Copyright for Educators

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

A. Factual data on of local weather patterns?

No, you cannot copyright facts. Copyright protects creative expression. Facts are discovered, not created. Therefore, facts as such cannot be copyright, but a particular style of presenting them, etc may be copyrighted. For example, a basic 2 dimensional table of facts, a simple pie chart, or a basic bar graph would be an obvious arrangement of facts and not eligible for copyright (U.S. law). A more creative expression of facts, such as intricate information visualization or an article interpreting and analyzing the facts and how they were captured would be more creative and therefore eligible for copyright.

B. Original research by Professor Dube

Yes, provided Professor Dube wrote the research down or captured it using her own expression/words in way that is distinct from the journal article.

C.  NASA satellite images of clouds

NASA’s guidelines on copyrights mentions that photographs are not protected by copyright unless noted. NASA permits using it’s imagery, video and audio material for educational or informational purposes, including photo collections, textbooks, public exhibits and Internet Web pages. If a recognizable person appears in the photograph,use for commercial purposes may infringe a right of privacy or publicity and permission should be obtained from the recognizable person.

But, it could be argued that the images can be used, for the following reasons -

1. NASA is a federal government agency and under U.S. law documents created by the federal government and employees of the federal government as part of their regular job are in the public domain.
2. These are satellite images. If they are purely scientific images of clouds and there was no artistic expression added on top of the images (e.g. sketches on top of the images), they would not be eligible for copyright.

D.  Local weather patterns written by the local bishop in 1905.

1. If the bishop’s account is just a collection of facts and contains no original/creative work, Copyright will not subsist for it.
2. Else, If the bishop had died before 50 to 70 years (depending on the jurisdiction), the copyright on them would’ve expired and the account would be in public domain.

E. Published article in international journal

Yes, this is an original literary work fixed in written form.

F.  Prof Dube’s course pack

Yes, this is  a compilation, fixed in written form.

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

She should check her agreement with the journal publishers. Some publishers allow draft versions of the articles to be self-archived and made available to students or anyone else in that way. Otherwise she can describe the content of the article in other words in a new work. The copyright only applies to that fixed version of the work and not to the ideas contained in it.

In future, she should negotiate terms with her future publishers such that she can keep for herself the rights to use her published articles in her teaching and further research.

Questions:

1. What is copyright?

Copyright is a variety of rights given exclusively to the owner of certain creative works to reproduce that work, part of that work, to show that work or perform that work in public, create derivative works or market and sell it. These rights appy to any expressible form of an idea or information that is substantive and discrete and fixed in a medium.

These rights allow the owner to prohibit others from reproducing their work or communicating that work without permission. There is usualy a time limit to this copyright. Owners may sell their rights or license their copyright to others. In Australia, copyright is issued automatically as soon as the creative work is printed or recorded in a material form.

Domestic copyright legislation usually says who has copyright in official works such as legislation. In Commonwealth countries such as Australia, Britain and Canada, copyright in official works is often referred to as Crown copyright.

Where domestic law offers no protection, Protocol 2 of the UCC of 1952 protects officialworks of the United Nations, UN agencies and the Organization of American States.

2. What activities does copyright prohibit?

Standard copyright prohibits anyone other than the copyright holder to

• copy/reproduce the work;
• make derivative works of the work;
• sell or distribute copies of the work; or
• perform the work in public

without the consent of the copyright holder.

3. Does copyright cover ideas or only expressions?

Copyright only covers works or expressions of ideas. It does not cover ideas, unlike patents.

In the Indian context, works in which copyright subsists is

• Original literary, dramatic, musical and artistic works
• Cinematograph films
• Sound recordings [Subs. by Act 38 of 1994, s. 12, for "records"; But the Berne Convention has never given copyright protection to those who produced sound recordings.]

Fixing a work or fixation is to put a work in some material form. The Berne convention leaves the choice of whether or not fixation is essential for a work to qualify for copyright.  Most countries require that a work be fixed in some tangible form.

In South Africa the following works, are eligible for copyright—

1. literary works;
2. musical works;
3. artistic works;
4. cinematograph films;
5. sound recordings;
6. broadcasts;
7. programme-carrying signals;
8. published editions;
9. computer programs.

In Australia the following works are eligible for protection under copyright

1. Written material
2. Artistic works
3. Musical works
4. Dramatic works
5. Computer Programs
6. Compilations
7. Films
8. Sound recordings

4. What requirements must resource meet for copyright to apply?

In South Africa the following requirements must be met:

1. The work must be original
2. The work must be written down, recorded, represented in digital data or signals or otherwise reduced to a material form.
3. In the case of a broadcast, it has been broadcast and, in the case of a programme carrying signal, it has been transmitted by a satellite.
4. The work must not infringe the copyright in some other work

5. 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 or creator has certain economic rights over their works, that is the right to copy, publish, broadcast, digitize, and if applicable perform their works. The author or creator also gets certain moral rights to their works, that is the right of attribution, a right not to be falsely attributed, and a right of integrity.

Someone who owns the economic rights in their work (initially the author or creator) has the right to “sell” the economic rights in their works, a complex series of options may have occurred when Zanele signed the agreement with Unique International Journal of Development to have her article published in the journal. In the past, Journals quite often required a complete assignment (or selling of all economic rights) to their Journal, leaving the author with little economic rights. Today these options vary considerably. The case study implies that Zanele has probably assigned the copyright to the Journal, completely. While Zanele has limited options regarding the copying of the work, there is still the moral rights to the work. Zanele usually retains the moral rights to the work, this will enable Zanele to manage how others who get copyright over her work use her work. That is the Journal must attribute Zanele, and they cannot change the work in any way that may subject the work to derogatory treatment, that is, prejudicial to the authors honour or reputation.

In Australia, Zanele would also be able to access the statutory licence, that the University would have signed with the collecting society (Copyright Agency Limited), this enables Zanele to include an article from a journal in her readings, hence her own article. Although this does come at a cost to the University through a payment scheme.

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

The public domain is a grouping of intellectual works that are not owned or controlled by anyone but are rather public property and free for use by the public. A work enters the publiuc domain when the copyright period mandated by law, expires. This is typically either after life plus 50 years or 70 years [60 years in India], depending on the jurisdiction. A work also enters the public domain when someone chooses to relinquish their copyright and put the work in the public domain.