Despite rulings, faculty and staff should heed copyrights

Faculty and staff should continue to follow existing standards for using copyrighted and patented information, despite recent U.S. Supreme Court rulings, a UW–Madison attorney says.

The rulings appear to prevent publishers, inventors and others from suing state agencies – including state universities – for infringing their copyrights or patents. The court ruled that states cannot be sued in federal court for such violations.

“Although the landscape appears to have changed over who can sue states in federal court, our opinion is that we should continue to do business as usual here at Wisconsin when using the copyrighted works of another person,” says Henry Cuthbert, senior legal counsel. “We simply should not and cannot afford to be in the business of knowingly violating the intellectual property interests of others. After all, we create a fair amount of intellectual property on this campus.”

Cuthbert bases his legal advice on the fact that it is still unclear what the recent decisions mean with respect to whom can be sued. It is possible that state officials themselves may still be sued in federal court in an effort to stop them from violating copyright and patent laws. Injunctions may also be issued.

Copyrighted works of others may be used at universities under the fair-use doctrine and other exemptions allowed under the Copyright Law. With fair use, copyrighted material can be reproduced in limited amounts for teaching, research, scholarship, news reporting, comment and criticism. The following factors are applied to determine fair use: the nature of the material; the purpose of its use; amount of material used; and the impact on the market for the work.

“Press reports and Internet chatter might lead some on campus to say that fair use is out the window, that they can use the copyrighted works of others with impunity,” Cuthbert says. “This should not be the lesson we take from these cases.

“We should not be in a rush to toss all that we stand for out the window,” he adds. “When using the copyrighted works of another, one should feel free to use them to the degree permitted by law. If the material is not the original work of the user, is not in the public domain, does not fall within the parameter of fair use or other exemptions of the Copyright Law, the user should seek permission from the rights holder.”

The June rulings stem from two cases in Florida and a related case in Maine. In the Florida cases, a private savings bank sued the State of Florida, claiming one of its agencies violated patent and trademark laws by copying its computerized college prepayment plan. The court ruled in both cases that the Florida Prepaid Postsecondary Education Expense Board couldn’t be sued in federal court because it was a state agency. In the Maine case, the court ruled that parole officers cannot sue the state in federal court for overtime wages earned but not paid to them.

Many legal experts say the rulings are the most influential ever in terms of federalism and states’ rights.