OSU Extension

Connecting The Ohio State University to Ohioans Ohio State University Extension OSU Extension [http://extension.osu.edu]

Copyright and Fair Use Definitions

Copyright

In today's world, just about everything is copyrighted, whether it carries the copyright symbol © or not. Moreover, under today’s law, materials are protected by copyright as soon as they are completed. Copyright applies broadly to all creative pieces whether written on paper, sculpted in stone, found in cyberspace or created on videotape.  This means that as soon as a document comes out of your computer’s printer, off your drawing board, out of your digital camera, or is posted on your web site, it is copyrighted – even if you do not use the © symbol. If the work was produced as part of your job, then your employer owns it, unless special arrangements were made in advance. This is known as "work for hire." 

Everyone else's work is probably copyright protected as well. If you are setting out to "borrow" something from someone, anyone, you need to take the appropriate steps to obtain permission. Failure to do so could lead to a costly court case. Crediting the source is NOT a protection against copyright infringement. 

OSU Extension and OARDC materials are copyrighted – that gives us the exclusive right to copy, distribute, modify and display or authorize other people to do so. The 1978 copyright law did not exclude Extension and research stations from copyright protection even though some funds are from federal sources; the law treats these agencies as non-federal operations. 

Permission to use copyrighted materials

If you are employed by OSU Extension, OARDC, or the college and want to use information from one of our publications, you do not have to seek permission. However, acknowledge the source by quoting the author, attributing the material, or citing the origin of the information. 

If you wish to use information from research or extension in another state, you must obtain written permission. Even then, you need to acknowledge the source of the material. If you wish to use information from other sources, you must ask and receive permission. Keep a copy of the permission statement in your file. There are narrow exceptions covered by Fair Use and public domain exemptions. 

Questions and Answers on Copyright

1.  Does OSU staff have the same ownership rights as faculty?

a. Works created by staff or faculty as a part of their normal work assignment, with significant university support or for which Extension paid are considered and will be treated as being fully owned by OSU. These are "work for hire."

b. Ownership of work created as part of a sponsored program or from a specific assignment will reside with the university and follow University Research policies.

c. If work is created by the faculty or staff member and it is a work of artistry, academic instruction (example text book) or traditional scholarship, as long as the work was not produced as a part of a sponsored program or as a part of an extension assignment, ownership is with the faculty or staff member. Use of university resources in the creation of these works and arrangements should be approved by the chairperson, dean and other appropriate academic officer(s). 

2.  What does copyright mean? What is the process for a copyright?

a. Copyright requirements: (1) original (not copied plus a minimal degree of creativity); (2) work of authorship (see item 2 for examples); (3) fixed in a tangible medium of expression.

b. Copyright notice and registration are NOT required to obtain copyright, nor is publication. Copyright attaches automatically upon creation.

c. Almost everything is copyrighted, even if it is not labeled.

d. Damages can be up to $150,000 for each unauthorized use of copyrighted materials.

e. Copyright protects expression, not the underlying facts or ideas.
Plagiarism (or patent infringement) is copying someone else’s facts or ideas or words without crediting the source.  Crediting the source is NOT a defense against copyright infringement.  Note that only expression is protected. Facts, ideas, methods of operation, procedures, processes, concepts, principles, systems and discovery are not copyrightable.

3.  Are there sample statements to use for joint copyright? (Example a publication jointly developed by Purdue and OSU.)

a. This statement would be developed as part of the agreement between institutions.

b. A "boiler plate" may be developed that can be used, contact OSU Extension Associate Director, Operations and Office of Technology Licensing for assistance.

4.  Can faculty/staff sell a product/creation they produce without the organization’s agreement? University resources and work time were used in part.

a. No (Ohio Revised Code 3345.14)

b. If university resources and work time were used in part, then the work belongs to OSU.

Fair Use

Under the Fair-Use Statute (Sec. 107 of the Copyright Act of 1976), an author may make limited use of another’s work without asking permission or authorization.  In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder’s exclusive rights to reproduce and otherwise reuse the work.

Four Factors that Help Determine Fair Use

Four factors help determine and predict when content usage may be considered fair use.  One need not satisfy all four factors, but a portion.

1. What is the Purpose of the Use? 

If usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.  Educational use is more likely to be considered fair use, but not when the material is sold for profit. 

2.  What is the Nature of the Material? 

Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.

3.  What is the Amount Being Used?

The amount and substantiality of the portion used in relation to the copyright protected work as a whole.  There are no set page counts or percentages that define the boundaries of fair use.  Courts exercise common-sense judgment about whether what is being used is too much of, or so important to, the original overall work as to be beyond the scope of fair use.

4.  What is the Effect on the Marketplace of the Use?

This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

The effect of the use on the potential market for or value of the copyright protected work.  Could what I am doing replace the sale of the work?  Is it the heart of the work?

Fair use is not a straightforward concept, therefore the fair use analysis must be conducted on a case-by-case basis.

Most organizations prefer to follow the motto “when in doubt, obtain permission.” 

Some things to keep in mind when trying to decide about fair use.

Are you copying or creating something new?  The more transformative your work, the more likely it is fair use 

Don’t compete with the source you are copying from.  Copying parts of a book and using that in teaching materials can deprive the author of legitimate sales.

Giving credit and fair use are separate concepts.  You cannot use any material you want just by giving the author credit.  You must obtain permission to use unless it is fair use. 

The more you use, the less likely it is fair use.

Quality is often more important than quantity.  The more important the material is to the original work, the less likely it is fair use.

 

Patents

A patent is an exclusive property right granted by the Commissioner of Patents and Trademarks, U.S. Department of Commerce. Patents confer to the inventor the right to exclude others from making, using or selling an invention or idea anywhere in the United States or its territories and possessions. The time period for a patent is generally 17 years. Patents cannot be renewed. Design patents generally offer 14 years of protection.

Securing a Patent

The first step in securing a patent begins with the inventor, who writes the idea in detail. This should be done in the context of originality and superiority of your invention to other similar devices. Next, you must determine the "novelty" of the product or processes. Novelty is a critical step in patenting your invention. There are two phases used to determine novelty: 1) analyze the invention according to specific standards; and 2) determine if anyone else has a patent on yours or a similar invention.

In analyzing your product or process, you should answer the following questions:

  1. Is my product or process new, useful and an unobvious process, machine, composition of matter or idea; or is it a new, useful and an unobvious improvement?
  2. Is my product or process new, or an unobvious original and/or ornamental design for an article of manufacture, such as a new design for a product?
  3. Is my invention a new or distinct variety of plant other than tubes-propagated, which is asexually reproduced?
  4. Was my idea known or used by others in this country before I thought of it.
  5. Was my idea or invention patented or described in a printed publication in this or a foreign country before I thought of it.
  6. Was my idea or invention described in a printed publication more than one year prior to the date of the application for patent in the United States?
  7. Was my idea or invention in public use or for sale in this country more than one year prior to the date of patent?

 

Trademark

Marks are defined as "any word, name, including brand names, symbols, logos, or device used to distinguish products or services from the goods of others" and are protected by law. The purpose of a mark is to prevent others from selling the product or service on another business or person's established good will. The U.S. Patent and Trademark Office recognizes four types of marks: trademarks, service marks, certification marks, and collective marks.

A trademark is used by a manufacturer or merchant to identify their goods and distinguish them from those manufactured or sold by others. A service mark is associated with services rather than goods. It is similar in intent to the use of a trademark. A certification mark indicates that the marked goods or services meet standards or requirements established by the owner of the mark. For example, Good Housekeeping has a certification mark. A collective mark identifies members of a group such as an organization, union or association.

 

Intellectual Property

Intellectual property describes a wide variety of property created by musicians, authors, artists, and inventors. The law of intellectual property typically encompasses the areas of copyright, patent, and trademark law. It is designed to encourage the development of art, science, and information by granting certain property rights to all artists, which include inventors in both the arts and the sciences. These rights allow artists and inventors to protect themselves from infringement, or the unauthorized use and misuse of their creations. Additional categories of intellectual property are trade secrets and know-how.

Questions and Answers on Intellectual Property

What scholarly creations or creative pieces are included in the intellectual property definition?

a. Included would be products of university "research" including any discovery, invention, know-how, design, model, work of authorship (including computer software) and any strain, variety or culture of organism or modification, translation or extension of these items.

b. Examples include: audio and video recording, photographs, anything stored on disk, website, electronic media, written on paper, cast in bronze, sculpted in stone. Software prepared for instructional purposes with the primary expectation of being used with student learning, including adult or continuing education programs.

Reviewed March 2013