be carefully considered.

Fair use is an exception to the law that allows people to use others' work without permission in an educational setting. If you are simply handing in an unpublished paper, you should use small amounts of the works that you want to cite. If you are creating a project to put up on the web, you should visit Hall Davidson's Fair Use article in Technology and Learning. There is a link at the end of his article to a fair use chart, which offers general guidelines within the law. Don't hesitate to consult us if you have any questions; these are only guidelines within the law, not the law itself. Your use may be different from what is discussed. You might also want to bring along some friends and attend one of the workshops that we offer on copyright or ask your professor to contact us and request a presentation to your class. We can also make a presentation to your student organization on student use of copyright protected materials.

"I have a friend who has become close to a senior and really admires him. The senior thinks it is a big joke to share his old papers with newer students and let them pass it off as their work. What should I do? I don't want trouble, but I did the work in class myself that my friend is getting credit for, and it doesn't seem fair to let this other person give him a free ride."

This is a decision that you will have to make for yourself. Here is a suggestion: if you are not comfortable talking directly with your friend, perhaps you can quietly and even anonymously notify the professor of your concerns. There is an argument that "everyone does it," but the statistics show that, by far, most students do not cheat in college.

"I am afraid to cite papers online because the teacher grades us down a lot if we get the least little thing wrong."

The student resources page links to some general principles about how to cite a document properly. We will soon have another link to our own diagrams, showing what details to pay attention to when citing documents in MLA and APA style online. If you have time, why not show your teacher some samples of your citations and find out if you are doing it according to what he or she wishes? Also, any librarian will be happy to help you decipher the MLA and APA handbooks of style rules for research papers.

Return to top

Student Intellectual Property

"A teacher wants to use my paper on his web page. Can I use it later on for an article, or would she own it?"

You own your work unless you explicitly sign an agreement transferring your ownership. If your teacher asks to use your work online, it is a wonderful opportunity and a great compliment. Be sure that you can retain the rights to your drafts. For more information, visit the Student Resources page and click on the links under "Intellectual Property."

"My friends and I use MP3 to download music and videos all of the time, but we are not dumb. We don't turn around and resell it on the web."

You may still be at risk, and the laws are getting more stringent all the time. Information about the laws and about recent penalties can be found on the Student Resources page under "Copyright Laws…" and you might also want to read a letter to The University Leader from the Copyright and Intellectual Property Center about this subject. And please be aware that "sniffer" programs continue to gather information and increase in intelligence and discrimination.

"Some of these new bills are an outrage! But what can you do?"

There is an old saying that we get the kind of government we deserve. An informed, law-abiding and involved citizen can make a difference. We continue to track legislation on the Copyright and Intellectual Property web site under the New Laws and Litigation quick link; visit it for accuracy. Also consider making use of our link to government officials. Your input can affect the legislation.

Return to top

Further Resources

" Where can I find more FAQs on Copyright? I'd like more details, and I have some questions that are not answered here."

• The CENDI Copyright Taskforce FAQs go into depth with these and other questions and answers. Remember, you can search both our site and Cendi's for specific words by clicking on "Edit," selecting the search function, and typing in the desired word or words. You can then repeat the search until you have found the answer to your question.
• Forsyth Library has a book of copyright questions that would be of use to anyone:

  Minow, Mary and Thomas A. Lipinski. The Library's Legal Answer Book. Chicago: ALA, 2003.

  Minow is an attorney and Lipinski has a doctorate in Library and Information Science.

• Finally, don't hesitate to ask the Copyright Librarian if you need information and don't have time to search.

Return to top

"Can I test my knowledge of Copyright and Intellectual Property?"

Yes. Take our interactive quiz.

Appendix A: When Works Pass Into the Public Domain

Originally created by Lolly Gasaway
University of North Carolina

Reproduced with permission. Please visit the original at: http://www.unc.edu/~unclng/public-d.htm.

* Term of Joint works is measured by the longest-lived author

** Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. sec. 302 (c).

***Under 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if, e.g., registration was made within five years. 17 U.S.C. Sec. 405. (Notes courtesy of professor Tom Field, Franklin pierce Law Center).

Please contact Lolly Gasaway, UNC, for permission to use this chart.

Return to top

This Page Last Reviewed 7/05