OFF: Copyright (http://www.clarinet.com/brad/copymyths.html)

[Peter Sondergeld]

I just received today a copyright guide produced by QUT (my employer)=
.=20
Under the section on Cyberspace it listed this WWW Page as a useful s=
ite.=20
You can't see it here, but near the bottom of the page there is a lin=
k to=20
a large Copyright FAQ at=20
http://www.cis.ohio-state.edu/hypertext/faq/usenet/Copyright-FAQ/top.=
html
I hesitated before sending this because of its size, but I thought th=
at=20
not everyone may have access to WWW and it does refer to "fair use" a=
nd=20
not charging money etc which have been mentioned a few times.
Pete.


>    ClariNet * Brad Templeton Home Page * 10 Big Myths about
> copyright explained
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>                10 Big Myths about copyright explained
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> An attempt to answer common myths about copyright seen on the net
> and cover issues related to copyright and USENET posting.
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> 1) "If it doesn't have a copyright notice, it's not copyrighted."
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> This was true in the past, but today almost all major nations follo=
w
> 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.
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> 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.
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> The correct form for a notice is:
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>         "Copyright [dates] by [author/owner]"
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> You can use C in a circle =A9 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.
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> 2) "If I don't charge for it, it's not a violation."
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> 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.
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> 3) "If it's posted to Usenet it's in the public domain."
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> 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.
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> 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 al=
l
> 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 difficul=
t
> for an implicit licence to supersede an explicitly stated licence
> that the copier was aware of.
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> Note that all this assumes the poster had the right to post the ite=
m
> 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.
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> (*) 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.
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> 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.
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> 4) "My posting was just fair use!"
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> See other notes on fair use for a detailed answer, but bear the
> following in mind:
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> 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.
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> 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.)
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> 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 indidvidual 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.
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> 5) "If you don't defend your copyright you lose it."
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> False. Copyright is effectively never lost these days, unless
> explicitly given away. You may be thinking of trade marks, which ca=
n
> be weakened or lost if not defended.
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> 6) "Somebody has that name copyrighted!"
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> 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)
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> 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. Appl=
e
> 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.
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> You can't use somebody else's trademark in a way that would unfairl=
y
> 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." :-)
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> 7) "They can't get me, defendants in court have powerful rights!"
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> 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.
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> 8) "Oh, so copyright violation isn't a crime or anything?"
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> 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.
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> 9) "It doesn't hurt anybody -- in fact it's free advertising."
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> 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.
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> 10) "They e-mailed me a copy, so I can post it."
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> 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 E-mail yo=
u
> sent them. If it was an ordinary non-secret personal letter of
> minimal commercial value with no copyright notice (like 99.9% of al=
l
> E-mail), you probably won't get any damages if you sue them. Note a=
s
> well that the law aside, keeping private correspondence private is =
a
> courtesy one should usually honour.
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> -------------------------------------------------------------------=
-
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> In Summary
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>    *  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 valuabl=
e
>      social purposes. Ask yourself why you are republishing what yo=
u
>      are posting and why you couldn't have just rewritten it in you=
r
>      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 fro=
m
>      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 fact=
s
>      from E-mail you got isn't, and for almost all typical E-mail,
>      nobody could wring any damages from you for posting it.
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> -------------------------------------------------------------------=
-
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> 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 see=
n
> a notice like this on the document, you would have to assume you di=
d
> not have permission to copy it. This document is still protected by
> you-know-what even though it has no copyright notice.
> -------------------------------------------------------------------=
-
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> 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. Also consider The LoC Gopher for actual U.S. statutes.
> Australians try this. This site has Canadian Copyright Info. Anothe=
r
> useful document is the EFF's IP law primer.
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> Other net articles on my Home Page
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>    Up to ClariNet e.News home page