through the intellectual property bog!
deluge has created a muddy bog of intellectual property issues
that are germane to schools and teachers. In this series of articles
sponsored by the New Zealand Law Foundation, we’ll provide some
clear definitions, explanations and examples.
property: Intellectual property is an umbrella concept. What it
covers includes copyright, patents, designs, trademarks, passing
off, franchising and licensing. It’s a concept integral to the
so-called Knowledge Age. In New Zealand it is the responsibility
of the Ministry of Economic Development - info is available from
the Intellectual Property Office of New Zealand’s information
library (www. iponz.govt.nz). AJ Park sums it up: "Intellectual
property law is concerned with commercially valuable ideas, secrets,
concepts and reputations" (http://ajpark.com). The Intellectual
Property Society of Australia and New Zealand says:
property rights underpin much of the investment of time, money
and resources that is expended in the process of innovation in
our society. Through the laws of patents, copyright, designs,
trade marks, unfair competition and trade secrets, protection
is given to those who create, develop and market new concepts
and ideas across a vast range of industries and occupations (www.
Copyright in New Zealand is enacted in the Copyright Act 1994,
and subsists in original literary, dramatic, musical and artistic
works amongst other things. Computer programs, databases and multimedia
productions are protected as literary works.
the expression of an idea, not the idea itself and enables the
owner to prevent others from copying his or her original work.
Copyright automatically comes into existence when a work is created
and in the usual course of events the author is the first owner
of copyright. Some exceptions to this exist, for example where
a work has been created by an employee in the course of his or
her employment, the employer will be the first owner of any copyright
subsisting in the work. Presumptions of this nature are subject
to any agreement to the contrary.
owner has the exclusive right to do certain things in relation
to the work, including copying the work and issuing copies of
the work to the public. Any other person who does any of these
acts is infringing copyright.
In relation to
literary, dramatic, musical or artistic works, copyright expires
at the end of fifty years from the end of the calendar year in
which the author dies. In the case of computer generated works,
photographs, sound recordings, films, broadcasts, cable programmes
and Crown copyright works, copyright expires 50 years from the
end of the calendar year in which the work was made.
Who owns the
copyright? The Intellectual Property Office of New Zealand
owner of a copyright is usually the author or maker. However,
if the author or maker was employed and made the work in the course
of his or her employment the employer is usually the first owner
If the author
or maker of some kinds of work (e.g. sound recording, films, photographs
and computer programs) was commissioned to make that work, the
first owner of the copyright is usually the person who commissioned
the work to be made. In the case of works by employee or commissioned
works, the parties can agree to vary the usual first ownership
How does this
If you write/
develop something while you are employed by one school and then
you move to another school, who owns the copyright to your work
and can you take it with you? (Probably not if you generated it
as part of your work, but you need to have sought legal advice
and determined the copyright status with your employer in advance,
for example, as a contractual arrangement. Even if the school
owns the copyright, and unless a waiver has been signed, the author
still has certain moral rights, for example, to be identified
as the author, and to object to changes made to work if it can
be demonstrated that these would damage their reputation.)
How can teachers
breach copyright unintentionally?
You may not reproduce
substantial extracts from a work - books, articles, websites.
While you CAN quote and paraphrase material, you are infringing
copyright if the quote or paraphrase constitutes a "substantial
part" of the work.
Any adaptation of any work must be authorised by the rights holder.
The rights holder has an exclusive right to the adaptation of
her/ his work. You can’t just adapt models, diagrams or illustrations
with no reference to the owner of the intellectual property. Teachers
often think that because they’ve changed it, it’s theirs. It’s
not! Contact the owner of the i.p. and ask for permission. Then
you can put "Adapted with permission from (source)".
Passing off usually applies when another person seeks "to
infer that his/ her products are somehow connected to your products,
essentially ‘cashing in’ on the good will and reputation that
your products may enjoy in the marketplace" (www.piperpat.
co.nz/resource/ipinfo.html). Adapting and re- writing someone
else’s work can constitute passing off if the owner of the i.p.
feels it constitutes damage to their commercial interests or reputation.
Simply, if they originated those materials, it is their prerogative
to change or adapt them, not yours.
If your school does NOT have a licence with Copyright Licensing
Ltd, in short, proceed with great caution!
Here’s a short
summary, but there’s excellent advice available on the CLL website
(www.copyright.co.nz), and CLL run seminars for schools.
If your school
DOES have a CLL licence you CAN copy:
• whole or
part of an article or poem
copies (within restrictions - 10% or 1 chapter) for students,
but you still
CAN’T copy something if:
• the publisher
is not part of the copyright licensing scheme
• the copyright
owner has expressly excluded it from being copied under licence
• it constitutes
"privately owned documents issued for tuition purposes and
limited to clientele who pay fees" (www. copyright.co.nz).
So you don’t have the right to copy handouts from courses or seminars
unless they say you may!
If your school
does NOT have a CLL licence, your copying rights are determined
by the Copyright Act. For example, you may not copy a poem, a
short story or article for each member of your class!
This refers to the practice of compiling stories, poems and other
materials and on-selling them to students. Compiling copies of
materials covered by CLL provisions and recovering costs may be
OK, but ethically this is ‘grey’ territory and preferably avoided.
If you’re not licensed with CLL anthologising is a total NO NO
under any circumstances.
The ease with
which schools and teachers can create their own websites, and
the ease with which info from websites, etc, can be copied and
adapted, raises some thorny intellectual property issues. Legal
precedent lags behind the pace of technological innovation, but
there have already been enough unfortunate incidents involving
New Zealand teachers’ web publishing to suggest that schools and
teachers need to examine these issues.
is both a means of communication and a means of publishing. This
sets up a fundamental tension between a medium with unprecedented
opportunities for relatively cheap information sharing, on the
one hand and, on the other, unprecedented opportunities for inexpensive
The anarchic and free-for-all nature of the Web lends support
to the intoxicating notion that, for the first time in the history
of humankind, we are able to make information available to anyone,
anywhere at any time. The tension arises when you ask who owns
that information. The law is quite clear.
The owner of
the copyright is, as suggested earlier, the author/ creator, employer
or commissioning agent, and the same copyright laws apply to CD
Roms, websites, multimedia presentations, e-zines and even listservs
and bulletin boards as they do to books and periodicals. Similarly,
while ideas and facts are not copyright, the form (print or electronic)
in which those ideas and facts are expressed is automatically
covered by copyright.
A simple way
for schools and teachers to avoid trouble is to regard themselves
as e-publishers, bound by all the legal and ethical considerations
that bind any publisher.
A teacher goes to a seminar and finds it useful. She wants to
share the info with her colleagues. She adapts the author’s model,
scans the handout and uploads it onto the school website. Looked
at from a sharing point of view, this is a nice gesture. Looked
at from a publishing perspective, she needs a good copyright lawyer!
The owner of the intellectual property is likely to be the author/
presenter of the seminar, and just because the teacher paid to
attend and was given a handout, the intellectual property does
NOT belong to her! You can own a book, but you don’t own the copyright
to that book. Even making multiple copies of the handout is illegal
without that i.p. owner’s permission. Re-publication on a website,
even if only for ‘domestic consumption’ breaches copyright. Adapting
the model without the author’s permission is also an infringement.
and teachers are probably best advised to err on the side of caution
and seek permission to copy and re-publish all not-original material
on their websites and in their multimedia presentations - even
As a rule
of thumb, the copyright owner will need to authorise the display
or availability of original material on the internet. Anything
less can amount to copyright piracy - with the remedies for the
owner including damages, penalties and reimbursement ... (Beaumont
and Cronin, 2001)
if your school belongs to the Copyright Licensing (CLL) scheme,
this scheme does not extend to copying permissions for websites,
CD Roms, etc.
What is covered?
As indicated earlier, in addition to literary, artistic and musical
compositions e-media such as websites, CD Roms, multimedia presentations,
emails, etc are covered. Because so many educational sites rely
heavily on material copied from other resources and sites (with
or without permission), you can’t assume that, because you copied
it, you are in the copyright clear. Just as commercial print publishers
do you have to make every effort to track all the material you
include back to it’s source and obtain required authorisation.
Even the music students use as background for their multimedia
presentations needs to be copyright cleared!
The message is
simple. Generate your own content, and make sure that any content
is either original or is re-produced with permission. Large-scale
recycling of other educators’ ideas is NOT ethically sound or
Linking and framing are grey territory legally, but not in terms
of copyright. By linking to another page you risk the implication
that you are the author of the material linked to. This may constitute
‘passing off’ rather than copyright infringement. Deep linking
( linking to a specific page in another website, bypassing the
home page) should be avoided for this reason.
you are writing ‘study skills’ hints for your students and you
find a good page on notemaking embedded in someone else’s site.
So you link straight to this page, in effect incorporating their
content into your site.This is legally dubious, as is linking
where a portion of another site is viewed within a frame on your
site. Direct linking also begs questions when, for example, the
linked material breaches copyright. Are you responsible for someone
else’s breach of copyright?
good manners: At the heart of all of this are the simple old
fashioned concepts of ethics and good manners. Again, it’s better
safe than sorry. If you want to link to any one site, or to use
their logo on your site, ASK them.
and publishing work hand-in-hand is when people acknowledge that
intellectual property is a commodity. It took time and money,
to generate. With so much web education in the hands of self-employed
educators who are not institutionally affiliated, it’s worth considering
this thought: "anything
generating income or interfering with another’s potential income
dramatically increases the chance of suit" (www.fplc.edu/tfield.cOpyNet.htm).
are happy to have their material shared if the integrity of the
original is not compromised, if it doesn't affect their commercial
business, and if you’ve taken the trouble to check the copyright
and ask for permission where needed.
S. Strong reminds us that:
us feel so inundated by random information that we despair of
ever managing to know even the essentials of what we must know.
Good publishers, by screening the information for quality and
validating it... perform an enormous service (Cited in Thomas
Field’s article on www. PIERCELAW.EDU/tfield/cyberpub.htm).
and Cronin, M. (2001). "Creative rewards secure in cyberspace."
NZ Herald Thursday July 12, C2.
What you need to teach students about intellectual property...
have been published with a grant from the New Zealand Law Foundation
and checked for legal accuracy by A.J. Park.