Thursday, February 9, 2012

On Intellectual Property (Part 1/2)

As a consultant, speaker, and writer, you will be creating valuable intellectual property. You should protect that intellectual property, because it's how you earn your living. The flip side is to make sure that you properly respect intellectual property belonging to other people. Most people I know are sensible, honest, and fair when it comes to these matters. Sadly, though, a few are not. In these two posts I will explore certain aspects of intellectual property rights and courtesies. Let me reiterate that nothing I say here constitutes legal advice. Also, intellectual property laws may vary from country to country.

Citing the Work of Others

Perhaps it's because of my background as a research scientist, but I think it's important to credit other sources in books and articles. Citing other authors and their publications accomplishes two objectives. First, it gives credit to those who have done previous work in the area. I incorporated what I learned from them into my own thinking and creations; therefore, I should acknowledge their contribution. Second, citing other sources gives the interested reader places to go for more detail, supporting evidence for my positions, or even dissenting opinions. I look askance at technical books that contain no references. It's unusual for an individual to invent an entire new domain of study entirely on his own. Omitting references implies that the author is claiming credit for all of the material presented.

If you have some sources that you want to cite in an article, learn how the periodical to which you are submitting it handles citations. Books typically list references at the end, sorted alphabetically by author, although sometimes each chapter will list the sources cited therein. A bibliography of sources for further reading on certain topics isn't the same as a list of references that you cited at specific points in your text. Be sure to check your references scrupulously for completeness and accuracy. I've seen many erroneous citations to my own publications: incorrect first name or middle initial, last name misspelled, inaccurate title, incorrect copyright date, and the like.

Fair Use

Sometimes you might wish to include material created by someone else in your own work. Of course, the first thing you have to do is to cite the original source. If you don't own the copyright to a work, then you also need to get permission from the copyright owner to reuse their material. The exception is if the amount of material that you wish to use lies within the domain of "fair use." You can read what the U.S. Copyright Office has to say about fair use. Incidentally, a copyright notice does not have to appear on the material for it to be considered copyrighted. Nor does the author have to register it with the U.S. Copyright Office. If you created it, you hold the copyright to it unless you've granted that copyright to some other party, as with a work made for hire, for which the employer is considered the legal author of the work.

Unfortunately, fair use is not cut and dried. As I understand it, in general it is permissible to include short quotations or excerpts ("short" being undefined) in your own work without explicit permission, provided that you cite the original source. However, if either a significant fraction of your work is derived from someone else's work, or if you are incorporating a significant portion of someone else's work into yours ("significant" being undefined), then you need permission from the copyright holder. If you include a complete table or figure from someone else's work into your book or article, you ought to request permission. But as the U.S. Copyright Office says: "The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or [musical] notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

It's also within the rights of the copyright holder to request a licensing fee for you to reuse their material. For instance, I paid a licensing fee to include a Dilbert comic in one of my books. The comic was a perfect fit, well worth the modest cost. Periodically, I receive requests from people to include content from my books, articles, or websites in something they are creating. Sometimes, what they're requesting lies within my understanding of fair use and it's no problem. If they wish to use it for academic purposes, I'm generally okay with that. I do try to be reasonable and fair. Other times, though, someone wants to incorporate a figure, a complete document template, or some other resource I've created in a book or training course they’ll be using for commercial purposes. I generally charge a small licensing fee in these cases. Sometimes that's okay with the person who made the request and we make a deal; other times they decide not to use my material after all. Either way is fine with me.

(If you found this article helpful, please consider making a donation to the Norm Kerth Benefit Fund to help a consultant who has been disabled since 1999 with a traumatic brain injury from a car accident. You can read Norm's story or donate here. Thanks!)

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