Intellectual Property and Technology Transfer
The U.S. Copyright statute provides protection for original works of authorship (known as "copyrightable works") that are fixed in any tangible medium of expression, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work. Copyright owners get the exclusive rights to reproduce, prepare derivative works, distribute, display and publicly perform their work. Please see the ODU Policy on Patents and Copyrights
Copyrightable works include:
- literary works
- musical works
- dramatic works
- pantomimes and choreographic works
- pictorial, graphic and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
Copyright is secured automatically when the work is created; and a work is created when it is fixed in a copy or phono-record for the first time.
A proper copyright notice places third parties on notice that the University owns the work and is serious about copyright protection. The notice may make potential infringers less likely to reproduce the University's materials. The notice also eliminates the copyright defendant's ability to mitigate his or her damages by claiming innocent infringement. Failure to include the proper copyright notice may jeopardize the University's ability to enforce its copyrights.
The copyright notice includes the © symbol, the year of creation and the name of the copyright owner. For example: © 2002 Old Dominion University
The notice is to be included in each copy of the work produced. It is prudent to affix the copyright notice to all copyrightable materials, especially those that are electronically available.
Fair Use Copying
Fair use is the excuse used by faculty, staff and students for making copies for scholarly research and teaching without the permission of the copyright owner, even if the copyright owner disapproves of the use.
Faculty, staff and students need to know when they must obtain permission and how to obtain permission to copy:
- There is no specific number of words, lines, or notes that may safely be taken without permission.
- Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Wholesale copying is discouraged. Fair use is a defense to a claim of copyright infringement. Fair use is a defense to copying another person's work for academic and research purposes.
Copy shops typically will not allow wholesale copying without the copyright owner's written permission because they are either ignorant of the fair use defense for academic and research purposes, or they would rather not risk exposing themselves to litigation and the financial costs associated with it in the event that the so-called academic, not-for-profit use is really a commercial, for-profit use.
However, creative works are entitled to a greater degree of protection than more mundane works such as fact compilations. Thus, the ability to successfully rely on the fair use defense depends on the underlying facts of each case. To determine whether your copying constituted a fair use, courts apply a four-part test considering the:
1. Purpose and character of the use:
- Whether the use was commercial in nature (most literal copying in a commercial context will not lend itself to a successful fair use defense)
- Whether the new work is transformative - i.e., to what degree the new work is transformed into something different from the original
2. Nature of the copyrighted work;
3. Amount and substantiality of the portion used in relation to the work as a whole; taking a small portion of the work can also strike against a fair use finding if the copied portion was the heart of the work
4. Effect of the use on the potential market for or value of the work (i.e., how the new work will affect the market for the original and whether the copying deprives the copyright owner of license fees to which the owner would otherwise have been entitled)
Before posting on a University website a written piece of work that was not originally in electronic form, you may need additional written consent if electronic rights are not specifically conveyed by the author.
Works Made for Hire
Authored works created by employees within the scope of their employment is considered work made for hire. Pursuant to 17 USC 101, a work made for hire is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned. Pursuant to 17 USC 201(b), in the case of a work made for hire by an employee, the employer for whom the work was prepared is considered the author and owns all of the rights comprised in the copyright. Therefore, the University owns the copyrights of all authored works prepared by a University employee within the scope of his or her employment. The University may disclaim an ownership interest in certain authored works.
When a faculty member or student enters into sponsored research agreements, the sponsoring agency may consider the research work products specially ordered or commissioned work made for hire. For specially ordered or commissioned work, an intellectual property ownership provision may be included in the sponsored research agreement that both defines the contractor's work as "work for hire" and requires assignment and conveyance of the copyright in the work from the University to the sponsoring agency.
There are nine types of specially ordered or commissioned works created by independent contractors, which parties can agree in writing to be work made for hire:
- Contribution to a collective work
- Part of a motion picture or other audiovisual work
- Supplementary work
- Instructional text
- Answer material for a test
Software applications and computer databases are not included in this list. Therefore, if the University agrees to transfer ownership in software or databases to the research sponsor, the University must agree in writing to assign all copyrights to the sponsoring agency. A copyright assignment may be included in the sponsored research agreement. The sponsored research agreement should set forth the work product requested, the price to be paid, and other terms and conditions of performance.
U.S. copyright law provides limited protection to databases. The more creative and original your selection, arrangement, and coordination of facts, the more likely the law will protect your database as a copyrightable compilation. Since digital databases may be valuable copyrightable assets, they should be registered with the Copyright Office.