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copyright

10 Big Myths about copyright
explained


An attempt to answer common myths about copyright seen on
the net and cover issues related to copyright and
USENET/Internet publication.


by Brad Templeton

Note that this is an essay about copyright myths. It assumes you know at least
what copyright is -- basically the legal exclusive right of the author of a creative
work to control the copying of that work. If you didn't know that, check out my
own brief introduction to copyright for more information.


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 modern 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. It is important to
remember that when it comes to the law, computers never make copies,
only human beings make copies. Computers are given commands, not
permission. Only people can be given permission. 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 pirated, and no implied
licence or theoretical reduction of the copyright can take place.

(*) Copyrights can expire after a long time, putting something 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. That's important so
that copyright law doesn't block your freedom to express your own works
-- only the ability to express other people's. 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 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 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.

Facts and ideas can't be copyrighted, but their expression and structure can.
You can always write the facts in your own words.

5) "If you don't defend your copyright you lose it." -- "Somebody has that
name copyrighted!"
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.

You 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. This is not a loophole; you can't just take
a non-parody and claim it is one on a technicality. The way "fair use"
works is you get sued for copyright infringement, and you admit you did
infringe, but that your infringement was a fair use. A subjective judgment is
then made.

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 be 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. 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 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 honour.

11)"So I can't ever reproduce anything?"
Myth #11 (I didn't want to change the now-famous title of this article) is
actually one sometimes generated in response to this list of 10 myths. No,
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 -- and
unpromoted. 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. The author in this case can sue for an injunction against the
publication, actual damages from a violation, and possibly court costs.
Actual damages means actual money potentially lost by the author due to
publication, plus any money gained by the defendant. But if a work has no
commercial value, such as a typical E-mail message or conversational
USENET posting, the actual damages will be zero. Only the most
vindictive (and rich) author would sue when no damages are possible, and
the courts don't look kindly on vindictive plaintiffs, unless the defendants
are even more vindictive.

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 addition, while more often than not people claim a "fair use" copying
incorrectly, fair use is a valid concept necessary to allow the criticism of
copyrighted works and their creators through examples. But please read
more about it before you do it.


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.

Might it be a violation just to link to a web page? That's not a myth, it's
undecided, but I have written some discussion of linking rights issues.


    
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