Intellectual Property

EDUCAUSE Policy Topic: Intellectual Property

Higher education institutions, as major producers and users of intellectual property, have an important stake in policies governing copyright, patents, trademarks, licensing, and access to information.

Topic Areas

Copyright is a legal form of protection that gives people the right to own and profit from their artistic, scientific and technological creations for a designated period of time. Balancing features of copyright is critical to the quality of the research, teaching, and learning missions of higher education institutions. As both large-scale users and producers of intellectual property, higher education institutions support the goal of balanced copyright laws and policies.

EDUCAUSE maintains an extensive set of web pages that point to a variety of policies, presentations, blogs, and podcasts directly relevant to this topic, and related subtopics including Fair Use, copyright infringement, DMCA, the TEACH Act:

Copyright Infringement
Copyrights help to ensure that authors of creative works can control how those works are used and prevent others from capitalizing on, or using or distributing, the works without permission. The unauthorized distribution of copyrighted material such as songs, videos, games, textbooks, or other types of creative content, including through peer-to-peer file sharing, may violate civil or criminal law.

EDUCAUSE believes that policies informing and educating the campus community about issues relating to copyright and the differences between appropriate and inappropriate use of copyrighted material is the best way to limit unauthorized distribution of copyrighted material. For more information, see: Copyright Infringement.

Digital Millennium Copyright Act (DMCA)
In 1998, the Digital Millennium Copyright Act (DMCA) updated copyright law by providing the legal framework for how copyright holders make claims of copyright infringement in the digital world, given that only an Internet Service Provider (ISP) (e.g., a cable company, telephone company, college, university, etc.) has the records necessary to match an Internet Protocol (IP) address and time stamp to an individual. The DMCA tries to balance the needs of copyright holders whose digital works can be rapidly, perfectly, and infinitely copied and the liability of an ISP for its users' infringing activity, all in the context of protecting intellectual property to promote innovation.

The DMCA tries to balance the needs of copyright holders whose digital works can be rapidly, perfectly copied and the liability of an ISP for its users' infringing activity. Campus network operators often act as an Internet Service Provider (ISP) and policies should enable campuses to avail themselves of the safe harbors that the DMCA allows.

For more information:

Fair Use
One of the exclusive rights accorded to the copyright owner is the right to reproduce or to authorize others to reproduce the work in copies. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use." Fair use permits limited use of copyrighted material without acquiring permission from the rights holders. The flexible doctrine of fair use can be especially helpful in this time of change, because its general terms can accommodate an indefinite number of new situations and enable important new uses where specific exemptions stop short.

Faculty and students enjoy some of the greatest benefits of U.S. copyright law's doctrine of fair use — which lets them use copyrighted material without permission or payment, under some circumstances. For more information, see: Fair Use.

Universities are a principal source of the fundamental research that expands the frontiers of knowledge, strengthening the nation's innovative capacity. The patent system plays a critical role in enabling these institutions to transfer discoveries arising from university research into the commercial sector for development into products and processes that create new markets and new jobs at home and strengthen the nation's economic competitiveness abroad.

EDUCAUSE Policy believes that policies should enable universities to more easily and more competitively transfer research innovations into the commercial sector. For more information, see: Patents.

As a channel for content distribution, Peer-to-peer (P2P) file sharing changes the conventional hierarchy of information. Removing the central authority over content distribution has resulted in copyright infringement on some P2P networks. Because file traders are frequently only identified by a network address, complaints of copyright infringement generally go through Internet Service Providers (ISPs) to identify individual users, and since colleges and universities often function as ISPs for campus users, higher education has found itself in the middle of this controversy (excerpted from EDUCAUSE's 7 Things You Should Know About P2P).

The entertainment industry continues to press for additional legislation and regulations that could affect campuses. This includes efforts to incorporate P2P prohibitions and penalties into everything from international treaties to spending bills and ad hoc legislation. Most of these efforts are directed at network providers generally, but some focus on higher education. EDUCAUSE Policy believes that network operators (including campuses) should not be implicated in violations committed by individuals. Campus networks should be treated as private networks.

EDUCAUSE maintains an extensive set of web pages that point to a variety of policies, presentations, and podcasts directly relevant to this topic (see P2P File Sharing). There are also EDUCAUSE resource pages on the Higher Education Opportunity Act (HEOA), HEOA Role Models, and Legal Sources of Online Content to guide members in compliance.

For more information:

The TEACH Act made copyright laws regarding distance learning closer to the laws provided for face-to-face classrooms though there are still important differences. The TEACH Act expands the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education, which is a key difference as more classes move online. For more information, see: TEACH Act.

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Current Topic: HathiTrust Copyright Case
Learn about orphan works, fair use, and the role of technology in higher ed. Visit the HathiTrust Resources page for more.

Current Topic: Georgia State Copyright Case
The Georgia State copyright case was a challenge by three academic publishers whose lawsuit claimed that Georgia State’s e-reserves policy went far beyond the bounds of fair use. The judge dug deep into the questions surrounding fair use and concluded that copyright was meant to promote scholarship. This is a positive outcome for the higher education enterprise.

For more information, see the Georgia State Resources page.