Get Your Copyrights, Here!

By Rob Landley for The Motley Fool.

Intellectual Property (often abbreviated here as IP) is the legal concept that certain types of ideas may be owned by individuals, corporations, or in some cases even governments. Ideas that nobody owns (the default case unless a specific law says otherwise) are in the "public domain," which means anyone can legally do whatever they like with them.

Intellectual property laws are laws that fence off portions of the public domain and give them to specific owners. The three major types of laws that create intellectual property are trademarks, patents, and copyrights. Yesterdayís column was about trademarks, which deal with names, slogans, mascots, and other ways of uniquely identifying oneself and oneís products to customers. Todayís topic is a brief and oversimplified introduction to copyright and licensing, which is the type of law that turns original creative works into intellectual property.

Copyright is "copy right," or the right to make copies of an original, creative work such as a piece of software, writing, art, music, etc. The copyright holder is the only one who has the right to make copies, and they can sue anybody who makes copies without permission for monetary damages (assuming, of course, they can prove in court that the unauthorized copying damaged them monetarily). They can also sue to have the court order those unlicensed copies to be destroyed.

The creator of a work doesnít have to apply for a copyright, or even publicly state that the work is copyrighted (although that doesnít hurt). Any copyrightable work is automatically granted a copyright, which must be sold or given away (to someone else, or into the public domain) in order to be lost. For example, each time you write an e-mail, you as the author automatically get a copyright on it. If somebody else uses your email without your permission, you technically have grounds to sue them (although in most cases it wouldnít be worthwhile). You may not know how to enforce the rights your copyright legally reserves to you, but you still have a copyright anyway.

The actual author isnít always the owner of the copyright. If somebody else hired them to create it, then it qualifies as "work for hire" and the copyright on that creation belongs to the one who commissioned and paid for it, not the one who actually designed or implemented it. This is how corporations wind up with most of their copyrights: when their employees create things as part of their jobs, the resulting copyrights belong to the corporation.

A work has to be an original creation to be copyrightable, and a certain amount of creativity is required. You canít, for example, copyright newly discovered digits of the mathematical constant Pi because there was no creativity involved. Anyone who did that would have gotten exactly the same result. But different photographs of the same landscape differ slightly depending on the photographer, and as such would be copyrightable.

Copyright deals with the expression of an idea, not the idea itself. Two singers who each record a performance of the same song would produce two different, separately copyrighted works. Neither singer would have rights to the other oneís performance, only their own, assuming of course they had the permission of the composer of the song to perform and record it in the first place. The composer of the song would have a copyright on the song itself, and performance is a form of copying. The end result is certainly a derivative work of the composerís copyrighted material, and if the lyrics were written by someone else, thatís another copyright. Members of the band could have copyrights on their performances as well, and if studio technicians mixing tracks contribute to the finished recording... It can get quite complicated.

Sometimes collaborations are works for hire, in which case the employer owns the copyright to all the various contributions to the whole work. Sometimes one person buys the copyrights from the various contributors after the fact. But the individual contributors can retain their copyrights and still allow others to use their work as long as the contributors all grant compatible licenses allowing copies of their work to be created.

Permission to make a copy of a copyrighted work is called a copyright license. Licensing is the standard way the copyright holder delegates some or all of their rights to a work to someone else. When you buy a book, or a music CD, or software, what youíre really buying is a license that allows that copy of the copyrighted work to exist. The actual copy you get is basically a courtesy detail, since with modern technology like computers and photocopiers, copies are easy to make for yourself. But without the license, you would be breaking the law by doing so.

A license is a legal agreement stating under what conditions someone other than the copyright holder can use the copyright. Without a valid license, copies of the work cannot legally exist, and licenses can have a lot of strings attached to the rights they grant. One common clause is that if the owner of the copy sues the copyright holder, the license is terminated and the copy must be destroyed. Another common clause says the license isnít valid unless the copy has been paid for. This doesnít mean the copyright holder can control what somebody does with their copy: the right to use your own property is not something the copyright license granted in the first place, therefore it is not something the license can take away. The copy can be bought and sold like any other property unless the license contains language forbidding it (such as specifically naming who the license is valid for, or declaring itself to be "non-transferable"). The license can regulate use somewhat, such as terminating after a certain date or a certain number of uses, but canít control what use the user puts it to.

The legal doctrine of "fair use" even says the owner of a copy can make more copies in certain circumstances, if thatís a normal part of using the work. Thus making a backup copy of software, copying a CD to audiotape to listen to in the car, and videotaping television programs to watch them later have all been upheld in court as examples of "fair use." (The people who got bored one afternoon and broke the DVD copy controls are defending themselves from the Motion Picture Association of Americaís lawsuits by, among other things, pointing out that the copy controls violate their fair use rights to the copies of DVDs they have purchased licenses to.)

Copyrights last for the lifetime of the workís creator, and for decades afterwards. As a consequence, in the case of a copyright owned by a corporationófor example, Microsoftís (Nasdaq: MSFT) Windowsóthat copyright remains in force for the life of the corporation. Unlike trademarks, copyrights do not have to be defended to remain in force. In the late 1980s, the copyright to the song "Happy Birthday" began being enforced by its owner, to the general annoyance of the millions of people who had been using it for decades and had assumed it was in the public domain. (This is why movies and restaurant employees and such have stopped using it. They donít want to get sued by the new owner, demanding royalties.)

Copyrights and trademarks can overlap. Mickey Mouse is a trademark owned by the Walt Disney Company (NYSE: DIS), but "Steamboat Willie" is a copyrighted original work using that trademarked character. If someone puts one of Scott Adamsí Dilbert comic strips on a T-shirt, theyíre violating both his copyright and his trademark. If they put their own original drawing of Dilbert on a T-shirt, theyíre violating his trademark. I donít know if JRR Tolkienís son used copyright, trademark law, or both as the basis for suing the British government for posthumously honoring his father by naming one of their navy ships "Shadowfax" (after Gandalfís horse). I do know that he won his lawsuit and collected a lot of money. Rather disappointing to the fans, but the court found he was within his rights to be a money-grubbing little... Ahem.

And you've all heard that Fred Astaire's widow won't allow any of his dancing to be used in tv. ads without hefty payments to her.

Thereís a lot more intricacy to copyright law than I have space to go into here. One good resource is the Usenet Copyright FAQ, which is unfortunately a bit stale but contains a lot of good information anyway. Stanfordís page on copyright and fair use is much more readable. One innovative use of copyright law against itself is the GNU General Public License from the Free Software Foundation, which has a nice plain English preamble explaining how it uses copyright law against itself, to effectively keep software in the public domain, and prevent it from being taken OUT of the public domain. (This reversal is why this license is nicknamed "copyleft".)

This column is, of course, Copyright 2000 by The Motley Fool. (I wrote it, but itís a work for hire because they paid me to do it, so they get the copyright.) For the terms of the license by which youíre viewing this thing, look at the very end of the Web page and click on the link. If you donít like the license terms, all you have to do is delete your copy of the column, thus terminating the license from your end no matter what The Foolís lawyers may try to say about it.

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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 doesnít have a copyright notice, itís 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 peopleís 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 shouldnít 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 "©" 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 donít charge for it, itís not a violation."

False. Whether you charge can affect the damages awarded in court, but thatís essentially the only difference. Itís still a violation if you give it awayóand there can still be heavy damages if you hurt the commercial value of the property.

3) "If itís posted to Usenet itís 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 writerís opinion we should all pray it isnít 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 didnít, 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 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 canít 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 couldnít find time to write your own story, or didnít 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 arenít.

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 workóin 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 doesnít damage the commercial value of the original posting (if it has any) and as such it is fair use. Fair use isnít 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 donít apply to the typical net misclaim of fair use. Itís a risky defence to attempt.

5) "If you donít 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 canít "copyright a name," or anything short like that. Titles usually donít qualify, but I doubt you could write a song entitled "Everybodyís got something to hide except for me and my monkey." (J.Lennon/P.McCartney)

You canít 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 doesnít mean complete controlósee a more detailed treatise on this law for details.

You canít use somebody elseís 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 markís 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 canít 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 donít apply the same way or at all. Itís 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 isnít 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, donít think youíre 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 doesnít hurt anybodyóin fact itís free advertising."

Itís 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. Donít rationalize whether it hurts the owner or not, ask them. Usually thatís 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 didnít 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 canít 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 peopleís 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, donít 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 wonít 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 donít 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 couldnít have just rewritten it in your own words.

* Copyright is not lost because you donít defend it; thatís a concept from trademark law. The ownership of names is also from trademark law, so donít say somebody has a name copyrighted.

* Copyright law is mostly civil law where the special rights of criminal defendants you hear so much about donít apply. Watch out, however, as new laws are moving copyright violation into the criminal realm.

* Donít rationalize that you are helping the copyright holder; often itís not that hard to ask permission.

* Posting E-mail is technically a violation, but revealing facts from E-mail you got isnít, and for almost all typical E-mail, nobody could wring any damages from you for posting it.

A more detailed copyright FAQ, covering other issues including compilation copyright and more intricacies of fair use is available online.

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