Copyright for Educators

Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case?

According to the scenario, the only material that still exists under copyright is Professor Dube’s original research and the journal article that she has, most likely, licensed to the publisher, which has now been recently published. The data and images, presented alongside her previous research, resides in the Public Domain including the following: the bishop’s account; the products produced by a government agency (e.g., NASA); and the factual weather data.

The personal account was published before 1923, therefore places it in the public domain (Brewer, 2007), and ‘NASA still images…generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for education or informational purposes’ (NASA, 2008). In addition to this the factual data on local weather patterns. Example that exist in the public domain include facts, ideas and news (Canadian Intellectual Property Office, year, p. 5).

Finally, Dube’s previous research can be used in any way she deems fit as it belongs to her, however the rights, or assignment thereof, of her recently published journal article, belongs to the publisher. There may have been a clause in her agreement with the publisher for a reversal of these rights after a certain amount of time, but this we do not know.

What could Professor Dube do about the refusal to allow her to assign her own article?

The publisher of the academic journal holds copyright on the publication, not the author. Some journals will give consent for the author’s free personal academic use. In this case, since the publisher has refused, Professor Dube’s best strategy is to provide her students with a pre-publication draft.

The factual, public domain text and non-copyright satellite images are not subject to copyright, as has been noted. (We assume the weather data has been collected as part of Professor Dube’s research, rather than from a commercial database.) Anyone can re-use these materials. The text should be a pre-peer review version which differs from the published paper to avoid giving grounds for legal action from the journal.

An alternative variant is to quote from the paper using the standard copyright exemption for scholarly use and criticism, though only extracts or paraphrasing may be used. In this example the Professor is in the same position in relation to the copyright of the work she produced as in using work by another author published in the journal. In Commonwealth countries, such scholarly use for criticism is known as fair dealing.

Questions:

What is copyright?

Copyright is a set of rights and permissions that governs the expression of ideas created by an individual or corporation. They are a series of measures that set out the incentives of creation. “Copyright law has always been a balancing act between the rights of creators and the rights of the public” (Electronic Frontier Foundation, http://www.teachingcopyright.org/curriculum/hs/2). Increasingly the digital world has blurred the lines between creator and consumer and the use of copyrighted material online is under stress from both sides. The application of copyright that is held by an artist is usually through the use of exclusive licenses or assignments that “describes the transfer of copyright from one holder to another” (Hofman, 2008, p. 48)

What activities does copyright prohibit?

Copyright grants an exclusive right to determine the use and expression of a creative work. Thus, without the permission of the copyright holder, a work may not be reproduced, distributed, performed, or commercially exploited. Although most legal attention is directed at the commercial use of copyright, it is worth noting that artists sometimes refuse permission for the use or re-use of their work because the meaning would be changed in its re-use or re-interpretation.

Does copyright cover ideas or only expressions?

Copyright does not protect ideas. It is limited to “the expression in a fixed manner” (Hofman, 30). In other words, copyright applies only to works that have been written or recorded and does not apply to the fundamental concepts themselves (Frequently Asked Questions About Copyright, http://www.cendi.gov/publications/04-8copyright.html). Ideas are considered public domain and are not subject to copyright laws (Canadian Intellectual Property Office: A Guide to Copyrights, 5). One may circumvent this restriction by creating a preliminary version of the idea. Once the idea is recorded in a fixed medium, it is automatically protected by an all rights reserved model.

What requirements must resource meet for copyright to apply?

For copyright to apply, a resource must be an original creative work. Copyright restrictions in most countries also require the work to exist in a fixed medium. The Berne Convention governs that copyright automatically applies to a resource the moment it is fixed. Of course, not all countries subscribe to the Berne Convention. In such cases, a body of work must first be published in order to be protected by copyright if the author or artist is not a citizen or resident of a Union country (Hoffman, 31).

What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?

The author of a creative work automatically holds copyright. Under the Berne Convention it is not necessary for the work to published for copyright to apply. In practice, this right is often assigned to a publisher, producer or record company under contract law and the rights holder will exploit the copyright. Employees do not hold copyright to work carried out under their contract of employment. Academic employees are usually exempt (Hofman, 2009, p. 35) although some institutions override the academic exception with a clause in the contract of employment.

The practice of ghostwriting suggests they can. But they cannot transfer the right to be the author. The actual author would hold copyright and moral rights to the work. “Inheritance is the only way moral rights and the droit de suite pass from the original creator of a work to another.” (Hofman, 2009, p. 49).

The author has a moral right, even after transfer of copyright, to object to any “distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” (Berne Convention Article 6bi(1) in Hofman 2009 p 43).

What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?

Works in the public domain are works to which copyright does not apply (Hofman, 2009, p. 57) Some works exist in the public domain because copyright has not been extended to include them, for example expressions of traditional culture. Other examples that exist in the public domain include facts, ideas, and news (Canadian Intellectual Property Office: A Guide to Copyrights, 5). Others enter the public domain on the expiry of the period, or term, of copyright (Hofman, 2009, p. 58)