Copyright & Intellectual Property

• Overview and Definitions
  Black’s Law Dictionary, a standard legal reference, defines intellectual property as a “category of intangible rights protecting commercially valuable products of the human intellect.” (Garner, Bryan, ed. Black’s Law Dictionary. 9th ed. West Publishing, St. Paul, 2009.). This succinct definition touches on a few key concepts:
  

  • Intellectual property, commonly abbreviated as “IP”, is a set of rights.  
  • These rights are exclusive and valuable; they can be bought, sold, or licensed
  • IP rights protect intellectual creations. 

  Major categories of IP include copyright for creative expression, trademark for brand names and other source indicators, and patents for inventions.
  
  Copyright law is the form of IP law that touches higher education most often. It is a complex and evolving body of law often accompanied by misconceptions and diverse viewpoints. Many people, with or without a thorough understanding of the law, have strong opinions about whether copyright protects too much or too little. So clarification is in order.
  
  Teaching and creative practices run up against copyright law because it protects so much for so long. The requirements for copyright protection are slight: a work must be original (in the sense of originating with the author), “fixed in any tangible medium of expression” (17 USC §102), and have what courts describe as “a modicum of creativity” (Feist Publications, Inc. v. Rural Telephone Service Co. 499 U.S. 341 (1991)). Even something as rough as notes from a meeting may meet this threshold of creativity.
  
  Although a work must be fixed to have copyright protection, the rights to the work are separate from the object embodying the work. For example, a poet may retain the rights to her works even after books of her poems have been printed and sold. The fixation requirement serves a practical purpose: it provides a record of what the copyright protects. For the poetry example, the copyright protects the writer’s combination of words.  
  
  Another frustration is that copyright lasts a very long time. A prudent approach is to assume all works created after 1923 are protected by copyright.   
  
  While copyright holders have a lot of control over their works, the law is not wholly one-sided. Copyright recognizes that people beyond rightsholders may need to use protected works. Fair use is legal doctrine allowing the use of protected material for purposes that are considered socially beneficial. Examples of favored uses include criticism, commentary, news reporting, teaching, scholarship, and research (17 USC §107). That said, it is crucial to note that a socially beneficial purpose for use is not enough by itself. Fair use is determined by weighing four factors, each of which must be analyzed individually. They are:   
  

  • Purpose of the use
  • Nature of the work
  • Amount and substantiality of the portion used
  • Effect on the market for the work

  Fair use is deliberately flexible, as each fair use question is a distinct situation. It can be frustrating that judges will not declare that our uses to be fair in advance. Instead, we are our own guides. We must make careful, good faith analyses of our uses based upon prior interpretations of the law.  
  
  In sum, copyright is an interesting and complex body of law with daily implications. It provides exclusive rights as incentives to create works. At the same time, it allows others to use protected works in limited ways. Knowing key principles of copyright law, we can think through our uses in a structured, analytic way. We may not always arrive at a clear answer, but we will understand issues at play.
• What’s at Stake
  Colleges are responsible for practicing and promoting principles of fairness. Teaching fair use is part of fulfilling our educational mission. But there’s far more at stake. The more students know about how to give and take credit for created content, the more authority they’ll have. When we acknowledge intellectual property concerns in our curriculum, it’s more of a fundamental criterion than a legal warning. Rather than a discrete lesson in ‘not getting busted for plagiarism,’ we have the opportunity to incorporate copyright discussions into all aspects of instruction. Here at Columbia, this issue is especially important and interesting for students pursuing careers in creative professions.
  
  There is also more at stake for today’s college students, who often compose in electronic media that easily affords remixing. It’s simply harder to discern which content is original and borrowed. (But it’s still our job to make that clear.) In our discourse and practice we must call attention to matters of ownership and responsible borrowing. These days students have the means to incorporate a meme or embed a video as well as citing an article in alphabetic text. The process of recognizing fair use and citing it properly is actually dynamic. We have the opportunity and the responsibility to show students how to critically engage these issues.
  
  Higher education has always had as much to do with ethics and the law as with knowledge. We are always in a position to encourage creativity. But we also find ourselves teaching some form of intelligent constraint as a necessary part of academic freedom. It’s in everyone’s interest for us to embed a consideration of copyright checks and balances. For instance, why not introduce students to an accessible tool like The Fair Use Checklist as a regular measure for student self-assessment?
  
  Instructors can blend critical thinking exercise with real-world applications. Stories of copyright/IP disputes–– from Shepard Fairey’s Obama poster, to the pop-cultural artwork of Jeff Koons, to Beyoncé––are in the news every day. By screening an accessible film like Copyright Criminals in class, we comfortably invite students into the academy’s important conversation about labor, economics, property, ethics and authority. Relatable creative examples of sampling and homage communicate what fairness means in the context of composition.
  
  Re-using, remixing, remaking, quoting, and copying existing texts are inescapable practices of our culture. Participating in that culture—actively, ethically, responsibly, and legally— requires a working understanding of copyright and intellectual property issues.
   
  It is important for faculty to recognize the agency they can offer students by embedding copyright in our curriculum. Increasing their confidence is a happy byproduct. What’s at stake is their credibility.
• Applications in the Classroom
  Plagiarism is wrong. Ask any student and they will usually accept this phrase without question. But although plagiarism may intersect with copyright law and ideas of fair use, a common misperception is that plagiarism and copyright infringement are the same and, that plagiarism is the most prevalent application of copyright infringement in the classroom. It may surprise you to learn that not all plagiarism is copyright infringement; legally, it’s a matter of scale and intent. Nonetheless, plagiarism’s ubiquity as an academic concern often overshadows the more complicated and nuanced applications of copyright and fair use in the lives of our students and faculty—both within and outside of the classroom.
   
  For instance, most students understand the punitive risk of copying someone else’s work and passing it off as their own. However, many of those same students might, without a second thought, lift images from the Internet or use a hit song to soundtrack their PowerPoint presentation. Yet someone still owns the rights to these co-opted and recontextualized works. Is this use fair and legal? When can someone “borrow” another work ethically and/or without consequence? It’s this murkier area of intellectual property, copyright and fair use that have broad applications to our students and their academic and creative lives.
   
  The instructor who wants to introduce the concepts of intellectual property and fair use in the classroom can do so, foremost, by modeling best practices in using content they do not own. For example, instructors might:
  

  • Link to external content, use works with Creative Commons licenses, and provide citations to works they draw from for their classroom materials.
  • Allot classroom time to explore issues of copyright and fair use specifically as it applies to students’ own field or academic discipline.
  • Assign students a project consisting only of media licensed by Columbia College or Creative Commons. Instructors might they may stipulate this requirement for all course assignments.
  • Invite students to think about how intellectual property laws and fair use guidelines reveal our social and cultural values, especially as they relate to the increasing tension between creative collaborative practices versus isolated, independent accomplishments.
  • Ask students to consider the impact of these debates on issues of diversity, equity, and inclusion. Do copyright laws discourage or encourage the remixing of texts and ideas across a diverse set of audiences?
  • Encourage students to explore how intellectual property and fair use issues affect the ability of traditionally under-represented communities to participate in larger public conversations.

  We have the opportunity to help students understand the role of intellectual property in a ‘big picture’ way. These discussions and activities help place students as members of their fields, engaging in the ongoing conversations of the humanities. By acknowledging the developments that came before them and respecting the work of their forebears and contemporaries, students can recognize their own place in the continuum of shared knowledge and take agency for their role and responsibilities as students, artists and entrepreneurs.

• Select Online Resources
  • “You Are Not a Switch: Recreativity and the Modern Dismissal of Genius"
    • This online article from Slate serves as an excellent introduction to a variety of contemporary conversations related to remixing and intellectual property in pop culture.
  • Copyright Criminals
    • This online documentary explores copyright and IP issues by looking at sampling and remixing practices in contemporary popular music. It is part of PBS’s Independent Lens series.
  • Owning and Using Scholarship - An IP Handbook for Teachers and Researchers
    
    • This online book presents a practical and comprehensive understanding of copyright, IP and fair use. The first two chapters are exceptionally accessible discussions of these issues. It is published by the Association of College and Research Libraries.
  • Bound by Law - Tales from the Public Domain
    
    • This online comic takes a more narrative approach to exploring the practices and complications of copyright, creative commons, and the public domain. It was produced by the Duke Center for the Study of the Public Domain.
  • Copyright Resources - LibGuides at Columbia College Chicago Library
    
    • This online resource offers a rich variety of tools, checklists, charts, and other practical materials for students and teachers working with copyright-protected works.