Patents, trademarks, and copyrights are all ways of protecting original creations. When we create an original machine or process, we patent it, which means we own the rights to produce the invention: we can sell (or rent) those rights to others, and we can receive compensation for such use. When we create an original work of words or art, the same premises apply, only it's called "copyright" instead of "patent." But we still own the rights to reproduce our work, we can sell (or rent) those rights to others, and we have the right to receive compensation or recognition for such use.
Patents require formal registration; copyrights do not. An author owns his or her words the minute they are "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" (USPTO qtd. in Walker).
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. (17 USC, Sec. 107)
Whether or not a given use is protected by this definition is based upon the following considerations:
(17 USC, Sec. 107)
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Usually, this entails using no more than 10% of a work (a poem, paper, or other document) and giving proper credit to the author or artist. There are various methods to give such credit, depending on what sources you use and what form your use takes. For example, in academic papers, you will usually use the MLA, APA, or ACW styles for citing the source of your words and ideas. Using someone else's form of expression without permission, however, is a serious offense. This includes not only failing to cite the source of any direct quotations you may use in your paper, but also failing to give credit for ideas and paraphrasing. In school, it's called plagiarism and may be severely punished. However, even beyond penalties imposed by teachers and university regulations for plagiarism, there can be legal penalties, including fines, for use of copyrighted materials without permission, even when proper academic credit is given.
Even though governments around the world (including our own) have yet to decide once and for all what the laws will be regarding copyrights, fair use, and electronic sources, some guidelines have developed, based on current laws, that are important for you to understand.
We deserve credit for our ideas and inventions. Even without laws and teachers' red pens, it would not be ethical to take credit for someone else's ideas. Citing sources serves several purposes, beyond avoiding academic penalties and/or lawsuits:
Primary sources are those sources where the idea or text you are citing (or quoting) originated. Secondary sources are those which use the words or ideas of others. For example, an eye witness to an event testifying in a trial is a primary source. The newspaper account of what the eyewitness said is a secondary source. When writing about literature, the book or story you are writing about is your primary source (for example, Shirley Jackson's "The Lottery"); works about the story (i.e., Jonathan Burns' "The Hidden Truth: An Analysis of Shirley Jackson's 'The Lottery'") are secondary sources.
In a court room, obviously, eyewitness accounts are preferred to "hearsay." The same holds true when you are conducting research and writing research papers: how can you be sure the secondary source has accurately quoted the original? how can you be sure he or she has accurately interpreted the original? The answer is simple: Check the original.
Of course, this is not always possible. Sometimes the original source may not be available or may be too difficult to access. This is especially true on the Internet, where synchronous discussions, forwarded files, and disappearing files sometimes make it necessary to reference secondary sources. Your citations should always make this clear (see, for example, my reference above to a quote from the Web site of the United States Patent and Trademarks Office (USPTO) which appears in another paper published online called "CyperProperty" by Janice R. Walker).
When you make documents and graphics available on the World Wide Web, you are publishing them. In the traditional classroom, students produce papers for an audience of one--the teacher. This, of course, sometimes makes for some very badly written papers. But students are usually free to include graphics, pictures, quotations, and paraphrases from other sources without permission or payment of royalties, provide, of course, the sources are properly cited.
The WWW has changed this, however; when you publish your work on the World Wide Web, it is immediately available to anyone in the world who has access. Since the basis of copyright law in this country is an economic one--intellectual property is considered to have economic value--publication of someone else's work, even with proper credit, can affect the economic value of that work. Why would someone pay to buy a book if they can read it on the Internet for free?
Copyrights don't last forever. When copyrights expire, works go into what is known as the "public domain." Many works of literature are now available for free on the World Wide Web (See The Complete Works of Shakespeare and The Online Books Page, for example). And some newspapers and journals choose to make online versions of their publications available for free (The Tampa Tribune, for example); others, however, require a subscription or payment to access (i.e., The Chronicle of Higher Education). It is important for us to know the difference. Works in the public domain may be used without permission or payment of royalties (although it is still necessary--and ethical--to accurately cite one's sources); copyrighted materials, on the other hand, may not be republished without permission.
For print, generally the rule of thumb has been that use of ten percent or less of a work constitutes fair use. For online sources, we should continue to abide by this same guideline. We should also give as much information as possible to allow the read er to access the original source. For print papers that will be used only in the classroom, you may not need to actually obtain permissions; however, you should be aware of the steps necessary to do so and should try to locate the information necessary. For work to be distributed outside the classroom, however (for instance, to be published on the World Wide Web), it is imperative you at least make an attempt to acquire permission.
Some sites offer graphic images to users at no charge and may specifically request that users download them. Requests such as these should be honored. However, graphics should not be downloaded without permission. Users may instead point to images and other types of files rather than downloading them. Of course, courtesy may require that users request permission even to link to an image or file, since this may entail additional traffic on the file server where the image is stored. Additionally, pointing to images and files may cause problems as files may move or change without notice or routes between sites may become jammed. However, without specific permission to download files and publish them on the user's file server, doing so constitutes a clear violation of copyright law.
In addition to citing the source of text, any graphics, audio, or video files included in student work should include proper citation as well. The elements of citation for electronic sources should include the name of the person responsible (i.e., the author, creator, or maintainer of the site), the title of the individual work and the title of any larger body of work of which it may be a part, the date of publication or creation, the protocol and address along with any directories or commands necessary to access the work, and the date of access. (For more information on citing electronic sources, see the "Walker/ACW Style Sheet"). It may often take a bit of detective work to locate important elements of citation for Web documents, but it is important to try and find as much information as possible. Where some of the information is missing, the student should include as much information as possible.
If it is unclear whether or not a given use is permitted, students should ask the owner or author of the site, if possible, explaining the nature of the intended use and noting the portion or portions of the work to be included. If unable to locate information as to whom to contact, then include as much information as possible in your citation along with, perhaps, a note explaining that the work is being used without permission of the owner. If asked by a copyright owner to remove material, be prepared to do so promptly.
University of South Florida