Use It or Lose It?
With organizations spending more than $60 billion on training in the U.S. in 2013/2014, according to Training magazine’s 2014 Training Industry Report, there clearly is no shortage of training materials and products out there. But trying to ensure that training materials are incorporated into training sessions legally and ethically may leave trainers with more questions than answers. The solution requires a close look at key laws and ethics governing appropriate use of copyrighted and public domain materials. In addition, experts advise consulting a licensed legal professional to determine how your individual circumstances apply to using copyrighted materials in the workplace.
HOW COPYRIGHT LAW WORKS
According to the U.S. Copyright Office, authors must create an original work to be eligible for copyright protection. “In order for to be covered under the Copyright Act, it has to be in a tangible medium of expression,” explains Cynthia M. Gayton, Esq., of Gayton Law. “The only thing that is protected is the expression of the idea, the idea itself is not governed by copyright.”
Copyright law extends to original expressions of work including, but not limited to, written works such as books, manuals, and articles; images and graphs; movies and videos; and software. Copyrighted material does not have to be expressed in a medium that is understandable exclusively to humans. Copyright protection extends to machines, especially computers. “Computer code or digital media can’t be held, but it can be stored in a physical way so that would be sufficient for it to be covered by the Copyright Act,” says Gayton. “That’s why things such as source code also are covered by the Copyright Act. The program itself potentially could be considered an expression and would qualify.”
Gayton explains that copyright infringement means “using a copyright-protected work without permission.” For original works created on or after January 1, 1978, copyright lasts for 70 years beyond the author’s death. For works with multiple authors, copyright exists 70 years after the last author’s death. Work for hire or by an employer lasts 95 years from the date of publication or 120 years from the date of creation, whichever expires first.
WHAT MATERIAL IS SUBJECT TO COPYRIGHT?
Materials created before January 1, 1978, have different copyright protections or none at all depending on when they were created and what steps copyright holders took to preserve their rights, Cornell Law School notes. Material created prior to 1923 is in the public domain. However, materials published between 1923 and 1963 may or may not be subject to copyright. Materials published with notice during this 40- year period, but with no copyright renewal, fall in the public domain. However, if the copyright was renewed, the copyright expires 95 years after the work’s publication date. For works created before January 1, 1978, copyright protection depends on how it was published, and certain works may be subject to different licensing requirements.
As the U.S. Copyright Office explains, if a work is copyrighted, then you need a license to legally use it. Just because there is no copyright notice on the material, especially after March 1, 1989, when there’s no requirement to still maintain copyright protection, the material likely may be copyrighted. To determine if a copyright exists, the U. S. Copyright Office recommends looking at the work in question to see if the notice exists and the location, date, publisher, and author are indicated. From there, a search can be performed by the individual through the U.S. Copyright Office or by the Office itself. While most works created from January 1, 1978, are available through a search, not all works may be found because all unpublished works prior to 1978 received automatic protection regardless of registration status with the U.S. Copyright Office.
Including all work information reduces search cost and length. Supplying a work’s title, creator(s) names (pseudonyms, too), production and publisher contact information, publication or registration date, and what type of work it is (book, movie, music, etc.) is recommended.
After a copyright holder(s) is identified, applying for permission is the next step. Along with providing basic identifying information to the copyright holder, explain how the material will be used, who will use the material, and whether or not the material will be used for commercial purposes. This often can influence the copyright holder’s decision to license the work and how to license it.
If a work is registered with the U.S. Copyright Office, copyright holders enjoy greater visibility while protecting their work. Copyright holders can file lawsuits to obtain court orders to stop infringing parties from unauthorized use, including seizing it. Other civil penalties include the copyright holder’s ability to recoup attorney fees and ask the court for statutory fees up to $150,000, especially if infringement is purposeful.
Gayton describes plagiarism as making people believe that you wrote or created something as your own when you did not. Instead, she advises giving credit when in doubt, especially when you’re introducing a new concept. “Even if you think you have a unique perspective, if part of your perspective came from someone else, you’re always in a better situation if you provide attribution,” Gayton notes. “It isn’t just a matter of moving some words around. The question is: Are you actually coming up with an original expression?”
Adds Daniel Feiman, founder and managing director of Build It Backwards, “If it’s truly public domain, I still like to attribute the example/model to the original source.” Feiman explains that along with honoring ethical obligations, this builds respect and adds credibility to statements. An example is Feiman’s verbal referencing of a Mastermind concept in Chapter 10 of Napoleon Hill’s “Think and Grow Rich” book during a training session. Even though the book is public domain, Feiman says, “giving credit to Hill for the Mastermind concept is an ethical must.”