Owning And Using Scholarship: An IP Handbook For Teachers And Researchers

251 Pages·2014·2.243 MB·English

by  Kevin L. Smith

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.