Intellectual Property, Fair Use, and Copyright in the Private Sector

Introduction 

Welcome to Intellectual Property, Fair Use, and Copyright. This guide will present key information and definitions to prepare educators and instructional designers to apply concepts in the design and development of Open Educational Resources. The information presented in this unit of instruction uses a Creative Commons Attribution license. Feel free to share and adapt the materials freely. 

NOTE: this material is based on © 2020, The EME5250 Group. Licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License and Open Washington’s “Module 9: Accessibility.” It was created under the CC BY 4.0 license that allows for reuse. Open Washington has not endorsed this work.  

Learning Objectives 

After reviewing this section, educators, instructional designers, and students should be able to:

• Define intellectual property, fair use, and copyright

• Distinguish between public domain, copyright, and Creative Commons licenses

• Identify different Creative Commons licenses

• Follow usage requirements based on specific licenses

Follow along with the audio presentation of the learning objectives.

Intellectual Property

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; symbols, names, and images used in commerce (WIPO, 2022). Raising awareness of intellectual property can help avoid violations of the law. There are several types of intellectual property which include Copyright, Patents, Trademarks, Industrial Designs, Geographical Indications, and Trade Secrets. 

As educators and instructional designers, the most relevant intellectual property you may wish to use while designing open educational resources is Copyright and Fair Use, which is what this unit of instruction and associated learning objectives has been based upon. Copyright, fair use, public domain, and creative commons have varying ways that they protect the intellectual property of individuals which will impact your work as an instructional designer, OER developer, educator, and eLearning creator. View below or click on the link to access an infographic on tips about intellectual property when adding images, videos, or other content that you did not create to your Open Educational Resources. 

Public Domain

There are no restrictions on using works that are in the public domain, which means educators and instructional designers can use them however they choose—short of claiming that you created them yourself. Unfortunately, it's not always easy to tell if the content is in the public domain. 

There may be some cases when you know for sure that a work is public domain (for instance, if you find a photo or text you are sure was published before 1924*), but for the most part, the best way to find public domain content is to search for it specifically. Public domain refers to materials for which:

• the copyright has expired;

• the copyright owner has intentionally and explicitly "dedicated" it to the public domain;

• the copyright owner did not follow copyright renewal rules; or

• copyright law does not protect (such as works created by U.S. Government employees during the course of their employment, and works that cannot be copyrighted (such as ideas, common knowledge, data points, etc.)

The above information was adapted from © 2020, The EME5250 Group, and is licensed under CC BY 4.0 / a derivative from the original work.

Fair Use 

What is Fair Use? 

Fair Use is considered an exception to copyright law that allows individuals to, in certain instances, use others’ work without crediting them. A great example of fair use is A Fair(y) Use Tale by Professor Eric Faden of Bucknell University. In this example, Professor Faden has cut clips from major motion pictures owned by entertainment giant The Walt Disney Company to create an entirely new video about copyright and fair use.

Why Does Fair Use Exist? 

Copyright law exists to protect creators from having their works unfairly stolen, but there is a line that can be crossed when protections go too far; fair use stands as an exception to copyright law that allows some deviance from the law without repercussions. According to the Law to Fact podcast episode “Copyright Law and the Fair Use Doctrine,” fair use was created as a way to allow society to grow and stand upon the shoulders of giants without getting caught up “drawing circles” around who owns what. Although many have never considered it, fair use is everywhere and expected. The simple act of quoting someone else is actually an example of fair use. (Law to Fact, 2019) 

When Do Fair Use Arguments Become Important? 

The courtroom is the only place where a fair-use determination can be made. Instructional designers and others seeking to use copyrighted work in a fair-use context must be ready to justify a fair use claim if the original creator of the work claims copyright infringement.

What Factors are Considered in Fair Use Cases? 

According to the Stanford Law’s website on fair use, the following factors can be considered in a fair use case:

• Whether the work is transformative – meaning, is it utilizing the work in a new way, for a new purpose? 

• The nature of the copyrighted work 

• The amount and substantiality of the portion taken 

• The effect of the use on the potential market

However, this list of items should not be treated as a checklist, as every fair use case is considered holistically. This article from the Center for Media and Social Impact explains: “Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is ‘fair’ according to a ‘rule of reason.’ This means taking all the facts and circumstances into account to decide if an unlicensed use of copyrighted material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.” 

One thing to note: simply giving attribution to the original creator is not enough to excuse someone from copyright infringement.

Sample Fair Use Justification 

To put what we’ve learned about fair use into practice, let’s consider how we would create a sample justification of fair use using A Fair(y) Use Tale by Professor Faden:

• Is the work transformative – the Disney movie clips are being used in a way that transforms the original work into something different.

• Amount and substantiality taken – Although clips have been taken from many movies, it is likely that less than a minute’s worth of clips have been taken from each movie, and most of the clips do not have a substantial bearing on the purpose of the original work.

• The effect of the use on the potential market – the video is hosted on Stanford Law’s website and is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License. The author clearly has no intention or expectation to benefit financially from his creation.

Although fair use cases are considered holistically by the court, it appears that if Disney chose to pursue a copyright infringement claim on A Fair(y) Use Tale, Professor Faden would have a strong argument in favor of fair use.

Resources 

Fair Use Case Study VoiceThread Activity 

In this VoiceThread, use what you've learned about fair use so far to review some case studies and their court determinations. Below the VoiceThread, you will find an editable version of the presentation as well as a transcript. 

Copyright 

As mentioned, Copyright is a form of intellectual property. The U.S. Copyright Office defines copyright as a set of exclusive rights awarded to a copyright holder or owner for an original and creative work of authorship fixed in a tangible medium of expression. Copyright also includes exemptions that permit a user of the copyright-protected work the right to exercise an exclusive right without authorization or royalty payment under certain conditions.

Copyright includes literary and artistic works, such as

• Novels, poems, plays, and films

• Musical works

• Artistic works, such as drawings, paintings, photographs, and sculptures

• Architectural designs

 Watch the video below, which was created by Common Sense Education, to learn more about the basics of Copyright.

Creative Commons 

Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools. Their free, easy-to-use copyright licenses provide a simple, standardized way to give the public permission to share and use your creative work — under conditions of your choice. CC licenses let you easily change your copyright terms from the default of “all rights reserved” to “some rights reserved.” (Definition from Creativecommons.org)

Video Resources:

• Watch the below video below on Creative Commons for a better understanding of what it entails. Creative Commons Kiwi by plccanz, CC-BY

• In the video, Copyright, CC & Fair Use, you will gain a better understanding of traditional copyright as well as the public domain and fair use. Creative Commons licenses provide an alternative to both traditional copyright and the public domain. Consider how the philosophy of ‘open’ described previously differs from the philosophy behind copyright. Furthermore, consider whether issues related to fair use apply to open content.

To learn more about license designs, rationale, and structure of Creative Commons licenses, please read About the licenses by Creative Commons, provided in "Creative Commons Licenses" by Dr. Boyoung Chae is licensed under CC BY 4.0 / A derivative from the original work.