Ip Tip Of The Week 04

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).