COPYRIGHT AND IT: A PRIMER FOR INFORMATION PROFESSIONALS
Philip Doty

Intellectual property (IP) protection in the U.S. includes three major areas, all protected at the Federal level: copyright, patents, and trademarks. Related concerns, e.g., unfair competition, are addressed by the states.

Intellectual property in the United States has its genesis in the U.S. Constitution. Article I of the Constitution addresses the character and powers of the legislative branch (remember that the authors of the Constitution were themselves legislators), while Section 8 identifies some of the large-scale powers of the Congress. Specifically, Article I, Section 8, clause 8 states that the Congress shall have the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

There are a number of elements of this deceptively simple statement that deserve mention in the context of our class this semester:

• The aim of granting of intellectual property rights is clearly the overarching social goal of the "Progress of Science," what we would call systematic study of all kinds, and "useful Arts," what we might call practical crafts, through the process of producing and distributing knowledge. Using more contemporary terms, the granting of intellectual property protection is to ensure the production and dissemination of information for society's general use, including the creation of subsequent works.
  
  
• Thus, the financial incentives, the exclusive rights of the rightsholders, are clearly secondary. Two hundred years of American jurisprudence plainly supports this hierarchy of goals.
  
  
• Intellectual property always involves some limitations on the amount of time the rightsholder, who is often the buyer of rights sold by the creator(s), can limit others' use of the creation.
  
  
• Intellectual property springs from a number of Enlightenment assumptions accepted by the framers, i.e., about learning, progress, governmental action, and the economic and political status of the autonomous individual. These concepts were also joined with Romantic notions about the author, the unitary work, and creativity.
  
  
• James Madison, author of the copyright clause, plainly made the assumption that private economic interest and public interest in knowledge and inventions/writings coincide.
  
  
• Copyright itself is a product of the printing press.

These characteristics, while clear to some, are also contentious along some of their dimensions. The U.S. Office of Technology Assessment (1986) provides an invaluable perspective on intellectual property and its evolutionary character. It is the single most valuable resource I can refer you to for understanding this difficult topic.

There are many valuable sources online about copyright and related topics. Among the most useful are pages generated by Georgia Harper, one of our colleagues at the UT System General Counsel's Office. Georgia is an internationally known expert in copyright, especially its application to educational and other non-profit institutions, and she is also a strong advocate for fair use. Please see her Crash Course in Copyright (Harper, 2000). Also available is an online version of Ms. Harper's Crash Course in Copyright.

There are fifty (50) titles or topics in the United States Code, where many Federal public laws are codified, i.e., integrated with or said to supercede existing law. Title 17 of the USC addresses copyright, Title 35 patents, and Title 15 (on Commerce and Trade) trademarks. It is common to see conventions such as 15 USC 103, indicating that the reference is to Title 15 of the United States Code, section103, often shown as §103.

The rights of copyright holders

Copyright protection applies as soon as a work is "fixed in tangible medium of expression." That medium can be handwriting, a saved file on a computer's hard drive, a recording on an audio- or videocassette, and so on. The work must be sufficiently creative, itself a very contentious debate; see, e.g., the Supreme Court decision Feist v. Rural Telephone. When a work is copyrighted, all that is protected is the particular mode of expression, not concepts or ideas. For example, Shakespeare might have copyrighted Romeo and Juliet, but he could not have copyrighted the concept of two lovers caught between two warring families. Such a theme, of course, had already been used for millennia. This separation of ideas and expressions is another area that appears much simpler at first glance than it is in application to particular cases.

There are five exclusive rights reserved for copyright holders, who, as indicated above, are not always creators or authors themselves. These rights can be construed as both positive (the ability to do something) as well as negative (the ability to keep others from doing the same thing). These five exclusive rights in copyright are the rights:

1. To reproduce the work and to exclude others from reproducing it
   
   
2. To derive new works and to exclude others from so deriving, e.g., this right would include writing a novel then developing a screenplay from it
   
   
3. To distribute copies of the work and to exclude others from copying it
   
   
4. To perform the work publicly, such as a dance, and to exclude others from performing it publicly
   
   
5. To display the work publicly, such as a painting, and to exclude others from so displaying it.

Since Fall 1998, the duration of copyright of newly created works is the life of the creator(s) + 70 years, an increase of 20 years. The length of time for protecting copyright is one of the most fractious elements in IP.

Fair use, a much discussed but little understood concept, is outlined in 17 USC 107. Fair use is "a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent, notwithstanding the monopoly granted to the owner" (Black's, 1990, p. 598). Fair use is opposed to misappropriation or infringement, which is unauthorized use of copyrighted material and often takes place without the knowledge or consent of the rightsholder. Unauthorized use does not have the permission of the rightsholder and it, too, often takes place without the knowledge of the rightsholder.

Generally speaking, fair use includes (§107) "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." The boundaries of fair use are deliberately difficult to ascertain. Before 1976, fair use was a matter of common law, i.e., in the judicial tradition of precedent informed by social mores and norms. Now fair use is a matter of black letter law.

Identifying if a taking is fair use or misappropriation requires balancing a number of variables:

1. The character and purpose of the use, including its commercial character - this variable has been among the most misunderstood, especially in our field. While each case is always decided on the facts at hand, commercial use is not always misappropriation, and non-commercial use is not always fair.
   
   
2. The nature of the copyrighted work
   
   
3. The proportion of the work that was taken
   
   
4. The economic impact of the taking on the market for the work.

In addition to these time-tested criteria, courts have also added two others (Miller & Davis, 1990, pp. 349-350):