Intellectual Property: Copyright, Trademark, Patents, and Fair Use

From the onset, Congress sought to maintain a balance between the creators’ and the users’ rights.  One way this was accomplished, which would be of particular relevance to the academic community, was to apply the Fair Use Exemption (Fair Use was introduced in the case of Gyles v Wilcox, 1740, UK.  Here, the courts created a doctrine of “Fairness Abridgement” which eventually evolved into the modern concept of “fair use.”)

Why has the term length tipped the balance so far in the creators’ direction?  The ability to infinitely reproduce copyrighted material through digital means has caused loss of revenue for the rights holders which in turn has created an intimidating litigious landscape.  The content owners’ successful lobbying for increased protection has been their means of holding the line.  However, the only way for a true balance to exist is for both sides to be vigilant in exercising their rights. Fair use is an important tool in determining what copyrighted information can be used without permission.  Unfortunately, because it requires judgment, many people pay copyright fees rather than apply the exemption. 

Ultimately, that strategy will work against us--the content consumers: Fair Use is like a muscle that needs to be worked, and if we don’t use it our rights may disappear.  The Copyright Committee is available to help you navigate the factors in making a decision to exercise the Fair Use Exemption.  This effort will benefit you, your students and fellow academicians.   

Fortunately, there is a growing movement which is making educators less dependent on copyrighted works.  The movement has many names: creative commons, open access.  Using O.A. journals for research and publication will help them to flourish and to provide scholarship that is not restricted by copyright.