I.P.

Tip of the Week - #3

Here's Your I.P. Tip of the Week, brought to you by your friendly Intellectual
Property campus coordinator.

The third Tip of the Week related to Intellectual Property (I.P.) deals with the
concept of unprotected works as applied to copyright law.

A faculty member is teaching a class about the works of Henry Wadsworth

Longfellow. Students do not have to purchase a textbook for this class since
they download several poems from the Internet and the instructor also
distributes some photocopies of other works by Longfellow. Is this most
likely a violation of copyright law?

Answer: No, it is most likely not a violation of copyright law. Longfellow

died in 1882. Therefore, all original works penned by Longfellow are in the
public domain. In fact, all works created before 1923 are in the public
domain. After 1923 it gets a bit more complicated.

NOTE: the biggest area of concern is probably the statement that “the
instructor also distributes some photocopies….” If the instructor is selling
the photocopies to the students then there is likely some sort of violation. If
the distribution of the photocopies does not require student payments that
benefit the faculty member (or the institution), then there is likely no
violation since the works are in the public domain. The best procedure is
probably to have the bookstore arrange for the photocopies to be made and
then charge the students a fee that approximates the cost of photocopying.

Another NOTE: with works in the public domain, you need to be careful that
you are dealing with the original work, not some derivative work that might
still be under a valid copyright claim. For example, if one of Longfellow’s
poems had been turned into a play the mid-1990’s, then that play is most
likely copyright protected even though the original poem is in the public
domain.

Here’s an article with more information about how to determine whether

something has passed into the public domain:
http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/p
ublicdomain/SearchC-R.html

Barry Dahl I.P. Tips of the Week April, 2007

Or, here is a short table which might be useful:
http://www.unc.edu/~unclng/public-d.htm

What is the Public Domain?

Copyright protection is often called a limited monopoly because it does not

last forever. When copyrights expire, the works they protect fall into the
public domain. The public domain (PD), therefore, refers to works that are
no longer protected by copyright. With only certain exceptions, works in the
public domain may be freely copied or used in the creation of derivative
works without permission or authorization of the former copyright owners.

There is a fairly long list of other works that are NOT protected by copyright
law. How many can you name?

Besides PD works, the following categories of works are also NOT

protected by copyright:
• U.S. Government works,
• state judicial opinions,
• legislative enactments, and other official documents,
• unoriginal reprints of public domain works,
• logical, comprehensive compilations (for example, phone books)
• extemporaneous speeches,
• unadorned ideas,
• short phrases,
• freeware (not shareware),
• titles, and
• blank forms.

Question: Hillary Rodham Clinton wrote a book titled “Living History.”

Since she is a United States Senator, is this book in the public domain?

Answer: No, she did not write the book in conjunction with her official
duties as a senator. Legislation that she might author or speeches delivered
to the Senate would not be protected works, but the book as a private author
is protected.

Barry Dahl I.P. Tips of the Week April, 2007

The Proper Use of Public Domain Works

Whenever you rely on the PD status of a work, it is important to make sure

that the particular version you want to use is actually in the public domain.
Later versions or adaptations (e.g., translations, revisions, illustrated
editions) of PD works may be protected by a separate copyright. Copyright
in that later version, relates to the fresh layer of creative material added by
the second author. Therefore, it is prudent to use only the original PD
version, not any later copyrighted versions without permission or
authorization. Because of state and federal unfair competition laws,
appropriate disclaimers may also be necessary. Although a work may be in
the public domain for copyright purposes, other forms of protection may be
present. For example, book titles and characters can serve as valid
trademarks. Likewise, identifiable people may have the right to control the
manner in which their name or likeness is used. Similarly, works, such as
databases, may be protected under trade secret or contract law.

Question: For an astronomy class, an instructor downloads photographs of

the space shuttle from the NASA website. The photos are submitted to the
campus copy center to be enlarged to poster size for display in the
classroom. The copy center manager has concerns about whether copyright
is being violated by making these enlargements. Is it?

Answer: No, official photos from the U.S. Government are not subject to
copyright protection. Although the photos are copyright free, there may be
other conditions regarding their use that might apply. For example,
governmental agencies require that users respect the rights to privacy of any
individuals featured in the photos and obtain the consent of such pictured
individuals before using their images for commercial purposes. Still, this is
probably acceptable for use strictly within the classroom.

Tune in again next week for your next Tip-o-the-week!!

The Tip of the Week is adapted from the Minnesota State Colleges and
Universities "Understanding Intellectual Property: A Guide to Board Policy
3.26."

Barry Dahl I.P. Tips of the Week April, 2007