copyright violation of academic material?
- January 22, 2006 @ 11:39amanonymous_visitor says:This is my first visit to the boards. Please forgive me if this topic has already been covered. I have a couple of questions regarding an unusual (I hope) situation and thought maybe someone here could help. Being as general as possible, following is a brief summary of the situation:
1-A researcher at a large research university, under a federal grant, creates an instrument for use with a particular clinical population. The instrument is designed to be used during a face-to-face clinical interview with a clinician trained in use of the instrument. This tool is copyrighted; it does cost money ($50) to order a copy with ancillary materials; and users must be trained prior to beginning to use the tool clinically.
2-Another researcher in a small, independent for-profit organization, under a state grant, is paid to develop a computerized assessment tool for use with a similar population to instrument #1 above. One portion (approximately one-half) of this instrument is taken verbatim from a section in instrument #1 without proper credit, written permission from the authors, etc. The tool was apparently ordered, the fee paid, and then the contents used in the development of instrument #2. Essentially, it was used without the knowledge of the creators. Thus, researcher #2 has technically "sold" a product that was not that researcher's to sell to the state.
My questions are as follows:
1-What is the legal obligation of an employee of researcher #2 once that employee gains knowledge of the copyright violation? It should be noted that researcher #2 most likely never thought about copyright and did not set out to steal the instrument, although that is the outcome of the researcher's behavior.
2-What are researcher #2's legal options to resolve the situation, assuming that an employee brings the violation to the researcher's attention?
Thank you very much in advance for any help you can provide.
- January 23, 2006 @ 8:58amCOvalle says:First, I would actually seek legal counsel. If the agency that researcher#2 belongs to has counsel, talk to them.
First, if the tool was created under a federal grant, I would make sure that the tool is actually copyrighted. Federal government documents are usually in the public domain, and many federally funded projects require that results or documents generated also be in the public domain. The federal grant should have that information.
Then, I would see if your use falls under an exemption of some sort. I don't have time at the moment to really do an analysis, but I don't think this particular use would fit as a fair use or fall under another exemption, particularly given the for-profit nature of this use.
An employee of researcher #2- well, if this employee is involved with the infringement, they should definitely bring the infringement to the employer's attention. At that point, if you (employee and employer) are aware you are infringing and continue to do so, it is likely willful infringement, which increases damages and the potential for the act to be criminal copyright infringement.
- January 24, 2006 @ 9:22pmRDavis says:I agree with cjovalle that researcher #2's use would probably not fall under fair use, esp. given the for-profit nature of the organization. You said that one-half, a fairly large portion, of researcher #2's instrument was lifted verbatim from the original work, but it isn't clear how much that portion constituted in the original work. Was it a similarly large portion? If so, that's yet another factor that would probably weigh against fair use.
From your question it sounds as if the employee of researcher #2 merely became aware ("gain[ed] knowledge") of the possibly infringing activity after the fact. If so, then cjovalle's point about continuing to infringe after such knowledge is acquired constituting willful infringement is also well-taken. But if the employee also materially contributed to the infringement then I believe (as a layperson, not a lawyer) that he/she could also be sued for contributory infringement.
In any case, the fact that researcher #2 "most likely never thought about copyright and did not set out to steal the instrument" will not stand as a defense in court, should it ever come to that, so I think seeking legal counsel may be a wise idea.
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