Wiki HOW on Understanding Copyright

Posted by Wkiraly at 7/2/2008 12:02 PM
I (Bill Kiraly) found this on Wikihow and thought it relevant to our group:

How to Understand Copyright Basics

from wikiHow – The How to Manual That You Can Edit
Have you ever uploaded an image or a video to a website, only for it to be deleted because of copyright issues? While some areas of copyright law can be complicated enough to cause copyright lawyers sleepless nights, the basics are very simple. Armed with some simple principles, you can save yourself from running afoul of copyright law.

Steps

  1. Understand the scope of copyright law. It does protect literary works, paintings, photographs, drawings, films, music (and its lyrics), choreography, sculptures and many other things. It generally doesn’t protect the underlying ideas, and it does not protect facts. For example, copyright doesn’t prevent you from expressing in your own words ideas and facts found in a book or journal you read (but if you do so without attribution to the original author you may be guilty of plagiarism).
  2. Understand that nearly everything on the Internet, and everywhere else, is copyrighted, by default. “I found it on the Internet” is not a defense against copyright infringement; works on the Internet are as copyrightable as any other kind of work. Nor is “it didn’t say it was copyrighted”. In nearly all jurisdictions (including the United States, and all other Berne Convention signatories), it is not necessary for a work to have an explicit copyright notice for it to be copyrighted.[1] It is also not necessary for copyright in a work to be registered; this simply makes it easier to be compensated in court. Without an explicit dedication to the public domain, assume that it is still under copyright.There is a quirk in the United States’ implementation of the Berne Convention: works first published before 1978 without a copyright notice may be public domain in the United States.[2]
  3. Understand the difference between copyrights, trademarks, and other forms of “intellectual property.” The term “intellectual property” itself, and the kind of thinking it encourages, has led to these very different things being confused with each other.[3] Trademarks, for example, forbid using certain words, marks, symbols, and so on within certain contexts, to protect consumers from misrepresentation. Copyright would not prevent you from, for example, writing some new text editor software and calling it “Microsoft Text Editor”, but trademark law would.
  4. Understand that one does not get a copyright without some creativity. If ever you wonder whether a certain action would infringe on the copyright of someone else, the question to ask is: is this a creative work on my count, or am I simply drawing from the creativity of someone else? Lunches, as any economist would tell you, are not free. Some examples:
    • Scanning something yourself does not, by itself, give you a new copyright over anything. You cannot scan a photograph from, say, a magazine and then put it on the Internet; the copyright would still reside with the author of the work. The flip-side of this is that scanning a work which is in the public domain would not, in many jurisdictions, give you the copyright over the resulting scan.
    • Taking a screenshot of a video or a computer program does not generate a new copyright. This would be a derivative work of the video or computer program.
    • Some non-creative things are not copyrightable, for example, a plain text logo in a generic font. Neither are simple geometric shapes. But don’t rely on this unless you are certain.
  5. Learn about the public domain laws for your jurisdiction. “Public domain” is short-hand for “uncopyrighted”, not “publicly distributed”. A work can be out of copyright due to age, by the nature of authorship, or other reasons. In the United States, all works authored by a federal government (not state government!) employee during the course of their official duties are public domain, as are all works published before 1923. Works first created in the European Union will usually be copyrighted until 70 years after the death of the author.
  6. Understand what “fair use” is, and what it isn’t. Called “fair dealing” in many jurisdictions, fair use is simply a guarantee that copyright laws do not infringe freedom of speech and make critical commentary impossible. It permits, for example, limited quoting of copyrighted material. In some jurisdictions, it would allow creating a copy for personal use (such as a backup). It is not a blank cheque granting you a right to do anything at all and call it “fair use”. Fair use is an extremely complex body of case law; it is often very difficult for non-lawyers to tell in advance whether or not a certain use will be considered fair use in court. If in doubt, seek permission first.[4]
  7. Understand the law about derivative works as pertains to fiction. It was said above that “ideas cannot be copyrighted”. This is not entirely true; fictional characters,[5] story-lines, and settings[6] can be copyrighted. This means that fan-fiction, drawings of characters from copyrighted works, and so on are all technically copyright infringements. Sometimes copyright holders turn a blind eye to this sort of thing, but unless it has been explicitly authorised, don’t count on this being the case.

Tips

  • Follow the spirit of the law, rather than the letter. Not only is this good form, it works in your favour: chances are slim that any “loophole” you find is not something that hasn’t been done to death in the courts already. If it has not, chances are much better that a court would rule against you.
  • The Wikimedia Commons maintain an extensive summary of public domain legislation from all over the world.

Related wikiHows

Sources and Citations

  1. Stim 2005, p. 257. “[T]he Berne Convention […] specifies that no formalities—such as copyright notice—are necessary for gaining [copyright] protection.”
  2. Scott §2.42[E]. “A work published prior to January 1, 1978 […] without the prescribed copyright notice or with a defective notice was injected into the public domain, and the author lost all copyright protection.”
  3. As Richard Stallman says, “Non-lawyers who hear one term applied to these various laws tend to assume they are based on a common principle, and function similarly. Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.”
  4. Hoffman, Fair Use: Further issues. “Fair use is at best an “iffy” defense and there is virtually no way that anyone can say, in advance, whether the defense will be successful. Thus, in any instance, the best and most advisable course of action is to license materials.”
  5. Stim 2007, p. 205.
  6. To quote Chilling Effects, “What if these worlds were elaborately filled with details? […] [N]ormal plots like boy-meets-girl cannot be copyrighted […] but the more detailed the plot is, the more it becomes protectible expression.”

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