October 20, 2009 @ 08:10am
In my opinion, section 102 clearly excludes questionnaires, but I promised to get other opinions from the network.
[quote]§ 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.[/quote]
The specific questionnaire we were discussing was the "professional association membership questionnaire" which is easy to find if you have Dissertation Abstracts. If you have access to the full-text, the questionnaire is on pages 203-214 of the pdf or 183-194 of the original dissertation.
The questionnaire consists of 123 questions. Here are some samples:
"Are you responsible for hiring and firing personnel?"
"Do you use the nursing process to solve problems in the work setting?"
"How much did each of the following benefits impact your decision to join or remain in the professional nursing association?" "Circle one number only, 5 through 1"
At the end of the survey are 3 short paragraphs. Here's an excerpt:
"The answers that you provided will be used to learn more about the factors that contribute to professionalism, and about the impact of different association benefits upon this process. I am encouraged that you may believe as I do that it is important to examine our beliefs about the professionalism of nurses."
October 20, 2009 @ 08:10am
On what basis do you think a questionnaire would not be covered by the very expansive definition of a literary work? I would certainly think there would be some protection in the material you cite, because it seems to meet or exceed the very low threshold of original expression. Because of the idea/expression distinction in 102b, as well as the merger doctrine, I think the protection would be thin, but I find it hard to accept that there is no protection even from direct copying. The classic example of a unprotectable system was the blank accounting forms in Baker v. Sheldon, and a questionnaire seems to include a lot more protectable expression than those did.
October 20, 2009 @ 08:10am
[quote=ksmith]I think the protection would be thin, I find it hard to accept that there is no protection even from direct copying.[/quote]
I didn't explain my position well. I think a questionnaire is similar to a recipe. You can copyright a particular expression of a recipe but not the recipe itself. So, I agree that there is at least a little protection against direct copying. I'm suggesting that there is no protection from someone who reformats the questions and perhaps changes the paragraphs at the end.
[quote=ksmith]On what basis do you think a questionnaire would not be covered by the very expansive definition of a literary work?[/quote]
I haven't convinced myself yet, but I believe that this is a procedure or process for measuring something. In this case, the questionnaire measures "the impact of different association benefits upon...the professionalism of nurses."
[quote=ksmith]The classic example of a unprotectable system was the blank accounting forms in Baker v. Sheldon, and a questionnaire seems to include a lot more protectable expression than those did.[/quote]
I'm not familiar with this case, but I'll look it up. I'm thinking that the questionnaire is at the high end of a range that includes accounting forms.
October 20, 2009 @ 08:10am
[quote=ksmith]the merger doctrine[/quote]
I was not familiar with this doctrine, but I think this is the crux of my argument.
According to McCarthy's Desk Encyclopedia of Intellectual Property, pg. 269, a merger is "a congruence of an uncopyrightable idea with its copyrightable expression, so that to protect the expression would be to also protect the idea." That's what I was trying to say. It seems to me that a questionnaire can only be expressed in a very limited number of ways, none of which are substantially different from the others.
October 20, 2009 @ 08:10am
I'm uncomfortable with generalizing about questionnaires. I've seen questionaires that were quite factual, which I think would likely not be protected, like the business forms. I've also seen questionnaires with significant creativity which I think would be protected.
One trap to be careful of here is equating complexity with creativity. I even found myself doing this as I was writing this response. A questionnaire can be very complex, in order to get at very specific information. However, if that complexity is necessary for that response, it still probably wouldn't be covered. Examples of this might be scientific or mathematical questionnaires with complex formulas, or questionnaires with nested questions. However, questionnaires asking responses to a series of stories or situations might be one example of copyright protected creative expression.
October 20, 2009 @ 08:10am
[quote=Freya Anderson]I'm uncomfortable with generalizing about questionnaires.[/quote]
I agree.
[quote=Freya Anderson]However, questionnaires asking responses to a series of stories or situations might be one example of copyright protected creative expression.[/quote]
I agree with this too, although I think very few questionnaires would fall into this category.
Both of you have been very thought-provoking. Let me reframe the situation.
Here's the discussion that prompted my question:
A librarian was demonstrating techniques to find "testing instruments" that were not in Mental Measurements Yearbook. Someone suggested that when we help a student find these testing instruments, we should warn them about copyright. My immediate response, which I did not articulate well, was that a testing instrument is a procedure, not a literary work, and that procedures are not protected by copyright.
The librarians who disagreed with me were concerned about the licensing terms provided by Mental Measurements Yearbook. Here is an example: "2006 price data: Licensing cost available from publisher; $25 per administration and scoring manual; $25 per test."
So, here's my argument:
At best, questionnaires are thinly protected by copyright. Because copyright provides thin protection, many questionnaire producers protect their work by licensing it. However, other questionnaire producers make their questionnaires publicly available by publishing them, for example, in a journal article. These questionnaires are not protected by licensing and we should not dissuade students from using these questionnaires simply because other publishers wish to be paid.
Any problems with that argument?
Thanks for the feedback. It's been very helpful.
October 20, 2009 @ 08:10am
Yeah, I still have problems with this argument, all of them based on the fundamental point that I think there is sufficient expressive content in most questionnaires to qualify for protection. I disagree that licensing terms necessarily indicate a thin copyright. It is not the case that one would use a license because one did not hold a right; quite to the contrary, a license depends on ownership of a right that can be shared under a set of limiting terms.
The case law around "forms" has always involved blank forms such as the accounting sheets in Baker v. Sheldon, which, as I said, are very different from questionnaires. I should have added more detail to my original reference, however, but that was the only case I could cite off hand. A deeper look indicates that the threshold of expression is indeed quite low. Printed "scan-tron" answer sheets were found to be subject to copyright protection in Harcourt, Brace & World v. Graphic Controls (S.D.N.Y. 1971), and test questions (from the SATs) were also held to be protectable in Educational Testing Services v. Katzman (3rd Cir. 1986), which specifically declined to apply the merger doctrine. (These details come from Brown and Dencola's casebook on Copyright).
So I think it would be a rare and very basic questionnaire that would avoid protection entirely. I would say that AT LEAST, a questionnaire is thinly protected, and a questionnaire found in a journal article is presumptively subject to the same copyright protection as the rest of the article.
I too am susceptible to the wishful thinking that would like to make things easier for our students, but I don't think this is a place where we should give in to that wish.
October 20, 2009 @ 08:10am
Thanks again for your feedback. I'm going to read those cases as soon as I can.
[quote=ksmith]I disagree that licensing terms necessarily indicate a thin copyright.[/quote]
I didn't mean to suggest this. I was trying to disagree with the counterargument. I think some of my colleagues assume that the licensing terms of some questionnaires indicate strong copyright protection for all questionnaires.
Let's say that I'm willing to concede that questionnaires can be protected by copyright. I'd like to approach this situation from a different angle.
I'm trained in chemistry. In science, experiments should be reproducible. If a journal article claims a certain result, I should be able to repeat the experiment to see if I can get the same result. So, if I read a journal article in which the author makes a claim based on the results of a questionnaire, I believe that the author is giving me the right to reproduce the result by reproducing the test.
So, I see a contradiction. From a legal perspective, the questionnaire meets the low threshold of a literary work. However, from the scientific or social scientific perspective, the questionnaire that has been published in a journal is a procedure that produces a result.
So, in my current opinion, I see a big distinction between the licensed questionnaires listed in Mental Measurements Yearbook and the questionnaires that have been published in journal articles. In my mind, the act of publishing a questionnaire in a journal article has changed the questionnaire from a protected literary work into an unprotected procedure.
Any criticism of that opinion will be appreciated. Thanks.
October 20, 2009 @ 08:10am
This is an interesting thread. I think that the discussion of originality in the Feist case might be relevant when looking at questionnaires and determining whether they're protected by copyright. See: http://www.law.cornell.edu/copyright/cases/499_US_340.htm
Feist underscores the requirement for originality for copyright protection:
[11] Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to "secure for limited Times to Authors . . . the exclusive Right to their respective Writings." In two decisions from the late 19th Century -- The Trade-Mark Cases, 100 U.S. 82 (1879); and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) -- this Court defined the crucial terms "authors" and "writings." In so doing, the Court made it unmistakably clear that these terms presuppose a degree of originality.
If a questionnaire is sufficiently original, it would be protected. If not, no protection. For example, if the questionnaire is one question - "which presidential candidate are you voting for in November?" - I believe that would not be sufficiently original by itself.
On the other hand - for an example of an original questionnaire that would be protected under copyright (and for something fun on a Friday afternoon), see this URL for a quiz that MLC put together last year for our video gaming workshop. :) http://www.mlcnet.org/blog-tlr/?p=44
October 20, 2009 @ 08:10am
Thanks for all the feedback. Upon further thought, I've decided that I'm less concerned with how much protection is provided by the law and more concerned with how much protection is provided by librarians. I've decided that this change in focus is best handled with a new topic: http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=1432 .
Ruth, I skimmed the Feist case and it is very interesting. I found the "sweat of the brow" discussion particularly interesting. Also, the questionnaire, which I agree is protected, was fun and quite accurate in my case.
Thanks for all the feedback and the citations. I will carefully read all of them soon.
October 20, 2009 @ 08:10am
[quote=RuthDukelow]If a questionnaire is sufficiently original, it would be protected. If not, no protection. For example, if the questionnaire is one question - "which presidential candidate are you voting for in November?" - I believe that would not be sufficiently original by itself.[/quote]
I think that this is the key point. What if their are several unoriginal questions in an original document?