This was originally going to be a single post, but it was large enough that I split it up. Today’s post is about intellectual property law in general; Monday’s post is specifically about copyright, with a focus on educational situations.
When I was at WRPI, and when I was writing some of my books, I learned a good amount about copyright and trademark law. I’ve run into some persistent confusion and uncertainty about that in my time in high school and higher ed, so I wanted to make a few remarks on the topic here.
To define some terms:
- Trademarks are words, designs, and logos that are part of a particular company’s or product’s identity. The raised TM or circled R are both trademark indicators (the latter is a “registered trademark”). Trademarks and patents are overseen by the US Patent and Trademark Office.You have to apply for a registered trademark, but you can get a regular trademark just by claiming it (marking it with TM) and defending it. Trademarks last as long as they are maintained and defended – that is, you use them, and you actively work to keep other people from using them. If some granny in her basement started making a soda and naming it Coca-Cola, you can bet that Coke would go after her legally. If they didn’t, anyone else could then start to name their soda Coca-Cola too. The trademark would be gone. Them’s the laws. Trademarks almost never come into education discussions, but I mention them here because people confuse the concepts.
- Patents are legal recognition and protection for a “new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.” You can also get Design Patents for “new, original, and ornamental design for an article of manufacture”, and Plant Patents for “any distinct and new variety of plant.” Sort of a blast from the past, that last one.You have to apply for a patent. Patents are expensive enough that the average person would think twice, but not so expensive that companies can’t snatch them up by the dozens. They last for a specific amount of time, which is renewable a certain number of times at increasing cost. There is no obligation to defend a patent; you don’t lose your right to sue if you wait for a year while someone else uses a method that you patented. This is a common method for “patent trolls” – patent something, wait until someone else is really entrenched in using it, and then sue them. Again, patents don’t come up much in education, but some of the concepts seep into discussions when people don’t know the difference.
- Copyright is, fairly literally, the right to make and display copies of something. It applies to creative and technical endeavors of all kinds, including writing, artwork, music, computer code, and more. Copyright is overseen by the US Copyright Office.Copyright is different. Copyright does not have to be defended, and does not have to be applied for.
Every work created in the USA (and most other nations) is protected by copyright automatically, the instant it is created. There is no registration process, you do not have to apply, you do not even have to state “all rights reserved” or use the circled C mark.
Furthermore, copyright never has to be defended. The original author/artist/programmer can allow others to use the work as they see fit, and can pursue lawsuits against some offenders but not others without weakening the copyright. When lawsuits are pursued, the general principle that is considered is whether the defendant is damaging the author’s ability to make money off his or her work.
Copyright also lasts a long time – an uncomfortably long time, for those of us who believe in the value of the public domain. The shortest amount of time that copyright lasts is the life of the author plus 70 years. Depending on how long the author lives, work created by a corporation can be protected even longer. Don’t talk to a public domain maven about Mickey Mouse unless you want to hear a diatribe.
When it comes to education, copyright is the most important and most commonly discussed item. Teachers using materials in their classrooms, textbook companies looking for pictures or diagrams, and students creating papers all fall under slightly different rules. It can get confusing.
On Monday I’ll try to untangle what can get used where, and why.