
PORi Intellectual Property Policy
Policy Overview
PORi is committed to a high level of legal and ethical standards in the conduct of our business. It is the policy of PORi to compete fairly in the marketplace. This commitment to fairness includes respecting the intellectual property rights of our suppliers, customers, business partners, competitors, and others, including researchers, fellow educators and academic institutions. No PORi employee, independent contractor, or agent should steal or misuse the intellectual property rights owned or maintained by another.
Purpose
The purpose of this Policy is to help maintain PORi's reputation as a fair competitor, ensure the integrity of the competitive marketplace in intellectual property, and comply with the laws regulating intellectual property and industrial espionage.
Scope
This Policy applies to all employees, independent contractors, agents, officers, and directors of PORi, its subsidiaries, business units, partnerships, and joint ventures where PORi has a majority ownership position or exercises management control.
PORi's Intellectual Property
PORi is committed to protecting its own intellectual property, such as information, processes, and technology, from infringement by others. PORi's informational tools are available at our disposal because of significant investments of time and PORi funds. If our intellectual property is not properly protected, it becomes available to others who have not made similar investments. This would cause us to lose our competitive advantage and compromise our ability to provide unique services to our customers.
PORi's intellectual property includes confidential PORi business information, trade secret technology (such as computer software and systems and knowhow related to them), patented inventions and processes, trademarks and service marks, trade dress, and copyrighted works. It is the responsibility of every PORi employee to help protect PORi intellectual property. It is the responsibility of PORi instructors and administrative staff to foster and maintain awareness of the importance of protecting PORi's intellectual property.
PORi's intellectual property includes confidential PORi business information, trade secret technology (such as computer software and systems and knowhow related to them), patented inventions and processes, trademarks and service marks, trade dress, and copyrighted works. It is the responsibility of every PORi employee to help protect PORi intellectual property. It is the responsibility of PORi instructors and administrative staff to foster and maintain awareness of the importance of protecting PORi's intellectual property.
PORi Curriculum & Courses
PORi Use of Course Materials
Instructor Courses
Other PORi Courses
PORi Use of Course Materials
As part of the PORi Instructor Agreement, a course Instructor grants PORi a perpetual, non-exclusive, worldwide, royalty-free license to utilize Course Materials created by Instructor.
Instructor Courses
PORi acknowledges that the Instructor Courses contain Course Subject Matter derived from the knowledge and clinical experience of the Instructor. Provided the Instructor is not in breach of the Instructor Agreement’s non-compete covenants, the Instructor
- has the right to teach the Instructor Course for their own benefit provided all references to PORi, the PORi curriculum, “A Body Systems Approach” and/or Oncology Rehab are removed. Additionally, the Instructor will remove all slides that were originally created by or derived from other PORi Instructors or the PORi Clinical Director and that formed part of the Instructor Course.
- has the right to create and teach courses based on their clinical experience and knowledge after the termination of this Agreement.
Other PORi Courses
An Instructor does not have any rights to use any Course Materials or teach any PORi Courses other than Instructor Courses after the termination of the Instructor Agreement between PORi and the instructor
Definitions
- Course Materials. Text, images, diagrams, graphs, multimedia presentations, protocols, exercises designed for online collaboration, Web-ready content, multimedia developed for Web distribution (flash animation, Java applets, video clips, audio), individual and collaborative exercises, readings, bibliographies, lectures, exercises, simulations, and group projects. Course materials are used to accomplish the following purposes: (a) to explain course content; (b) to illustrate course concepts; (c) to illuminate certain portions of a course; and (d) to convey the content of the course as a means for achieving course goals.
- Course Subject Matter. Concepts, clinical treatment techniques, factual content, and procedures that constitute the knowledge the course is designed to impart to course attendees.
- Instructor Course. A PORi Course primarily developed by the Instructor on behalf of PORi.
- Other PORi Course. A PORi Course not developed by the Instructor.
- PORi Course. An educational course offered to medical professionals or other providers of oncology rehabilitation services to patients diagnosed with cancer. A PORi Course constitutes both Course Materials and the Course Subject Matter.
- PORi Course Curriculum. A group of PORi Courses designed to provide specialist oncology rehabilitation education to providers of oncology rehabilitation services. The PORi Course Curriculum is set by the Company in its sole discretion and all PORi Courses forming part of the PORi Course Curriculum must be created under the oversight of the Company Clinical Director, Julia Osborne, PT, CLT-LANA.
Intellectual Property of Others
PORi also is committed to respecting the intellectual property of others and, in particular, copyright. The rules with respect to intellectual property, including misappropriation of business information and trade secrets (e.g., computer systems, software, and related knowhow) and infringement of patents, trademarks and service marks, trade dress, and copyrights, are complex, so you should seek expert advice from PORi's attorneys to address specific issues that arise with respect to our business.
Fair Use of Third Party Copyrighted Materials
A Guide For Instructors
PORi has a specific policy in respect of copyright because of the nature of educating course participants and the need to base our courses on the latest evidence and research.
What is Copyright?
Copyright is the lawful right of an author, artist, composer or other creator to control the use of his or her work by others. A copyrighted work may not be duplicated, disseminated, or appropriated by others without the creator's permission. The public display or performance of copyrighted works is similarly restricted.
There are exceptions to this rule - notably the fair use doctrine - but generally the unauthorized use of a copyrighted work is copyright infringement and may subject the infringer to civil and criminal penalties under federal law. It is the course creator’s responsibility to ensure that they made all reasonable efforts to follow the fair use doctrine to respect the copyright of others and protect PORi and themselves from the consequences of infringing 3rd party copyright.
Fair Use
The doctrine of fair use in U.S. copyright law can help course creators use copyrighted materials in creating PORi Courses. The exclusive rights of copyright owners are subject to limitations. These limitations are outlined in Sections 107 through 118 of the Copyright Law of the United States.
For PORi, the most important limitation to the rights of copyright owners is the doctrine of “fair use,” which is codified in section 107 of the copyright law. Under the doctrine of fair use, one may use copyrighted works under certain circumstances without the use being considered an infringement on the rights of copyright owners.
Uses that may be considered fair include
However, these uses in and of themselves don't automatically qualify as fair. There are additional points to consider when determining fair use. Section 107 also sets out four factors to be considered in determining whether a use is fair.
The four factors of fair use
Copyright is the lawful right of an author, artist, composer or other creator to control the use of his or her work by others. A copyrighted work may not be duplicated, disseminated, or appropriated by others without the creator's permission. The public display or performance of copyrighted works is similarly restricted.
There are exceptions to this rule - notably the fair use doctrine - but generally the unauthorized use of a copyrighted work is copyright infringement and may subject the infringer to civil and criminal penalties under federal law. It is the course creator’s responsibility to ensure that they made all reasonable efforts to follow the fair use doctrine to respect the copyright of others and protect PORi and themselves from the consequences of infringing 3rd party copyright.
Fair Use
The doctrine of fair use in U.S. copyright law can help course creators use copyrighted materials in creating PORi Courses. The exclusive rights of copyright owners are subject to limitations. These limitations are outlined in Sections 107 through 118 of the Copyright Law of the United States.
For PORi, the most important limitation to the rights of copyright owners is the doctrine of “fair use,” which is codified in section 107 of the copyright law. Under the doctrine of fair use, one may use copyrighted works under certain circumstances without the use being considered an infringement on the rights of copyright owners.
Uses that may be considered fair include
- Criticism
- Comment
- News reporting
- Teaching
- Scholarship
- Research
However, these uses in and of themselves don't automatically qualify as fair. There are additional points to consider when determining fair use. Section 107 also sets out four factors to be considered in determining whether a use is fair.
The four factors of fair use
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work (e.g., whether it is factual or creative in nature)
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Factor 1: Purpose and character of the use
Nonprofit, educational use vs. commercial use - The U.S. Copyright Act favors nonprofit, educational uses of works as fair ones. Commercial uses are less favored, but this doesn't one can't make a fair use defense for using a work for profit.
Transformative uses
Factor 2: Nature of the copyrighted work
Fact over fiction
Consumables
Factor 3: Amount and substantiality of the portion used
How much can you use?
The heart of the matter
Factor 4: The effect on the potential market or value of the copyrighted work
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work.
For example, in Sony Corp v. Universal City Studios, the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In Harper & Row, the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work.
Nonprofit, educational use vs. commercial use - The U.S. Copyright Act favors nonprofit, educational uses of works as fair ones. Commercial uses are less favored, but this doesn't one can't make a fair use defense for using a work for profit.
Transformative uses
- A work is transformative if, in the words of the Supreme Court, it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Use of a quotation from an earlier work in a critical essay to illustrate the essayist’s argument is a classic example of transformative use.
- A use that supplants or substitutes for the original work is less likely to be deemed fair use than one that makes a new contribution and thus furthers the goal of copyright, to promote science and the arts.
- To quote the Supreme Court again, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.” A transformative work has a new purpose or use or appears in a new context.
Factor 2: Nature of the copyrighted work
Fact over fiction
- Uses of works that are factual or non-fiction in nature are more likely to be considered fair ones. As copyright expert Kenneth Crews states in Copyright Law for Librarians and Educators, the reason for this is because "a central purpose of copyright law, including fair use, is to allow for the growth of knowledge" (p. 62). To accomplish this goal, Crews states, "We regularly need to use and build upon earlier works . . . [and] most often, these efforts depend on using the nonfiction works of earlier scholarship" (p. 62).
- Notwithstanding the point above, we need to exercise caution if the copyrighted material was prepared primarily for the higher educational market—e.g., a textbook? (Fair use is likely to be more restricted for such material, since photocopying it is more likely to harm the market for it than would be true if the original were aimed primarily at a different market.)
- The use of creative works (fiction, art, photography, music, and films, etc.) are less likely to be viewed as fair. However, that doesn't mean that you can't use them for purposes such as commentary, criticism, reporting, etc. Rather, the bar is set higher for the use of creative works. As with all fair use analyses, you should consider all four factors when determining whether your use is a fair one.
Consumables
- Despite fair use favoring factual works, there are times when the use of copyrighted factual works weighs against fair use.
- Consider "consumable" materials--works such as workbook exercises and tests (among others) that are designed to be used (consumed by the user), then repurchased.
- Such as use might not be considered a fair one, in part because of the nature of the work but also because of the use's effect on the market for the work.
Factor 3: Amount and substantiality of the portion used
How much can you use?
- It's not possible to give a specific amount of content that a copyrighted work can be used for a use to still be considered fair--although some publishers, libraries, and copyright owners have tried over time as a way to define (and limit) fair use.
- Some fair use guidelines do recommend specific amounts that are allowed--so many words, so many lines, 10 percent or less, etc.
- A good rule of thumb is that the less the amount used, the more likely the use is a fair one.
- Nevertheless, no specific amount or percentage appears in U.S. law and acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The heart of the matter
- While quantity should figure into a fair use analysis of a work, so should quality: It's important to pay attention to what you're using, not just how much.
- Is what you're hoping to use the "heart of the work," the main point, the "big reveal" that eliminates the need for anyone else to consult the work?
Factor 4: The effect on the potential market or value of the copyrighted work
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work.
For example, in Sony Corp v. Universal City Studios, the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In Harper & Row, the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work.
- First, courts consider whether the use in question acts as a direct market substitute for the original work. In Campbell, the Supreme Court stated that "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur".
- Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for college students, when a market already existed for the licensing of course-pack copies.
Help with determining fair use
Some General Measures
The following are some general measures that, while not substituting for the four-factor fair use test, will tend to assist a finding of fair use when copyrighted material is made available in a course presentation, on a course website or in course materials distributed to course participants:
Some General Measures
The following are some general measures that, while not substituting for the four-factor fair use test, will tend to assist a finding of fair use when copyrighted material is made available in a course presentation, on a course website or in course materials distributed to course participants:
- Use others’ copyrighted material in your course website only if the material is integral to the course curriculum.
- Include your own comments, criticism and explanation, or otherwise make your use of the copyrighted material transformative.
- Use only a limited portion of others’ copyrighted material, and only what is necessary for your educational purpose.
- Be wary of using others’ copyrighted material that is produced in digital form primarily for instructional use, or where your use would reasonably be expected to harm the market for the analog version of the material.
- Consider whether a license (permission) allowing the educational use of the material that you wish to make can readily be purchased. If it can, this fact generally will weigh against fair use, though it still may be possible to prevail on fair use depending on the other circumstances (see the preceding discussion).
- Don’t incorporate material in your website in lieu of having participants buy books or other such material.
- Limit access to participants enrolled in the course.
- Only incorporate portions from lawfully acquired copies of others’ materials.
- Avoid taking many excerpts or portions from any one work.
- Alter others’ works only where necessary to support specific instructional objectives.
- Credit the sources fully and display the copyright notice from the original.
Resources
Please note that these resources provide guidance to help you determine what may be fair use of a copyrighted work. They do not provide a guarantee that your use is a fair one.
Here are a few online tools to help you make a decision about fair use:
- “Using Existing Works" from the University of Minnesota
- The "Fair Use Evaluator", an interactive tool from the American Library Association
- “Using the four factor fair use test” from the University of Texas
- The “Fair Use Checklist” from Columbia University
- A short video from the Stanford (University) Center for Internet & Society discusses some common myths about fair use and copyright.
Balancing risks
Making a fair use defense of copyright works involves a certain amount of judging risk and balancing the need for and use of a work against such risks. Understanding the concept of fair use and how to analyze use using the four factors with regard to copyrighted works will help you reduce risk.
Making a fair use defense of copyright works involves a certain amount of judging risk and balancing the need for and use of a work against such risks. Understanding the concept of fair use and how to analyze use using the four factors with regard to copyrighted works will help you reduce risk.

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