I.P.

Tip of the Week - #4

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

The fourth Tip of the Week related to Intellectual Property (I.P.) deals with
the concept of how copyright is obtained.

Scenario One: Faculty member Johnson developed a large amount of course

content for an online course that she has been teaching. As a courtesy to
faculty member Jones, Johnson allowed Jones to take a look at the course to
get some ideas for effective online teaching methods. It is now two months
later and Johnson has heard through the grapevine that Jones is in fact using
electronic copies of Johnson’s course content to teach his own class in the
same subject at a different college.

Johnson contacts Jones to see if he is using her course content to teach his
class. Jones admits that he is using the course content but replies that there
is no violation of copyright because Johnson has not formally applied for
copyright protection with the U.S. government (or anyone else, for that
matter).

Jones says that she is not required to formally apply for copyright protection
for her original scholarly works. She continues to say that copyright
protection is automatically granted at the time that the intellectual property
is created.

Johnson says that even if such “automatic” copyright protection were

available to Johnson, she did not take advantage of the opportunity because
she did not put a written copyright notice anywhere on her materials (such as
© 2003 Norah Johnson).

One of these two people is completely correct and the other one is
completely wrong. Which one is correct?

Is Johnson correct, or is Jones correct?

Answer to Scenario One: Johnson is correct and Jones is absolutely making

up his own laws as he goes through life.
Under the current U.S. Copyright Act, copyright protection exists in original
works of authorship fixed in a tangible medium of expression.

The key points are as follows:

1) Originality Requirement: To be protected by copyright law, a work
must be "original," although the amount of originality needed is a very
small amount. The work cannot be a pure reproduction of a previous
work, nor can it consist of only a few words or a short phrase (those
typically need to be trademarked instead). Therefore, almost any work
that is created by an author will meet the originality requirement.
2) Works of Authorship: The Copyright Act uses the phrase "works of
authorship" to describe those things that are protected by copyright
law. This is a very broad phrase which was deliberately chosen to
avoid the need to rewrite the Act every time some new medium of
expression was discovered. Congress included a list of eight works of
authorship in the Act in an effort to clarify what was considered a
work of authorship, they are:
• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and other audiovisual works;
• sound recordings; and
• architectural works
Although this list is not meant to be all-inclusive, most original works
fall into one of these categories. Although not specifically stated,
computer programs and Web pages are registered as "literary works,"
while maps are registered as "pictorial, graphic, and sculptural
works."
3) Fixation: In order for an original work to be protected, it must be fixed
in a tangible medium of expression. If on-line material is fixed, for
example, in a print-out or saved on a floppy disk or hard drive, then it
is copyrighted. A song is considered fixed when it is written down on
paper or the moment the author records it onto a cassette tape or other
recording device. However, just having a song bouncing around in
your head does not result in a protected piece of intellectual property.
The above three requirements are the only requirements for copyright
protection. As a result, copyright protection exists the moment an original
work of authorship becomes fixed. No other actions are required for
copyright protection. There is no need to formally file an application for
copyright protection. Nor is there a requirement to place a written or visible
copyright notice on a work. These additional steps, often referred to as
"formalities," have not been required to secure copyright protection since the
automatic creation of copyright protection in the United States began in
1978.

Johnson is absolutely correct because her original authored literary works

are in a fixed medium. Jones is absolutely infringing on her copyright by
using the materials without her permission. 50 lashes from the I.P. police
(just checking to see if anyone is still reading).

VIN (Very Important Note): although all of the above are true statements
(I’m guessing on that), Johnson would not be able to sue Jones for monetary
damages since she did not formally file copyright protection with the U.S.
Government. She can receive relief from Jones’ use of her materials (he
would be ordered to cease and desist), but monetary damages are only
available when the work has been officially filed prior to the infringement
occurring.

Scenario Two: Don’t you think this is already long enough? Do we really
need another scenario?

Tune in again next week for the fifth 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" (although this one was primarily made up as well as stolen (with major
modifications) from some website).