Chapter : 13

Copyright Law and Fair Use

What Is Copyright?

Simply put, "copyright is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used" (Fishman, 2008, p. 6).The intent of copyright is to advance the progress of knowledge by giving an author of a work an economic incentive to create new works (Loren, 2000, para. 12).

What Can be Copyrighted?

Tangible, original expressions can be copyrighted. This means, for example, that a verbal presentation that is not recorded or written down cannot be copyrighted. However, anything that is tangible can be copyrighted. There are three fundamental requirements for something to be copyrighted, according to the United States Copyright Office (2008, p. 3):

• Fixation:
• The item must be fixed in some way. The manner of fixation may be just about anything. For example, fixation occurs if something is written on a piece of paper, posted online, or stored on a computer or phone, or on an audio or video device.
• Originality:
• The work must be original. Originality includes a novel or a student's e-mail message to a professor. Both are considered examples of original expression.
• It is not necessary for the work to be completely original. Works may be combined, adapted, or transformed in new ways that would make them eligible for copyright protection.
• Minimal Creativity:
• The work must include something that is above and beyond the original. Verbatim use is not considered original. Reference to the original work that is used to discuss a new concept would be considered original, however.
• Creativity need only be extremely slight for the work to be eligible for protection. The law merely states this is "original works of authorship" (United States Copyright Office, 2008, p. 3).

What Cannot be Copyrighted?

• Works in the public domain:
• Ideas are in the public domain.
• Facts are in the public domain.
• Words, names, slogans, or other short phrases also cannot be copyrighted. However, slogans, for example, can be protected by trademark law.
• Blank forms.
• Government works, which include:
• Judicial opinions.
• Public ordinances.
• Administrative rulings.

• What Does Copyright Protect?

  Copyright provides authors fairly substantial control over their work. The four basic protections are:
  • The right to make copies of the work.
  • The right to sell or otherwise distribute copies of the work.
  • The right to prepare new works based on the protected work.
  • The right to perform the protected work (such as a stage play or painting) in public (U.S. Copyright Office, 2008, p. 1).

  What is Fair Use?

  Fair use is the most significant limitation on the copyright holder's exclusive rights (United States Copyright Office, 2010, para. 1). Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors:

  The purpose and character of the use:

  • Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use.
  • Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it more likely to be considered fair use (NOLO, 2010, para. 6). Recent case law has increasingly focused on transformative use to make fair use determinations – for a discussion of this topic see Lultschik, 2010.
  • Is the use of the copyrighted work for nonprofit or educational purposes? The use of copyrighted works for nonprofit or educational purposes is more likely to be considered fair use (NOLO, 2010, para. 6).

  The nature of the copyrighted work:

  • Is the copyrighted work a published or unpublished work? Unpublished works are less likely to be considered fair use.
  • Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
  • Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use (NOLO, 2010, para. 9).

  The amount and substantiality of the portion used:

  • The more you use, the less likely it will be considered fair use.
  • Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is not likely to be considered a fair use of the copyrighted work.
  • Is the particular portion used likely to adversely affect the author's economic gain? If you use the  "heart" or "essence" of a work, it is less likely your use will be considered fair (NOLO, 2010, para. 13).

  The effect of use on the potential market for the copyrighted work:

  • The more the new work differs from the original, the less likely it will be considered an infringement.
  • Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement.
  • Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use (NOLO, 2010, para. 11).

  What are the Rules for Fair Use for Instructors?

  Copying by instructors must meet tests for brevity and spontaneity:

  • Brevity refers to how much of the work you can copy.
  • Spontaneity refers to how many times you can copy and how much planning it would take to otherwise seek and obtain permission from a copyright holder (U.S. Copyright Office, 2009, p. 6).

  According to the rule, the need to copy should occur closely in time to the need to use the copies. If you use something repeatedly, it is less likely to be considered fair use. The expectation is that you will obtain permission from the copyright holder as soon as it is feasible. Using something over a period of multiple semesters or years is not within the spirit of the fair use exception.
  In addition, there are recommendations for what the U.S. Copyright Office calls "special" works.

  • "Certain works in poetry, prose, or in ‘poetic prose’ which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety" (U.S. Copyright Office, 2009, p. 6).
  • Special works should never be copied in their entirety.
  • An excerpt of no more than two pages or 10 percent, whichever is less, is the rule for special works (U.S. Copyright Office, 2009, p. 6).

  The use of the copies should be for one course at one school. The copies should include a notice of copyright acknowledging the author of the work (U.S. Copyright Office, 2009, p. 7).
  UMUC recommends that its faculty and instructors consider both the special guidelines for instructors and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use.

Chapter : 12

Knowledge Management

The traditional view of knowledge management has treated knowledge in terms of prepackaged or taken-for-granted interpretations of information. However, this static and contextual knowledge works against the generation of multiple and contradictory viewpoints that are necessary for meeting the challenge posed by wicked environments. - Dr. Yogesh Malhotra in Toward a Knowledge Ecology for Organizational White-Waters

Data is organized into information by combining data with prior knowledge and the person's self-system to create a knowledge or mental representation (Marzano, 1998). This is normally done to solve a problem or make sense of a phenomenon.

This knowledge representation is consistently changing as we receive new inputs, such as new learnings, feelings, and experiences. This causes the knowledge representation to change due to our brains being branched or interconnected to other representations, rather than layered.

Since our brains are branched, knowledge is dynamic, that is, our various knowledge representations change and grow with each new experience and learning.

Due to the complexity of knowledge representations, they not easily captured by documents, rather they reside within the creator of the representation. In many cases, the knowledge representation stays within the creator, in which case the “flow of knowledge” stops.

A Knowledge Management (KM) system, which may be as simple as a story or as complex as a million-dollar computer program, attempts to capture a snapshot of the person's knowledge representation. This is called knowledge harvesting. In the case of a story, the knowledge representation is passed onto others by means of a verbal snapshot. In the case of a computer program, it resides in a database that may be utilized by others. It is only a “snapshot” as further experiences and learnings within the creator may change the knowledge representation, while the static snapshot remains the same. In addition, it is only a partial snapshot as the full context of the original knowledge source is almost never fully captured.

Others may make use of the knowledge representation snapshot by using the story or tapping into the KM system and then combining it with their prior knowledge. This in turn forms a new or modified knowledge representation. This knowledge representation is then applied to solve a personal or business need, or explain a phenomenon.

Depending upon the KM system and the novelty of the situation, a snapshot of this new knowledge representation may or may not be entered into the system.

Knowledge Management Comes Quite Naturally to Humans

While there are normally only five ways to organize information — LATCH (Location, Alphabet, Time, Category, or Hierarchy), these five ways have a lot of versatility (Wurman, 2001). For example, a youngster with a toy car collection may sort them by color, make, type, size, type of play, or a dozen other divisions. The youngster can even make up categories as new divisions, play activities, or wants appear. However, a computer is considered "intelligent" if it can sort a collection into one category. Yet, many organizations are placing their bets on computer systems due to the amount of data such systems can hold and the speed at which it can sort and distribute once such categories and data are made known to it.

Knowledge Management Framework

Knowledge Acquisition

This is the gathering of knowledge. Do not try to gather every bit of knowledge throughout your organization... there is way too much! Find one or two good sources to work from. For example, Executive Edge (Dec 00/Jan 01) reported that Hill & Knowlton, a New York based public relations firm, that has offices and clients scattered across the globe, found that an enormous amount of its knowledge was tied up in emails. So, it implemented a system that allows strategically important email to be saved in a data repository that can be called upon by others when needed.

Knowledge Storage and Organization

This is where the knowledge will be stored. Much of it today is stored in paper based documents, such as books and manuals. However, this makes it hard to update and distribute. Paper based storage systems also lack dynamic storage systems. For example, a youngster's toy car collection can be categorized in a number of ways to suit his or her needs, while a manual is generally organized by chapters and key words . Moore's Law holds that the maximum processing power of a microchip at a given price doubles roughly every 18 months. In other words, computers become faster, but the price of a given level of computing power halves, which gives computers their organizing power.

Knowledge Distribution

A mechanism, such as an Intranet or Internet, allows the data in the repository to be quickly disseminated throughout an organization. Bob Metcalfe, the inventor of Ethernet technology (the enabler that allowed the information genie to jump out of the bottle), has a law named after him — Metcalfe's Law — the asset value of a computer network increases exponentially as each new node (individual user) is added to it. This is because each new user brings along a wealth of new linkages and resources, so the total network value grows far richer than the mere sum of its parts. This is what gives the Internet its power. Gilder's Law — the total bandwidth of communication systems will triple every 12 months, describes a decline in the unit cost of the net, which in turn allows more information to be distributed over the net.

Knowledge Application

This is the actual use of the knowledge and is generally measured by its effectiveness and usefulness. Thus, if you have bad information going in, you will have bad information coming out. Note: in most instances, the users and the knowledge drivers are the one and the same, that is, the users not only withdraw the information, but they must also input the information. To insure that good information goes in, involve the users from day one in the planning, design, and building of the system. It needs to mimic the way the users perform their tasks; not the way you perform your tasks. If they find it clumsy and hard to use, they will not use it. Build it by using metaphors from their working environment, not by using buzzwords from your environment.

Extracting Knowledge

Jeffery Pfeffer and Robert Sutton (2000) write that companies have wasted hundreds of millions on worthless knowledge management systems:

• The most valuable employees often have the greatest disdain for knowledge management. Curators badger these employees to enter what they know into the system, even though few people will ever use the information.
• The managers of these systems know a lot about technology, but little about how people actually use knowledge on the job.
• Tacit knowledge is extremely difficult to capture into these systems, yet it is more critical to task performance than explicit knowledge.
• Knowledge is of little use unless it is turned into products, services, innovations, or process improvements.
• Knowledge management systems work best when the people who generate the knowledge, are the same people who store it, explain it to others, and coach them as they try to implement it. These systems must be managed by the people who are implementing what is known, not those who understand information technology.

For a knowledge management strategy, see Capturing Lessons Learned with an AAR.

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