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The Rules for Guys
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. Feel free to link to this document,
no need to ask me. Really, NO need to ask.
- 1) "If it doesn't have a copyright notice, it's not
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 legally needed most places. In some countries it may help
preserve some of the "moral rights."
- 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 main difference under the law. It's still a
violation if you give it away -- and there can still be
serious damages if you hurt the commercial value of the
property. There is an exception for personal copying of music, which
is not a violation, though courts seem to have said that
doesn't include widescale anonymous personal copying as Napster.
If the work has no commercial value, the violation is mostly technical
and is unlikely to result in legal action. Fair use determinations (see
below) do sometimes depend on the involvement of money.
- 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 (U.S.) 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 register at the New York Times web site?
The first is probably fair use, the others probably aren't.
Fair use is usually 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 a problem.)
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.
The "fair use" concept varies from country to country, and has different
names (such as "fair dealing" in Canada) and other limitations outside the
Facts and ideas can't be copyrighted, but their expression and structure
can. You can always write the facts in your own words.
See the DMCA alert for recent changes in the law.
- 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
steal 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." :-) You can use marks to critcise or parody the
holder, as long as it's clear you aren't the holder.
- 6) "If I make up my own stories, but base them on another work,
my new work belongs to me."
False. U.S. 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 arguably 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 a major exception -- criticism and 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 copy, but that your copying was a fair use. A
subjective judgment on, among other things, your goals, is then made.
However, it's also worth noting that a court has never ruled on this
issue, because fan fiction cases always get settled quickly when the
defendant is a fan of limited means sued by a powerful publishing
company. Some argue that completely non-commercial fan fiction might
be declared a fair use if courts get to decide.
You can read more
- 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. In one case an operator of
a pirate BBS that didn't charge was acquited because he didn't
charge, but congress amended the law to cover that.
- 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.
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
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.
Copyright law was recently amended by the
Digital Millennium Copyright Act which changed net copyright
in many ways. In particular, it put all sorts of legal strength behind
copy-protection systems, making programs illegal and reducing the reality
of fair use rights.
The DMCA also changed the liability outlook for ISPs in major ways,
many of them quite troublesome.
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.
Permission is granted to freely print, unmodified,
up to 100 copies of the most up to date version of this document
http://www.templetons.com/brad/copymyths.html, or to
copy it in off-the-net electronic form.
On the net/WWW, however, you must link here
rather than put up your own page. 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. Please don't
send mail asking me if you can link here -- you can do so,
without asking or telling me. The only people I prefer not link
here are those who mail me asking for permission to link.
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.
By the way, did I mention: do not e-mail me for legal advice?
Also note that while many of these principles are universal
in Berne copyright signatory nations, some are derived from
U.S. law, and in some cases Canadian 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.
Terry Carroll's copyright FAQ is currently offline
but here is
an old one,
covering other issues including
compilation copyright and more intricacies of fair use is
available in the same places you found this note.
U.S. Library of Congress copyright site.
Australians try this.
This site has Canadian Copyright
Another useful document is the
EFF's IP law primer.
I should also mention sorry, but please do not e-mail me your