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Intellectual property.pdf

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Intellectual property.pdf

  1. 1. REPUBLIC ACT NO. 8293: AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. World Intellectual Property Organization http://www.wipo.int/about-ip/en/ (accessed 14 Mar 2011) Intellectual Property is divided into two categories: • Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source • Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs World Intellectual Property Organization http://www.wipo.int/about-ip/en/ (accessed 14 Mar 2011) Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement. United States Copyright Office http://www.copyright.gov/circs/circ01.pdf (accessed 2 November 2013) Before an article is published in a journal, or before a contribution to an academic textbook is published, author and publisher enter into a publishing agreement which often entails an assignment of copyright or exclusive dissemination rights. An assignment transfers the copyright from author to publisher outright, while a license merely transfers circumscribed or limited rights to the publisher. In general, publishers in the field of science, technology, and medicine (STM) prefer assignments over licenses. International Association of Scientific, Technical & Medical Publishers http://www.stm- assoc.org/2007_10_01_Copyright_Assignment_Benefits.pdf (accessed 2 November 2013)
  2. 2. Open access journals will either let authors retain copyright or ask authors to transfer copyright to the publisher. In either case, the copyright holder will consent to open access for the published work. When the publisher holds the copyright, it will consent to open access directly. When authors hold the copyright, they will ensure open access by signing a license to the publisher authorizing open access. Authors of preprints hold the copyright to them and may post them to open access repositories with no copyright problems whatever. EIFL Electronic Information for Libraries (EIFL) http://www.eifl.net/faq/open-access-compatible- copyright (accessed 2 November 2013) Educational fair use guidelines have been established to provide “greater certainty and protection” for teachers and... apply to material used in educational institutions and for educational purposes: • noncommercial instruction or curriculum-based teaching by educators to students at nonprofit educational institutions • planned noncommercial study or investigation directed toward making a contribution to a field of knowledge, or • presentation of research findings at noncommercial peer conferences, workshops, or seminars Stanford University Libraries: Copyright and Fair Use http://fairuse.stanford.edu/overview/academic-and-educational-permissions/non-coursepack/ (accessed 2 November 2013) • attribution – identifying the source of a work / giving credit • copyright – a form of legal protection given to the creators of "original works of authorship “ • copyright infringement - a violation of the exclusive rights of a copyright holder, such as copying, distributing, or performing the copyright owner's work without permission • derivative work – a new work that translates or transforms one or more original copyrighted works • fair use - permits a second user to copy part or all of a copyrighted work without permission from the copyright holder • intellectual property – creations of the mind • license – permission to use a creative work Basic facts authors need to know • Copyright protection is automatic once a work is fixed in a tangible medium • Joint authors each have full and equal copyrights • Copyright can be transferred only in writing • Not all rights have to be given away – author/copyright rights can be broken apart Author rights Copyright is a “bundle” of rights and these exclusive rights include: – reproduce the work in copies
  3. 3. – distribute copies of the work – publicly display or perform – make derivatives, adaptations, translations – authorize others to use any of these rights Author options • Transfer all rights to publisher (traditional) – Author no longer has control over work • Licensing (Creative Commons) – Enables the copyright holder, whether author or publisher, to license partial rights to other parties – Addenda (SPARC, Science Commons, CIC) – Added to copyright transfer agreements and refer the desired rights to the author. – Leads to negotiations between author and publisher Author needs: anticipate future uses of your work – Share work with colleagues – Distribute at conferences – Self-publish (personal website, CM, CV) – Link to the full-text from your website – Submit to an open access repository – Republish; adaptation; translation – Use in class – Use in course packs Publisher requirements: • Publishers want traditional contracts – Reproduction – Distribution – Derivatives – Editorial control – Digital archiving – Format changes If…then – basics of reuse By the author – If full rights retained, then limitless (within the law.) – If some rights retained, then within limits of negotiated rights. – If no rights retained, then fair use or permission. By others – If published open access, then freely accessible. – If published under a Creative Commons license, then within limits defined by the license. – If published traditionally, then fair use or permission.
  4. 4. Authors - Where to begin? • Know what rights you want to retain. • Identify a publisher that allows authors to retain most rights. • READ THE PUBLISHERS AGREEMENT! • Include an Addenda to the publisher agreement. • Opt to publish in an Open Access journal and use various licensing resources, such as Creative Commons. Examples: • Science Commons: Scholars Addendum Engine • SPARC Author Addendum • University of Michigan Authors Addendum • MIT Faculty Open Access Policy Copyright for Librarians • An online open curriculum on copyright law developed by Harvard’s Berkman Center for Internet and Society in 2012 • Provides librarians in developing and transition countries information concerning copyright law • Includes information on copyright theory, public domain, how copyright law is interpreted and shaped • Contains a glossary of copyright terms • Available multiple languages www.eifl.net/copyright-for-librarians • Is a downloadable PDF bit.ly/UpYrcQ FAIR USE SECTION 185. Fair Use of a Copyrighted Work. - 185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include: (a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (b) The nature of the copyrighted work; (c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  5. 5. (d) The effect of the use upon the potential market for or value of the copyrighted work. 185.2. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Journal Article for Classroom Use SCENARIO 1: A professor copies one article from a periodical for distribution to the class. FAIR USE? Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh agains t fair use. Posting Copyrighted Article to Web Page SCENARIO 2: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page. FAIR USE? No, if access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted, then it is more likely to be fair use. Course packs SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack. FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic coursepack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following: clearance services, university bookstores or copy shops, or Department administration. Textbooks SCENARIO 5: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class. FAIR USE? No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the
  6. 6. copyright owner. The professor should place a copy on reserve or require the students to purchase the book. SCENARIO 6: A professor decides to make three copies of a textbook and place them on reserve in the library for the class. FAIR USE? No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place a copy of the textbook, not the copies, on reserve. Public Domain Materials SCENARIO 7: A teacher copies a Shakespearian play from a copyrighted anthology. FAIR USE? Yes. The play is in the public domain and not subject to copyright protection. Unpublished Letters SCENARIO 8:A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives. FAIR USE? The answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution's office of legal affairs for advice. Journal Article for Personal Use SCENARIO 9: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later. FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference. Out-of-Print-Book SCENARIO 10: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files. FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source.
  7. 7. SCENERIO 11: Using the same facts as explained in SCENARIO 10 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web? FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book. Plagiarism vs. Copyright Infringement Copyright infringement includes the unauthorized or unlicensed copying of a work subject to copyright. (Tech Law Journal) Plagiarism is using someone else's work or ideas without giving proper credit. In other words, because you are not giving attribution to the owner of the original work or idea -- you are presenting the idea or thought as your own. • Plagiarism is a violation of academic norms but not illegal; copyright violation is illegal but quite common in academia. • Plagiarism is an offense against the author; copyright violation is an offense against the copyright holder. In traditional academic publishing, they are usually not the same person, because copyright transfer agreements (CTAs) are so common. • Plagiarism applies when ideas are copied; copyright violation occurs only when a specific fixed expression (e.g., sequence of words, use of an image) is copied. • Avoiding plagiarism is about properly apportioning intellectual credit; copyright is about maintaining revenue streams. Adapted from Sauropod Vertebra Picture of the Week by Mike Taylor, Matt Wedel, Darren Naish is licensed under a Creative Commons Attribution 3.0 Unported License. Examples of Plagiarism (from Jamie Dendy) • Quoting someone's words from the Internet, a printed article, or an interview, without acknowledging the author. • Copying part of the content of a work into one's own paper without citing the source. • Copying or buying a paper and handing it in as one's own. • Falsely creating a citation that doesn't exist. • Failing to credit and cite someone else's thoughts or ideas when paraphrasing. • Paraphrasing in a way that relies too heavily on another's language or syntax. Types of Plagiarism Stealing - This is exactly what it sounds like! If you take a sentence, or even a unique turn of phrase, and pass it off as your own, this is stealing. Patchworking - Using words and phrases from a source text (that may or may not be acknowledged) and patching them together into new sentences. Insufficient Paraphrasing - Taking an author's words and changing them slightly, without quoting the actual text is plagiarism. Say it entirely in your own words, otherwise put the author's text in quotes and reference the source.
  8. 8. Misquoting - When you quote another author in your own work, always be sure to quote exactly what was said. Direct quotes are when you use an author's exact words. Indirect quotes are when you report the spoken or written words of an author, but not his/her exact words. Both must be cited!! Duplicating Publications - You cannot reuse/recycle your own paper for use in another assignment without explicit permission from the instructor. If you cite your previous works, remember to cite yourself! This is self-plagiarism. Avoiding Plagiarism Guide Marston Science Library (Accessed 21 Aug 2009) www.uflib.ufl.edu/msl/07b/studentplagiarism.html Scenarios • I combined the findings of these 8 sources into one paragraph. I don’t have to cite them because I created the compilation. • I submitted the same paper to more than one class. It’s OK that I copied my own work without citing it because it’s still my idea. • I copied someone else’s work, but I didn’t use quotation marks because I changed a few words. • I removed some data points to make my results look better. • I didn’t collect enough data from my experiment, so I used a computer program to generate data points. • My advisor used my data without giving me credit. • I quoted something but changed one word to strengthen its support of my argument. Case Study ‘May is a second-year graduate student preparing the written portion of her qualifying exam. She incorporates whole sentences and paragraphs verbatim from several published papers. She does not use quotation marks, but the sources are suggested by statements like (see . . . for more details). Additionally, the faculty on the qualifying exam committee note inconsistencies in the writing styles of different paragraphs of the text and check the sources.’ • What are the signs of plagiarism in this case? • What about the authors’ works which are copied without credit? Is it fair? Is it ethical? Adapted from ‘On Being a Scientist’ p. 18 (accessed 21 August 2009) www.nap.edu/openbook.php?record_id=4917&page=18 Common Mistakes • Cut & paste from electronic/Internet sources without using quotes or properly citing the source • Download audio, visual, or arts without proper permission (Copyright issues) • Cite statistics/facts without the source, unless they are common knowledge Basic Guidelines to avoid plagiarism • If you use four lines, block quote indented 1” or 2.5 CM from each margin and cite source • Even if you don’t use words verbatim, you must cite if you use the author’s ideas • If you reference a scientific concept that is not commonly known, cite the source
  9. 9. • You do not need to cite if you are using universally understood concepts or common knowledge • When in doubt, CITE Adapted in part from ‘PLAGIARISM. What is it?’ (Accessed 08 June 2009) bahealthsci.phhp.ufl.edu/tools/PLAGIARISM.ppt Is it plagiarism or is it cultural? • ‘In some Asian cultures, students are taught to memorize and copy well-respected authors and leaders in their societies to show intelligence and good judgment in writing.’ (Thompson, L. C., & Williams, P. G. (1995). Plagiarism in the ESL classroom. Clearing House, 69(1), 27-29) • ‘What is defined as plagiarism by American standards is not defined as such by many Asian or European standards, in which… Taking ideas and words from different books and writers to build an answer seems to be an accepted academic practice.’ (Pennycook, A. (1996). Borrowing others' words: Text, ownership, memory, and plagiarism. TESOL Quarterly, 30(2), 201-230) • ‘In India, for example, undergraduates are not expected to cite sources and it is only at the graduate level where such activity is expected, but not necessary.’ (Handa, N., & Power, C. (2005). Land and discover! A case study investigating the cultural context of plagiarism. Journal of University Teaching and Learning Practice, 2(3), 64-84. Retrieved from ro.uow.edu.au/jutlp/vol2/iss3/8)

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