Feature - About the Net
(September 13, 1998)
Is the Internet a lawless place where "anything goes?" It can seem like that sometimes; there are areas where the law is still being defined, and the world-wide reach of the Net, the anonymity of "screen names," and the sheer volume of traffic make it easy for some people to get away with behavior that would land them in court in "real life."
But normal rules of law do indeed apply to much of the Internet. In this series, we'll look at law on the Internet, how it's being extended by legislation and the courts, and what it means to you.
Are You Violating Copyrights?
Does your website have a MIDI of your favorite song? How about a background graphic copied from another website? A picture of your favorite film or TV star? Shots from Titanic or a picture of Winnie the Pooh?
Chances are that you're violating someone's copyrights. And although many people believe that "if it's on the Internet, it's free for the taking," that myth could get your site taken off the Web and cost you a lot of work -- and maybe even some money!
What Is Copyright?
The idea behind copyright is that the person who creates an original work -- writing, art, photography, motion pictures and other audio-visual creations, computer code, even sculpture or a building design -- should have the right to control their creation and enjoy the economic benefits of it. The owner of a copyrighted work has the exclusive right:
No one else has the right to do these for a copyrighted work, unless they have been granted these rights by the owner of the copyright.
- to reproduce the copyrighted work in any medium
- to prepare derivative works based upon the copyrighted work
- to distribute copies or recordings of the copyrighted work to the public by sale, gift, rental, lease or loan
- to perform the copyrighted work publicly
- to display the copyrighted work publicly
How Does Something Become Copyrighted?
Many people believe that, if a work doesn't carry a copyright notice -- © Copyright, year, owner -- that it isn't copyrighted. That used to be the case, but it is no more.
Until the Copyright Act of 1976, published works had to carry a copyright notification following a very strict form. If they did not, the publication of the work without proper notice automatically meant it couldn't be copyrighted(with a few exceptions). It entered the "public domain" -- in other words, anyone could use it for any purpose.
Today, the advantage has swung to the creator. Works are automatically copyrighted by the creator upon their creation; no copyright notice or registration is required, although notices are a helpful way of reminding people "hands off," and registration helps you prove it, and lets you sue violators for more than "actual" damages.
Before the 1976 Act went into effect, copyrights were only good for 28 years, although they could be renewed with the US Copyright Office for another 47 years in the year in which the copyright expired. Now, the copyright period now is the life of the author plus fifty years, or seventy-five years in the case of a corporation. If the work has been created recently, it's going to be a long time before the copyright expires.
What's NOT Copyrighted?
"Hey, that's my copyrighted idea!
"I've already got a copyright on that title."
"We copyrighted this process...."
Not. Copyright does not cover ideas, methods, discoveries or inventions -- although they may be protected by patent, which has to be applied for and granted. Copyright also doesn't cover titles, advertising slogans and other short phrases, or blank forms, although some of these also may be protected by patent and/or trademark. Facts also cannot be copyrighted, although before you decide to re-publish The Book of Lists you should know that compilations and lists of facts may be covered by copyright (the list, not the facts themselves, however).
What else isn't covered by copyright? Works created by the US Government, although those created for the government by contractors may well be. State governments, on the other hand, can create copyrighted work.
But the most important resource of material that is not covered by copyright is material that used to be: works that have entered the public domain because their creators explicitly placed them there, because there was a defect in their copyright statement (pre-1978, when the 1976 Act went into effect), or because the copyrights have expired. For example, everything that was created and copyrighted prior to January 1, 1923 is in the public domain -- the 75-year copyright period (including renewal) has expired.
Do you remember the news stories about Bill Gates buying up copyrights to all kinds of old masters from museums? How could museums have copyrights on famous works by long-dead artists?
They don't -- but, if they can control the access to reproduce the work, they can copyright the reproductions. Even so, if you can find a picture of the work in an old book that's out of copyright, there's nothing they (even Bill Gates) can do to claim copyright.
"My site isn't commercial, so it's 'fair use'."
Many people believe that, if they are not making money from the copyrighted material or just used a portion of it, it's allowed as "fair use."
There are certain limited and specific situations when copyrighted material may be used under the provisions of "fair use":
- Criticism and comment
- Parody and satire
- Scholarship and research
- News reporting
Notice that these are very limited provisions. They don't include "making non-commercial use," "just making copies and giving them free to friends," or "just using a part of it."
So where do these myths of "fair use" come from? Even as limited as the fair use provisions are, they create gray areas that often have to be interpreted by the court (and you don't want that to happen to you, because it means you've been sued!). When the courts consider a fair use claim, they look at these four factors, as defined by Section 107 of the Act:
The courts look at all four of these, not just at one, and considers (2) and especially (4) as most important. For example, if the "nature" of the work is that it has not yet been published (i.e. publicly), it's unlikely to be allowed. One of the most important rights of the copyright owner is to determine how and where (and if) their work will be published.
If the market for the copyrighted work is damaged by the use, it is especially likely to be held as infringement, not fair use. For example, if you make copies of copyrighted music and give it away to your friends, it's not fair use, even though you're not charging for it, because you're taking away potential sales of the music by its owner.
Parody and satire are protected "fair uses," but you must be parodying the work itself, not just using it to parody something else. For example, if you copy a published political cartoon and change the caption to poke your own fun, you're on very dangerous ground unless the obvious target of your satire is that particular cartoon. In fact, even though parody is an allowed use, it's still likely to get you sued; the targets of the parody rarely appreciate it and, if they've got the money to cause you trouble over it in court, they often will.
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
If Everything Is Copyrighted, How Do You Get Materials to Use?
There are three ways to get materials that you can use for your own content or publication:
Get permission: When someone gives you permission to use their material, they are giving you a license (a permission with conditions, not a piece of paper). For example, many artists on the Net create graphics that they'll allow you to use if you give them credit and put a link back to their site. This isn't just a courtesy -- it's their licensing requirement for allowing you to use it. If you do as they ask, it's OK; if you don't, you're violating their copyright.
Materials in the Public Domain. Public domain not only includes old materials on which copyright has expired, but also work that has been created and made available for people to use without restriction. A lot of the icons and GIFs in archives on the Net fall into this category -- the artist who created them has simply posted them up for everyone to use and isn't attempting to claim any ownership.
But be careful -- just because it's in an archive doesn't mean that the creator has given permission for it to be there. For example, you'll find Disney characters in image archives, but if you use them in your website, you may be contacted by the "Mouse Police" (Disney's legal department). There is no Disney art in the public domain (although the copyrights on the original "Steamboat Willie" will expire soon), and Disney is especially aggressive about pursuing infringers.
Create it yourself, or have someone create it for you. If your work is original, then you own the copyright. If you have an employee create it for you, typically the copyright also belongs to you. If you hire someone to make it for you, make sure that they are giving you all rights in your agreement with them, or just use it within the rights that they grant you.
- Get the permission of the copyright owner.
- Use materials already in the public domain.
- Create it yourself, or hire someone to create it for you.
If Someone Claims You're Violating Their Copyrights...
First, is it something that can be copyrighted? Remember that copyrights don't apply to ideas, but only to expressions of those ideas in that have been created a fixed form. A specific chat links page, for example, may be copyrighted, but the idea of creating a chat links page is not.
Second, did you copy their work, or were you "inspired" by it? If you have never seen or heard it, you cannot have copied it. But if you go to court, you may have to prove that you weren't familiar with the work, and it can be very hard to prove a negative, especially if the work has been widely published. George Harrison's My Sweet Lord was held to infringe on the copyrights for He's So Fine. If Harrison had been able to make a credible defense that he'd never heard the piece, the case might have gone the other way.
If you did copy the work, even if you didn't get it directly from their site, the best thing to do is to say "I'm sorry" and ask permission to use it. Often, that's all it takes to get permission. But if they say no, stop using it. You can be in much more trouble for knowingly violating someone's copyright than you can for an innocent mistake, and if they've told you no, you know.
We've mostly looked at an overview of what the Copyright Act covers. Next time, we'll look at some specific situations -- uses that happen all over the Net and that you yourself may be doing -- to see how the Copyright Law applies to them and how the courts have interpreted the law.
Links for More Information
There is a lot of misinformation on the Net about copyright, so be careful. Here are some links to good and accurate explanations:
The Copyright FAQ. One of the Web's oft-quoted references on copyright.
The Copyright Website. Lots of good explanatory articles in plain English explaining the various details of copyright law.
The Publishing Law Center. A useful and information-filled showcase for a law firm that specializes in trademark and copyright issues.
U.S. Copyright Office contains the actual law as well as basics, application forms, and information on searching copyright records.
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