[long] Nice Summary of Copyright Issues

[John Gear <catalyst -at- PACIFIER -dot- COM>]

>   ClariNet * Brad Templeton Home Page * Copyright Myths

>                    10 BIG MYTHS ABOUT COPYRIGHT EXPLAINED

>   By Brad Templeton

>  AN ATTEMPT TO ANSWER COMMON MYTHS ABOUT COPYRIGHT SEEN ON THE NET AND
>  COVER ISSUES RELATED TO COPYRIGHT AND USENET POSTING.



>   1) "If it doesn't have a copyright notice, it's not copyrighted."

>   This was true in the past, but today almost all major nations follow
>   the Berne copyright convention. For example, in the USA, almost
>   everything created privately and originally after April 1, 1989 is
>   copyrighted and protected whether it has a notice or not. The default
>   you should assume for other people's works is that they are
>   copyrighted and may not be copied unless you know otherwise. There are
>   some old works that lost protection without notice, but frankly you
>   should not risk it unless you know for sure.

>   It is true that a notice strengthens the protection, by warning
>   people, and by allowing one to get more and different damages, but it
>   is not necessary. If it looks copyrighted, you should assume it is.
>   This applies to pictures, too. You may not scan pictures from
>   magazines and post them to the net, and if you come upon something
>   unknown, you shouldn't post that either.

>   The correct form for a notice is:


>        "Copyright [dates] by [author/owner]"

>   You can use C in a circle ) instead of "Copyright" but "(C)" has never
>   been given legal force. The phrase "All Rights Reserved" used to be
>   required in some nations but is now not needed.



>   2) "If I don't charge for it, it's not a violation."

>   False. Whether you charge can affect the damages awarded in court, but
>   that's essentially the only difference. It's still a violation if you
>   give it away -- and there can still be heavy damages if you hurt the
>   commercial value of the property.

>   3) "If it's posted to Usenet it's in the public domain."

>   False. Nothing is in the public domain anymore unless the owner
>   explicitly puts it in the public domain(*). Explicitly, as in you have
>   a note from the author/owner saying, "I grant this to the public
>   domain." Those exact words or words very much like them.

>   Some argue that posting to Usenet implicitly grants permission to
>   everybody to copy the posting within fairly wide bounds, and others
>   feel that Usenet is an automatic store and forward network where all
>   the thousands of copies made are done at the command (rather than the
>   consent) of the poster. This is a matter of some debate, but even if
>   the former is true (and in this writer's opinion we should all pray it
>   isn't true) it simply would suggest posters are implicitly granting
>   permissions "for the sort of copying one might expect when one posts
>   to Usenet" and in no case is this a placement of material into the
>   public domain. Furthermore it is very difficult for an implicit
>   licence to supersede an explicitly stated licence that the copier was
>   aware of.

>   Note that all this assumes the poster had the right to post the item
>   in the first place. If the poster didn't, then all the copies are
>   pirate, and no implied licence or theoretical reduction of the
>   copyright can take place.

>   (*) Copyrights can expire after a long time, putting someting into the
>   public domain, and there are some fine points on this issue regarding
>   older copyright law versions. However, none of this applies to an
>   original article posted to USENET.

>   Note that granting something to the public domain is a complete
>   abandonment of all rights. You can't make something "PD for
>   non-commercial use." If your work is PD, other people can even modify
>   one byte and put their name on it.

>   4) "My posting was just fair use!"

>   See other notes on fair use for a detailed answer, but bear the
>   following in mind:

>   The "fair use" exemption to copyright law was created to allow things
>   such as commentary, parody, news reporting, research and education
>   about copyrighted works without the permission of the author. Intent,
>   and damage to the commercial value of the work are important
>   considerations. Are you reproducing an article from the New York Times
>   because you needed to in order to criticise the quality of the New
>   York Times, or because you couldn't find time to write your own story,
>   or didn't want your readers to have to pay to log onto the online
>   services with the story or buy a copy of the paper? The first is
>   probably fair use, the others probably aren't.

>   Fair use is almost always a short excerpt and almost always
>   attributed. (One should not use more of the work than is necessary to
>   make the commentary.) It should not harm the commercial value of the
>   work -- in the sense of people no longer needing to buy it (which is
>   another reason why reproduction of the entire work is generally
>   forbidden.)

>   Note that most inclusion of text in Usenet followups is for commentary
>   and reply, and it doesn't damage the commercial value of the original
>   posting (if it has any) and as such it is fair use. Fair use isn't an
>   exact doctrine, either. The court decides if the right to comment
>   overrides the copyright on an individual basis in each case. There
>   have been cases that go beyond the bounds of what I say above, but in
>   general they don't apply to the typical net misclaim of fair use. It's
>   a risky defence to attempt.

>   5) "If you don't defend your copyright you lose it."

>   False. Copyright is effectively never lost these days, unless
>   explicitly given away. You may be thinking of trade marks, which can
>   be weakened or lost if not defended.

>   6) "Somebody has that name copyrighted!"

>   You can't "copyright a name," or anything short like that. Titles
>   usually don't qualify, but I doubt you could write a song entitled
>   "Everybody's got something to hide except for me and my monkey."
>   (J.Lennon/P.McCartney)

>   You can't copyright words, but you can trademark them, generally by
>   using them to refer to your brand of a generic type of product or
>   service. Like an "Apple" computer. Apple Computer "owns" that word
>   applied to computers, even though it is also an ordinary word. Apple
>   Records owns it when applied to music. Neither owns the word on its
>   own, only in context, and owning a mark doesn't mean complete control
>   -- see a more detailed treatise on this law for details.

>   You can't use somebody else's trademark in a way that would unfairly
>   hurt the value of the mark, or in a way that might make people confuse
>   you with the real owner of the mark, or which might allow you to
>   profit from the mark's good name. For example, if I were giving advice
>   on music videos, I would be very wary of trying to label my works with
>   a name like "mtv." :-)

>   7) "They can't get me, defendants in court have powerful rights!"

>   Copyright law is mostly civil law. If you violate copyright you would
>   usually get sued, not charged with a crime. "Innocent until proven
>   guilty" is a principle of criminal law, as is "proof beyond a
>   reasonable doubt." Sorry, but in copyright suits, these don't apply
>   the same way or at all. It's mostly which side and set of evidence the
>   judge or jury accepts or believes more, though the rules vary based on
>   the type of infringement. In civil cases you can even be made to
>   testify against your own interests.

>   8) "Oh, so copyright violation isn't a crime or anything?"

>   Actually, recently in the USA commercial copyright violation involving
>   more than 10 copies and value over $2500 was made a felony. So watch
>   out. (At least you get the protections of criminal law.) On the other
>   hand, don't think you're going to get people thrown in jail for
>   posting your E-mail. The courts have much better things to do than
>   that. This is a fairly new, untested statute.

>   9) "It doesn't hurt anybody -- in fact it's free advertising."

>   It's up to the owner to decide if they want the free ads or not. If
>   they want them, they will be sure to contact you. Don't rationalize
>   whether it hurts the owner or not, ask them. Usually that's not too
>   hard to do. Time past, ClariNet published the very funny Dave Barry
>   column to a large and appreciative Usenet audience for a fee, but some
>   person didn't ask, and forwarded it to a mailing list, got caught, and
>   the newspaper chain that employs Dave Barry pulled the column from the
>   net, pissing off everybody who enjoyed it. Even if you can't think of
>   how the author or owner gets hurt, think about the fact that piracy on
>   the net hurts everybody who wants a chance to use this wonderful new
>   technology to do more than read other people's flamewars.

>   10) "They e-mailed me a copy, so I can post it."

>   To have a copy is not to have the copyright. All the E-mail you write
>   is copyrighted. However, E-mail is not, unless previously agreed,
>   secret. So you can certainly report on what E-mail you are sent, and
>   reveal what it says. You can even quote parts of it to demonstrate.
>   Frankly, somebody who sues over an ordinary message might well get no
>   damages, because the message has no commercial value, but if you want
>   to stay strictly in the law, you should ask first. On the other hand,
>   don't go nuts if somebody posts your E-mail. If it was an ordinary
>   non-secret personal letter of minimal commercial value with no
>   copyright notice (like 99.9% of all E-mail), you probably won't get
>   any damages if you sue them. Note as well that the law aside, keeping
>   private correspondence private is a courtesy one should usually
>   honour.
>        _______________________________________________________________

>  IN SUMMARY
>     * These days, almost all things are copyrighted the moment they are
>       written, and no copyright notice is required.
>     * Copyright is still violated whether you charged money or not, only
>       damages are affected by that.
>     * Postings to the net are not granted to the public domain, and
>       don't grant you any permission to do further copying except
>       perhaps the sort of copying the poster might have expected in
>       the ordinary flow of the net.
>     * Fair use is a complex doctrine meant to allow certain valuable
>       social purposes. Ask yourself why you are republishing what you
>       are posting and why you couldn't have just rewritten it in your
>       own words.
>     * Copyright is not lost because you don't defend it; that's a
>       concept from trademark law. The ownership of names is also from
>       trademark law, so don't say somebody has a name copyrighted.
>     * Copyright law is mostly civil law where the special rights of
>       criminal defendants you hear so much about don't apply. Watch out,
>       however, as new laws are moving copyright violation into the
>       criminal realm.
>     * Don't rationalize that you are helping the copyright holder; often
>       it's not that hard to ask permission.
>     * Posting E-mail is technically a violation, but revealing facts
>       from E-mail isn't, and for almost all typical E-mail, nobody could
>       wring any damages from you for posting it.

>       _______________________________________________________________

>   Permission is granted to freely copy (unmodified) this document in
>   electronic form, or in print if you're not selling it. On the WWW,
>   however, you must link here rather than copy it. If you had not seen
>   a notice like this on the document, you would have to assume you did
>   not have permission to copy it. This document is still protected by
>   you-know-what even though it has no copyright notice.
>      _______________________________________________________________

>   It should be noted that the author, as publisher of an electronic
>   newspaper on the net, makes his living by publishing copyrighted
>   material in electronic form and has the associated biases. However, DO
>   NOT E-MAIL HIM FOR LEGAL ADVICE; for that use other resources or
>   consult a lawyer. Also note that while most of these principles are
>   universal in Berne copyright signatory nations, some are derived from
>   Canadian and U.S. law. This document is provided to clear up some
>   common misconceptions about intellectual property law that are often
>   seen on the net. It is not intended to be a complete treatise on all
>   the nuances of the subject. A more detailed copyright FAQ, covering
>   other issues including compilation copyright and more intricacies of
>   fair use is available in the same places you found this note, or here.
>   Also consider gopher://marvel.loc.gov/11/copyright for actual
>   statutes. Another useful document is the EFF's IP law primer.
>    Other net articles on my Home Page
>    Up to ClariNet e.News home page


John Gear (catalyst -at- pacifier -dot- com)

The Bill of Rights -- The ORIGINAL Contract with America
Beware of Imitations.  Accept No Substitutes.  Insist on the Genuine Articles.

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