10

Introduction

While research and scholarship are driven to be more open and accessible, there remains concerns for security, privacy, and intellectual property. Researchers must navigate these concerns while simultaneously sharing their work broadly for high impact. Intellectual property is important for researchers to understand as they develop inventions, write books, use other’s work, and so on. There are four types of legal instruments to protect intellectual property: trade secret, trademark, patent, and copyright.

Types of Legal Instruments

Intellectual property legal instrument	What is protected
Patent	Inventions, processes, machines, and ornamental designs
Trademark	Words, symbols, logos, designs, or slogans that identify goods or services
Trade Secret	Confidential formulas, methods, devices that has economic value and gives a business competitive advantage
Copyright	Books, photos, music, fine art, graphic images, videos, films, architecture, computer programs

This chapter focuses on copyright and licensing copyright. While patents are also very relevant to research, copyright is the most common type of intellectual property protection found in academic research, especially within scholarly publishing. This chapter looks at copyright in the United States. Copyright law varies in each country and it is important for researchers to be aware of both their country’s laws and their institution’s guidelines.

Copyright

This “Copyright” section is adapted from Southern Methodist University Libraries’ Copyright Course https://lor.instructure.com/resources/f6731c60b04f411da7600f296395fd93 Creative Commons Attribution 4.0 International License

Defining Copyright

Copyright protects works that are creative and in a fixed expression. Copyright begins the moment you fix your expression in a tangible medium. The material or work does not need to be published to have copyright protections. If the creation is in a fixed form—on paper, electronic document or file, canvas, or other medium—it is a copyrighted work.

• Literary works
• Musical works
• Pantomime and choreographic works
• Dramatic works
• Pictorial, graphic, sculpture works
• Architectural works
• Motion pictures and audiovisual works
• Sound recordings

Works protected by copyright are creative and artistic expressions. Copyright is one area of intellectual property law, it is different from patent law which covers inventions and manufacturing or trademark law which covers a word, name, symbol, or design, to identify and distinguish commercial goods.

Copyright law does not protect ideas, facts, and data. Ideas are not fixed expressions. And no one can claim ownership of facts and data as these are indisputable information points to which society must have free access and use. Facts and data can be used freely as part of a new creative work. Works in the public domain (works with expired copyright terms or have been intentionally put in the public domain) also are free to use and adapt into new creations.

Copyright limitations

The copyright statute allows for certain fair uses of copyrighted works. Artists may use a small portion of a visual work to alter and manipulate it in ways to create a new expression. Writers may analyze a textual work to re-contextualize it for different understandings of the events and motivations of characters. Songwriters may take an existing melody, but add new words to create a parody of the original. Access to copyrighted works provides the means for others to examine and ask questions and to re-evaluate creative works, which stimulates new ideas and ways of thinking and promotes further creativity and discovery.

Four Factors of Fair Use

To determine whether or not use of a copyrighted work is fair, you must weigh four factors that are outlined in Section 107 of U.S. Copyright law.

• Purpose and character of the use
• Nature of the copyrighted work
• Amount of the work used
• Effect of the use on the potential market

Examples of Fair Use Cases

Look through these summaries on popular court cases that involve fair use.

• Campbell v. Acuff-Rose Music Inc. (1994) – parody/satire of music
• Salinger v. Colting (2010) – parody/satire of textual work
• Authors Guild, Inc. v. Google Inc. (2015) – transformative use/format shifting of textual work

Author rights

In academic publishing, “author rights” is often used to refer to copyrights. Authors are the copyright holder of their work unless and until they transfer copyright to the publisher. Depending on the author agreement with the publisher, authors may retain all or some of their copyright.

Transferring rights

It is important to understand the significance of transferring and retaining copyright. Typically, the copyright holder has the express rights to reproduce, share and modify the copyrighted work. When an author transfers copyright to the publisher, they may not retain the right to use or share the work. This means that authors who transfer the copyright may no longer have the right to share the work, reuse portions, or post it to a personal or institutional website.

Authors should review author agreements carefully to understand their rights. Publishers that require authors to transfer copyright may still allow them to keep some rights to share the work. Authors can request they retain the right to share a copy of the work to their personal website or on their institutional repository so a copy of the work is freely available online. In Open Access journals or through other means of disseminating work, authors may retain copyright of their work but assign a license to their work to allow others to use it.

Licensing

Open licenses exist to help authors share their work for others to use, while still retaining the rights. Creative Commons licenses are free, easy to use licenses that copyright holders can apply to any type of copyrighted work. By using a Creative Commons license, the copyright holder is permitting others to reuse their work as long as they are properly credited. Using a Creative Commons license is as simple as choosing a license and labeling the work with the license title or icon. There are six Creative Commons licenses available that provide various permissions of reuse.

CC License Features

Types of CC Licenses	CC License Icons	Rights through this license
Attribution CC BY		This license lets others distribute, remix, adapt, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.
Attribution-ShareAlike CC BY-SA		This license lets others remix, adapt, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.
Attribution-NoDerivs CC BY-ND		This license lets others reuse the work for any purpose, including commercially; however, it cannot be shared with others in adapted form, and credit must be provided to you.
Attribution-NonCommercial CC BY-NC		This license lets others remix, adapt, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
Attribution-NonCommercial-ShareAlike CC BY-NC-SA		This license lets others remix, adapt, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.
Attribution-NonCommercial-NoDerivs CC BY-NC-ND		This license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.

Creative Commons licenses table; Content adapted from Creatives Commons Licenses, CC-BY 4.0

By using a Creative Commons license on a copyrighted work, others are able to reuse the material without explicit permission. This provides benefits to both the copyright holder and the user: the work is easier to reuse, allowing for the work to have potentially higher impact, and it is immediately clear to the user how they are able to reuse the work. The benefits of Creative Commons licenses are seen in action throughout this book. The section above on copyright uses content from an open course that uses a Creative Commons license for course materials. This book is also shared with a Creative Commons license, meaning that the authors allow others to reuse, remix, and redistribute this work.

Creative Commons licenses quick reference

Tips for Navigating Author Rights

• Consider the author rights for a journal before you submit a manuscript. Look through the website to find the “author rights” or “information for authors” page and find the section with language referring to transferring rights, copyright or licensing. Use this information to determine what rights would be transferred to the publisher.
• Consider any restrictions for grant funded research. Some funding agencies require that papers published from the funded research must be made publicly available. This means that the authors will need to publish in a fully Open Access or hybrid journal or request permission from the publisher to make a copy of the paper openly available.