11 Big Myths about Copyright
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. 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 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 modern is in the public domain anymore
unless the owner explicitly puts it in the “public domain”. Copyrights can
expire after a long time, putting something into the public domain, but this
does not apply to an original article posted to USENET.
Note that granting something to the public domain is a complete abandonment
of all rights, such as 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 license to supersede
an explicitly stated license 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
license or theoretical reduction of the copyright can take place.
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 criticize
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 for the New York
Times web site? 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 follow-ups 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.
5.
If you don't defend your copyright
you lose it. False. Copyright is effectively never lost
these days, unless explicitly given away. You also can't "copyright a name"
or anything short like that, such as almost all titles. You may be thinking
of trade marks, which apply to names, and can be weakened or lost if not defended.
Your generally trademark terms 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." :-)
6.
If I make up my own stories, but base
them on another work, my new work belongs to me. False.
Copyright law is quite explicit that the making of what are called “derivative
works" -- works based or derived from another copyrighted work -- is the
exclusive province of the owner of the original work. This is true even though
the making of these new works is a highly creative process. If you write a story
using settings or characters from somebody else's work, you need that author's
permission. Yes, that means almost all "fan fiction" is a copyright
violation. If you want to write a story about Jim Kirk and Mr. Spock, you need
Paramount's permission, plain and simple. Now, as it turns out, many, but not
all holders of popular copyrights turn a blind eye to "fan fiction"
or even subtly encourage it because it helps them. Make no mistake, however,
that it is entirely up to them whether to do that.
There is one major exception -- parody. The fair use provision says that if
you want to make fun of something like Star Trek, you don't need their permission
to include Mr. Spock.
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, upsetting 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
would almost surely 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 E-mail you sent them. 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 honor.
11. So
I can't ever reproduce anything? Copyright isn't an iron-clad
lock on what can be published. Indeed, by many arguments by providing reward
to authors, it encourages them to not just allow, but fund the publication and
distribution of works so that they reach far more people than they would if
they were free or unprotected. However, it must be remembered that copyright
has two main purposes, namely the protection of the author's right to obtain
commercial benefit from valuable work, and more recently the protection of the
author's general right to control how a work is used.
While copyright law makes it technically illegal to reproduce almost any new
creative work (other than under fair use) without permission, if the work is
unregistered and has no real commercial value, it gets very little protection.
If a work has no commercial value, such as a typical E-mail message or conversational
USENET posting, the actual damages will be zero.
The author's right to control what is done with a work however has some validity,
even if it has no commercial value. If you feel you need to violate a copyright
"because you can get away with it because the work has no value"
you should ask yourself why you're doing it. In general respecting the rights
of creators to control their creations is a principle many advocate adhering
to.
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. Fan
fiction and other work derived from copyrighted works is a copyright violation.
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 you got isn't,
and for almost all typical E-mail, nobody could wring any damages from you for
posting it. The law doesn't do much to protect works with no commercial value.
_______________
Permission is granted to freely copy (unmodified) this document in electronic
form, or in print if you're not selling 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. 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. Also consider the U.S. Library of Congress copyright
site.