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What Are the Legal Challenges With Intellectual Property?
Thursday, January 28, 2016
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The legal challenges related to intellectual property is often a very slippery slope. Steve Cohen reviews so elementary views about the laws so you can protect your work and your organization. 

Let me begin this blog with two very important disclaimers. First, I am not an attorney, so the information I am presenting has been gathered from a number of sources that are far more qualified to address the topic of intellectual property (IP). Instead, my role is to bring to the surface many of the challenges and issues you may face as a senior leader in talent development.  I implore you to get real legal counsel for any particular issues you think may violate IP laws. 

Second, although I am writing this post under the “so-called auspices” of ATD (because they are posting it on their community blog), anything that is reported herein (now I do sound like a lawyer J), does not necessarily represent the views or perspectives of ATD. That said, I would be surprised if there is any major disagreement about the myriad IP-related issues facing those of us working in this field.   

Lastly, someone will likely challenge my use of sources. To avoid any potential IP issues, and to represent my research as accurately as possible, I am adding a reference list for readers to review on their own.  Have I violated any IP laws in taking this approach? Probably, but certainly not intentionally. You will have to judge for yourself after reading this post. But while the absence of intentionality is not a suitable defense (as we will discuss below), I hope to cover my bases enough so that I am not found guilty of the very thing that I am warning you to avoid. 

The legal challenges related to intellectual property is often a very slippery slope, indeed. 

What Makes IP Issues Complex? 

While there are definite guidelines to follow, the interpretation of them is relatively subjective. In point of fact, attorneys often disagree amongst themselves, and leave it up to the courts to settle any sort of resolution. 

Furthermore, there are many misconceptions. Here’s what I can tell you for certain:     

  • IP law is serious business. Any blatant infringement will result in serious consequences—largely financial or to the offender’s reputation.  

  • IP laws fall under the jurisdiction of federal law. Article I, Section 8 of the U.S. Constitution grants Congress the power to promote innovation by ensuring creators are granted intellectual property rights through both the U.S. Copyright Office and the U.S. Patent and Trademark Office. It behooves practitioners dependent on third-party L&D materials and content to acquaint themselves with basic guidelines and act conservatively when making decisions about the creation and use of IP. 

Cat Russo, of Russo Rights, helps manages intellectual property issues for ATD. She explains the issue in simple terms: “If you didn’t write something as your own original content and if it’s not your original idea but you are using that material in any kind of published work that someone else will be reading (for internal or external organizational use), it’s best to always request permission from the copyright holder. In addition, be sure to include an attribution ‘Used with permissions from the COPYRIGHT HOLDER NAME.’” 

Some Basics of Intellectual Property Law 

Let’s begin with some elementary facts about the laws—so we are all starting from the same place. (And yes, intellectual property law is, in fact, a large enough issue to have its own category and specialists who do nothing but litigate in this arena.) 

In general terms, it refers to the kind of property that results from the fruits of mental labor, and includes four primary areas: copyrights, trademarks, patents, and trade secrets. It also includes industrial design and geographical indications or appellations. Here’s a simple breakdown:  

  • Patents protect inventions of tangible things.
  • Copyrights protect various forms of written and artistic expression.
  • Trademarks protect a name or symbol identifying the source of goods or services.
  • Trade secrets protect secret processes, distribution methods, and other confidential information.
  • Industrial design constitutes the ornamental or aesthetic aspect of an article.
  • Geographical indications represent the specific geographical origin and possess qualities essentially attributable to that place of origin such as the name of the place of origin of goods.

While any of these could apply to the development and use of learning materials, my guess is that the copyright infringement is the issue confronted most often by talent development leaders. The issues, of course, are quite different if it relates to use of your own or your organization’s original materials versus those offered by an external supplier.

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The IP law cited most often in these situations is the “fair use” doctrine. The “fair use” rule, at least in the United States, permits limited use of copyrighted material without permission from the rights holders, based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. This begs the question: What exactly is and isn’t “fair use”? 

Although there are limitations, the following types of uses are usually deemed fair use: criticism and comment, news reporting, research and scholarship, nonprofit educational use, and parody. There are four basic factors to test the “fair use” doctrine. 

  • Purpose and character of the use.

    This refers to whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only supersede the objects of the original for reasons of personal profit.

  • Nature of the copyrighted work.

    This refers to preventing ownership of work that rightfully belongs in the public domain by separating facts and ideas from copyright, and rather that only their particular expression of fixation merits such protection.

  • Amount and substance.

    This refers to the assessment of the quantity (or percentage) of the original copyrighted work that has been imported into the new work. In this case, often a “de minimis” defense is offered on the basis that the amount of material copied is so small that a fair use analysis isn’t even conducted.

  • Effect upon one’s value. This refers to measuring the effect that the allegedly infringing use has had on the copyright owner’s ability to exploit the original work.

There are five basic rules to keep in mind when deciding whether or not a particular use of an author’s work is fair use: 

  • Copying something is different from creating something.

    That is, are you merely copying someone else’s work verbatim, or are using it to help create something new?

  • You can’t compete with the source you are copying.

    Without permission, you usually can’t use another person’s protected expression in any way that limits or potentially impairs the market for his or her work.

  • Giving the author credit doesn’t let you off the hook.

    Giving credit and fair use are completely separate concepts. You either have the right to use someone else’s materials or you don’t. The fact that you attribute the materials doesn’t change this.

  • The more you take the less “fair use” it is likely to be.

    This seems obvious, but what exactly does “more” mean and how is it measured? As a general rule, never quote more than a few successive paragraphs from a book or article, take more than one chart or diagram, or include an illustration or other artwork in a book or newsletter without the author’s permission. Contrary to what many believe, however, there is NO absolute word limit on fair use. For example, copying 200 words from a work of 300 words would not be fair use, but copying 2,000 words from a work of 50,000 words might be.

  • The quality of the material used is as important as the quantity.  The more important the material is to the original work, the less likely your use of it will be considered fair. 

The practicality of the fair use doctrine is that a number of conventional uses of copyrighted works are not necessarily considered infringements. For instance, quoting from a copyrighted work in order to criticize or comment on it or teach students about it is considered fair use. An instructor who prints a few copies of an article to illustrate an approach or methodology will probably have no problem against the four factors—other than possibly amount and substance. All cases are not that clear, though. In most situations, all four factors are considered together in a balanced way to decide on whether the standards of fair use were violated. 

Consider a program that quotes another source as an example of a point. This will probably fall under fair use, even though the program may be sold to others. However, a nonprofit educational website that reproduces whole articles from magazines will probably be found to infringe if the magazine publisher can demonstrate that the website affects the market for the magazine, even though the website is non-commercial. 

Here’s the really tricky part: Just when you think this is all making sense and there are relatively easy guidelines to follow, keep in mind that countries other than the United States often have drastically different fair use criteria. In fact, in some countries, there is little or no fair use defense available. Even within Europe, rules vary greatly across countries. 

Bottom line: When in doubt, always ask for permission. What’s more, even when not in doubt, ask for permission. It is the safest approach and typically results in getting that permission.

Further Reading

About the Author

Dr. Cohen is a 40+ year veteran of the talent management industry having founded and/or led eight different business entities in the field. He currently is in private practice focused on strategic and business planning including senior leadership development. He also has served on 19 different advisory Boards for firms in the training and education sector helping them effectively navigate their growth strategies. He can be reached at: steve@strategicleadershipcollaborative or 952-942-7291 and his website is: www.strategicleadershipcollaborative.com.

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