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The copyright law of the United States (Title 17, United States Code) governs the making of reproductions of copyrighted materials. A reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement.
Avoiding Copyright Infringement (http://www.law.cornell.edu/uscode/17/)
A search is probably unnecessary. Unlike both patents and trademarks, that a similar work was independently created is a complete defense to copyright infringement. Therefore, records showing independent creation are helpful in avoiding liability. Yet, it may be difficult where the original work was widely disseminated (or otherwise available to an alleged infringer) to convince a court of independent origin. In one such case, the court held that, while copying may have been unconscious, the original was nevertheless infringed. Further, copyrights are unlike patents in that the term -- the lifetime of the author plus 50 years in the case of identifiable, living authors -- is much longer. They also arise automatically and are very inexpensive to register ($20.00).
Subject to some fairly basic limits, a copyright provides its owner with the exclusive rights, for example, to reproduce the work during its term. One of the limits is that ideas (as contrasted with expressions) and technology (computer software aside) are generally not protected by copyright. However, plagiarism is different. In academic settings at least, palming off someone else's ideas as your own can also result in serious penalties. I tell my students that infringement is a tort and plagiarism is a sin, but that's not quite accurate because it also encompasses copying that would amount to copyright infringement.
Thus, again as far as copyright is concerned, our inventor would have been free to use any information she could find in books on mousetrap design and to make and sell working copies of anything shown or described. Copyright would give its owner the right to prevent only reproduction of the text or drawings themselves.
Still, what if the mousetrap inventor wanted to use part of someone else's text, for example, in an advertisement? For one thing, she cannot assume that lack of copyright notice means that something is in the public domain (can be copied). Copyright law no longer requires that notice (such as the one at the bottom of this page) be given. While there is a remote possibility that limited use of another's expression might be protected under the so-called "fair use" defense, it would be unwise to proceed without permission or expert advice -- particularly where the use is commercial.
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Introduction (http://www.fplc.edu/tfield/copyNet.htm#TOC)
As pointed out in a couple of other online discussions at this site, e.g., Copyright in Computer Software, copyright encourages the creative efforts of authors, artists and others by securing the exclusive right to reproduce works and derive income from them.
Copyright arises automatically as soon as some aspect of a protectable work has been fixed in a tangible medium (such as an internet server). Notice is not required; registration is required only if legal action is warranted and the work originates in the U.S. (Apologies to those abroad, but this is hereafter presumed.) However, giving notice (such as at the bottom of this page) and promptly registering works provide legal advantages. Those advantages are explained below, along with basic limits to copyright protection.
This discussion focuses on copyright issues most apt to concern those who post to or own email lists or those who have put up web pages -- as well as to those who might want to use another's email posting or to copy material from another web page.
Several matters such as the fundamental distinction between works that are and are not "for hire," deposit
details and issues to consider in transferring copyright interests are not particularly relevant to that focus and are not revisited here. However, anyone in the business of putting web pages up for others definitely needs to address such matters. Again, see Copyright in Computer Software or the more general discussion, Copyright Basics, at the Copyright Office.
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Limits to Copyright
Copyright is the right to exclude, not to publish.
Copyright does not give its owners the right to sell or distribute works. Consider, for example, a libelous email message or web page. While both would be protected by copyright, this is of little importance if their posting would incur liability. Also, of course, rights to post information can be affected by laws governing, e.g., obscenity, or rights of privacy or publicity.
Basic limits to copyright protection.
There are several fundamental limits to copyright protection. For example, expression, not facts or ideas, is protected. Also, a second work that merely happens to be very similar (or even identical) to an earlier work does not infringe, if it is, in fact, independently created. However, because these topics are treated elsewhere, they are not pursued here.
Fair use and implied licenses.
Fair use is a legal license to use others' work, whether they approve or not. It constitutes one of the most important, and least clear cut, limits to copyright. The basic problem is that words like "fair" or "reasonable" cannot be defined with the precision non-lawyers (or many law students) would like. Until 20 years ago, fair use did not appear in U.S. legislation, but it now occupies about half of the copyright statute. In the U.S., partial or limited reproduction of another's work may be permitted under this doctrine.
On the one hand, fair use offers an especially liberal defense to uses that advance public interests such as education or scholarship. On the other hand, it is unlikely to be available if one fails to credit the original artist or author. It is not apt to be available to those who profit or interfere with original artists' or authors' ability to derive income from their works.
Commercial uses of another's work are particularly frowned upon. But what does this mean? On one end of the scale, for example, anyone who posts an email message in such a way as to suggest that its author endorses some commercial product, without explicit permission, is asking for serious trouble! On the other, lunch is rarely free. Most magazines, newspapers and even many professional journals are operated by for-profit entities. That the latter kind of commercialism does not negate fair use defenses has been made clear by the U.S. Supreme Court.
Licenses may also be implied in fact (as when someone posts a message to a public email list). Both forwarding and archiving email messages seem to be impliedly allowed -- possibly subject to an author's right to revoke implied permission when reasonable. People (including myself) regularly post messages that they wish they had not sent. Is it reasonable to ask someone who automatically archives list content to find and delete messages sent inadvertently? In my opinion, it would often not be. Authors should be careful in what they send; under the best of circumstances, it will be difficult to eradicate inadvertent postings.
Few who post to email lists would object if their messages are forwarded to others who might be interested. However, in doing so, or in using part of a prior message in responding to an earlier message, one should be careful not to change the original author's meaning. No one impliedly authorizes another to attribute to them an embarrassing (or worse) message they did not write!
Likewise, few would object to having their messages archived, perhaps on a web page. Archiving clearly serves the interests of list members who may occasionally want to revisit topics addressed earlier. Indeed, most would prefer having archives to seeing old topics rehashed again and again -- the reason one often sees lists of frequently asked questions (FAQs).
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Expressed Licenses -- Put it on the table!
Most copyright problems I have encountered could be avoided if list owners would broadcast, at least on initial subscription, a notice such as the one below. [List owners who care to use it are hereby granted permission but should not regard it as legal advice. I certainly do not suggest it as a fool-proof way to avoid copyright (much less any other) problems.]
Those who post to this list retain their copyright. However, subscribers grant a non-exclusive license to the list owner, directly or indirectly, to archive, and to other subscribers to forward, any message posted here.
**All archiving of messages posted to this list is forbidden without express permission of their authors or the list owner!** No site that conditions access on payment of a fee will be approved by the list owner as an archive.
No subscriber, by merely posting to this list, grants implied permission to associate his or her message directly with any commercial product or service. Nevertheless, subscribers should bear in mind that virtually anyone will have access to their messages. If there is *anyone* you would not want to see some message, do not post it here!
I recently encountered a site that confidently asserts that list owners have the right to approve the forwarding of email from one list to another. Barring such a provision in a welcome message (note that none appears in the example set out above), I am unaware of any legal basis for it. Perhaps it is a netiquette rule I have not previously encountered, but those are not ordinarily enforced in the courts.
To avoid some copyright questions, one web author posts this amusing notice:
WARNING: I reserve the right to use any email you send to me as either a testimonial of how great this page is, or as an (rare) example of the stupid things people send to me via email. If you do not want your email to be used in such a manner, mark it confidential....
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Special situations
Email lists are exceedingly diverse. For an extreme example, consider a prostate cancer listserv. Here are excerpts from the welcome message:
Now that you have subscribed, you are encouraged to send a note introducing yourself.... If your concern is about a prostate cancer diagnosis, also include your PSA blood test result, Gleason score, and cancer stage.
All messages to the list are archived. If you have deleted or missed messages these can be found by accessing the archives with this message.... [It goes on to list several archives.]
Each subscriber to that list (as well as to a host of similar ones) should weigh his individual risks as well as the substantial benefits to himself and others of having personal medical information made public and archived. Authors who post to such lists should consider the ramifications of doing so. Copyright provides limited ability to control the access of others to what one has published. Thus, for example, employees' adverse medical information could possibly end up in the hands of employers who would find an incentive to discharge them for spurious reasons. When potential misuse of information poses a serious threat, email users should keep messages private. Licenses to forward or archive private messages will rarely be implied.
Private lists. The possibility of "private" lists also exists -- in the sense that all who sign up expressly agree, e.g., not to forward list messages or to delete the identity of authors before doing so. Also, if list messages are archived at all, access could be limited, e.g., by use of passwords -- or they could be archived anonymously. Such an approach should be able to avoid even "fair use" of messages.
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Notice and Registration
As mentioned above, web pages and email messages are protected by copyright as soon as they are created. Copyright notice and registration are not required -- although the last is needed prior to bringing suit. For example, contrary to what some seem to believe, and consistent with the sample email list notice above, even public messages cannot be used by anyone else as they please.
In the U.S., copyright notice eliminates the potential defense of innocent infringement and increases the chances that willful infringement will be found. The latter is far more serious because statutory damages for willful infringement are much larger -- up to $100,000, compared to $200! Thus, if copyright is a major concern, those who post email messages or serve up web pages should give explicit notice.
More significantly, statutory damages and attorney fees can be obtained only if works are promptly registered after publication -- publication presumably occurs when a message is posted to a public list or a web page is made available to anyone who cares to visit. Although the statute is not a paragon of clarity on this point, it appears that if registration is sought within three months of publication, statutory damages and attorney fees, as well as more common remedies, are available for prior infringement. While it takes several months for a certificate of registration to issue, once that happens (if the initial application was complete), the filing date becomes the registration date.
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Whether to Register
Prolific email users or web publishers would find registration prohibitively expensive if every individual item had to be registered, even at $20 each -- particularly if their efforts generate no income. Since one can apparently register at any time within three months of publication and still have the additional remedies that make suit affordable, immediate registration might not appear, on balance, to be "worth it."
Still, one should keep in mind that multiple works can sometimes be registered as a collection. Although I have not researched this exact point, it would seem, at least by analogy to other types of works, that all of an individual author's email messages (to at least one list and possibly more) within three months (or even a year) could be registered for a single fee. Likewise, the entire integrated contents of a web site should no more require multiple fees than a book that might have many chapters and numerous illustrations.
When registration is straight-forward, bulk registration would appear to be a good buy. Simple forms, containing basic instructions, are available from the Copyright Office as well as, e.g.,the BMI web site. To register, send the proper form (TX for most works, but see form GR/CP too) with the $20 fee. (http://lcweb.loc.gov/copyright/forms.html)
It is also necessary to send materials that identify the work. Email should be very straight forward, but even ordinary web pages could present a minor problem. Should one send a printout of the page or the code that generates it? If the content is all that is important, I would send only screen printouts. If the code were also important, I would register it like software; see, e.g., § 202.20 of Title 37 of the Code of Federal Regulations. One problem with treating the content of a large web site like software is: What constitutes the first and last 25 pages of code?!
If a web site is particularly ornate with, e.g., embedded java scripts, sounds and video, as well as text and graphics, problems are compounded. A web author could give it his or her best shot and see what happens -- subject to the risk of being unable to rely on the original filing date. If that risk seems serious, a web author's only alternative is to try to find a lawyer experienced in such matters.
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Avoiding Suit
Subject to limitations briefly discussed above, copyright gives its owners the exclusive right to reproduce and otherwise reap, e.g., the goodwill or economic benefits of their work. Sometimes a question arises as to whether a second, similar work was copied or was independently created. If the person creating the second work had access to the original, and the works are very similar, copying is likely to be presumed.
Unless liability is exempted by fair use or an express or implied license, use of another's copyrighted work arms its owner with remedies going well beyond those normally afforded to an injured party. Further, while finding infringement of graphics works can be difficult, those who copy text may be easily found with any of several powerful net search engines.
Web artists have asked if it is OK to base a graphic on another's work. The safe answer is "No!" The real question is not whether one is liable but whether one is likely to be sued. Those who use a relatively small amount of another's work -- if it is not copied in detail or is altered to the point that it cannot be recognized -- are not apt to be. Yet, this is a litigious society, and it is much smarter to work from scratch (or, for example, to use clip art sold for that purpose)!
In no event, echoing what has already been cautioned, should anyone use another's text or graphics for commercial purposes without express permission! Any use that generates income directly or interferes with a copyright holder's potential income dramatically increases the chance of suit. Such use is also more apt to be regarded as willful -- again, increasing potential statutory damages from $200 to as much as $100,000!
As some web authors have failed to appreciate (as one can see from all the pages that say "X used to be here, but..."), using another's copyrighted graphics (particularly commercial cartoons) are almost sure to generate nasty threats, even when linked to the copyright owner.
Finally, of course, copyright is hardly the sole basis for suit. Linking to others' web sites is unlikely to cause copyright problems under present law, but see the interesting discussion of image links at the Oppedahl & Larson page mentioned at the top of this page. See also the Dilbert Hack Page Archives. In any case, links to unaffiliated sites should clearly so indicate to avoid any misrepresentation of authorship or endorsement, for example. Similarly, one must exercise great caution in referring (or linking) to others (or their products or services) in a derogatory way.
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Copyright in the New World of Electronic Publishing (http://www.press.umich.edu/jep/works/strong.copyright.html)
William S. Strong
Kotin, Crabtree, and Strong
Attorneys at Law
One Bowdoin Square
Boston, MA 02114
617-227-7031
Presented at the workshop Electronic Publishing Issues II at the Association of American University Presses (AAUP) Annual Meeting, June 17, 1994, Washington, D.C.
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