Four Types of Intellectual Property

Copyright	Patent
The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.  The American Heritage® Dictionary of the English Language: Fourth Edition.   2000.	A grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time  The American Heritage® Dictionary of the English Language: Fourth Edition.   2000.
Trademark	Trade Secret
A name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer.  The American Heritage® Dictionary of the English Language: Fourth Edition.   2000.	A secret formula, method, or device that gives one an advantage over competitors.  The American Heritage® Dictionary of the English Language: Fourth Edition.   2000.

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Fair Use

The major exception to the limits imposed by copyright is Fair Use.  Allowing limited use of copyrighted material is essential in a democratic society which thrives on fairness and intellectual freedom. Section 107 of the U.S. Copyright Law defines fair use in terms of the scope and purpose of that use:

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or audio recordings 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Use of copyrighted material is allowed if all of the following apply:

• Use of the material has a legitimate, not-for-profit purpose.
• The nature of the work is educational, scholarly, or for the public good.
• The amount of the copyrighted work used constitutes a small portion of the total work.
• The use of the copyrighted work does not adversely effect its value or potential for profit.

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Applying Fair Use Guidelines

Many colleges, universities and libraries have developed guidelines or checklists to to help students and faculty determine if the use of copyrighted material is protected under the fair use law.  Academic purpose alone does not constitute fair use; all four factors must be evaluated equally. (Harper/ Fair Use)  For example, a composer sued the producer of an educational documentary that played a very short segment of his composition in the video.  Although the videotape was a commercial product, the court ruled in favor of fair use, noting that sales of the video documentary would not have an adverse effect on the sales of the musical composition; they were in two completely different commercial markets.  The court further noted that using a brief portion of the song as background music did not constitute excessive use of the composition.  This ruling was a boon to producers of multimedia presentations that incorporate video or audio clips, and of particular benefit to web page designers.  Furthermore, this ruling demonstrated the types of challenges that the courts face in upholding the fair use statute.  It should be noted, however, in cases where there were clear licensing opportunities available, and the use of protected media infringed on the profit potential of the copyright holders, the court was willing to rule against fair use based on the single factor, profit potential. (Crews)

In our litigious society, it is reasonable to assume that members of the academic community, including librarians, are paying particular attention to the copyright laws when publishing or producing original material.  Documentation of  the steps taken to determine fair use demonstrates the intention to apply it reasonably and in good faith. (Crews, Buttler)  Many universities and colleges have published clear fair use guidelines in the form of checklists or worksheets.  There are many excellent examples of these guidelines available on the Internet.  Instructors, educators and researchers can easily document their compliance by using one of these publications.  The  Indiana University Fair Use checklist is referred to by many universities, and is an excellent example of the types of questions that need to be answered in order to determine if use of copyrighted material is permitted. (Buttler)

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Fair Use Checklists and Worksheets

Indiana University Fair Use Checklist

Smith College

University of Rochester Fair Use Analysis Worksheet

Copyright Web site

Northeastern State University

University of Minnesota Duluth

Software and Database License Checklist from University of Texas

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