Cyberspace Legal Issues Georgia Harper University of Texas System Office of General Counsel

Overview

• Privacy of employee email

• Publisher's tort liability

• Copyright law

  • Ownership of copyrights

  • Fair use

  • Copyright management

• Trademark law

Privacy of Employee Email

• The reasonable expectation of privacy

• The Fourth Amendment limits State University searches and seizures

• The Electronic Communications Privacy Act (ECPA) affects all Universities

  • There is an exception for employer-owned electronic communication systems

  Before you click the send button, ask yourself:
  "How will this look on the front page of the New York Times?"

Publisher's Tort Liability

• Libel

• Invasion of the right of privacy

• Invasion of the right of publicity

Copyright Law

• What does copyright protect?

  Original works of authorship fixed in a tangible medium of expression.

• When does it begin and end?

  Today, it begins at the moment of fixation in a tangible medium of expression and ends at the expiration of 50 years after the death of the author. Different rules apply to older works, however, and there are special rules for works-for-hire.

• What does it mean to owners?

  Owners have exclusive rights to make copies, create derivative works, distribute, display and perform works publicly.

• What does it mean to users?

  If the law protects a work you wish to use, you must ask for permission from the copyright owner unless your planned use is covered by one of the law's exemptions, such as fair use.

• What is fair use?

  One-liner unavailable....

Ownership

• Author is Usually the Owner

  • More than one author may be joint owners of a work
    
    

• Employer is the Owner When:

  • Work created by employee within scope of employment
  • Work created pursuant to contract with assignment
    
    

• System Intellectual Property Policy

  • Permits author to own scholarly and educational works within field of expertise,
    unless the author was required to create the work
  • If the University has an interest in scholarly or educational works,
    it should be set out in an agreement to avoid confusion and misunderstanding
    
    
    • Ownership interest;
    • Right to use;
    • Right to reimbursement of contribution; and/or
    • Right to share in proceeds
      
      

• New Challenges

  • Multimedia courseware
  • Telecourses and distance learning
  • Changing nature of authorship
    
    
    • Inter-institutional collaborations
    • Student contributions
    • Work-for-hire contributions (contract labor)
    • Non-faculty University employees
      
      
  • Significant resource reimbursement
    
    
    • New Regental Policy on Copyright Management
      
      
  • The crisis in scholarly publishing (monographs and serials)

Fair Use

Section 107 of the Copyright Law describes four factors that must be taken into account in analyzing whether copying is fair use.

• Character of the use

• Nature of the material to be copied

• Amount and importance of the part copied

• Effect on market for permissions

Incorporating Others' Works

Into Your Works

• Fair use is less likely to apply in non-teaching situations

  • Images, music, graphics
  • Web-based information services (clipping services)
    
    

• Asking for permission/getting a release

Copyright Management

• Universities produce, distribute, maintain and consume scholarly and educational works

• Valuable copyright assets should be managed effectively:

  • To recover resources contributed to their creation
  • To secure rights to use for University purposes
  • To return University investment when copyright works are commercialized

Trademark Infringement

• Domain names

• Unauthorized use of trademarks and logos

  • Only permitted for truthful, verifiable comparative statements that are not likely to confuse the reader about whether the owner of the mark is responsible for, endorses or has authorized the site or its contents

Summary

• Electronic communications usually are not private

• Almost everyone understands the benefits of Web publishing:
  We also need to understand the liabilities and how to avoid them

• Individuals and Universities should manage
  their copyright assets more effectively

• The Copyright Crash Course offers online copyright support

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Intellectual Property Section | Office of General Counsel