Copyright: Part 4 – Protecting Your Copyright

Now that we’ve covered the basics of copyright and fair use, let’s talk about what you can do to protect your copyright and defend your rights if your copyright is infringed.

Note that I have never had copyright infringed, so I am not writing from personal experience. I hope you never have to use this advice, but if you are in the position of having your rights violated, I hope these suggestions from others who have been victimized will be helpful.

• To reduce the risks of having your content stolen, be proactive. Although the copyright symbol is not required, you may want to use it on your Web site, blog, individual posts, and feeds. The notice won’t stop determined content thieves, but it may stop unauthorized use of your content by people who don’t realize that just because it’s on the Internet doesn’t mean it’s in the public domain.
• Be prepared to prove that you are the original author of the work. Since blog posts can be back-dated, the post date is not necessarily proof of when the post was written. Even the dates of comments can be changed, so the dates of comments might not be sufficient evidence in court, either. However, your database file should have the actual date the post was made. If you create posts in your word processor rather than directly in your blog platform, the file on your hard drive will have the date it was created as well as the last date it was modified. For books and other longer works, you may want to mail a hardcopy of the manuscript to yourself. Have the clerk at the Post Office wrap the package in date-stamped tape and don’t open the package until you have to present it in court.
• Monitor your content by searching or using Google Alerts for your articles. Jeanne Dininni found the unauthorized use of her work because she set up a Google alert for a unique phrase in an article. Don’t expect to find your article by searching for the title as the unauthorized user has probably changed the title. You can also use Copyscape to search for duplicate content.
• As soon as you discover that your work has been used without permission, contact the copyright infringer. You may want to start out assuming the infringement was out of ignorance. Describe the work that was used without authorization and explain when and where you originally posted it. Explain what you want the user to do: remove the material immediately, ask for permission, pay for the rights to use the content. Mike Goad describes what he did when he discovered his article – on copyright, no less! – had been used without permission and the successful result.
• Even if you have no objection to a specific use, contacting the user every time there is a copyright infringement helps establish that you are taking steps to protect your copyright. If you end up in court suing someone for copyright infringement, being able to demonstrate that you have not allowed others to use your content without permission will be to your advantage.  
• If the user does not respond to your request and a follow-up message, contact their Web site host. The terms of service of most Web hosting companies allow them to shut down Web site that infringe the copyrights of others. Of course, sometimes, the burden of proof they put on the copyright owner makes the protection they offer more theoretical than practical, but it is a tool to use.

If these steps do not get results, you may decide to pursue legal action, which is beyond the scope of this series. This guide is designed to cover the basics of copyright and give you some ideas to protect your copyright.

More detailed information, including legal remedies, can be found in the following articles and sites:
Articles about Copyright by Mike Goad
Copyright Articles at Research Copyright
Digital Millenium Copyright Act at Google
Do It Yourself Copyright Protection Online by Robert Niles
Internet Copyright Law:  A Rat Pilfered My Web Site Cheese – What Do I Do?by Richard Keyt
Plagiarism Today - site dedicated to content theft, copyright infringement, and plagiarism
Six Steps to Prevent Content Theft and Combat Copyright Infringement by John-Paul
What to Do When Someone Steals Your Content by Lorelle Fossen

Copyright: Part 3 – Fair Use

Recently, a college professor friend called to ask my advice. One of her students created a PowerPoint presentation for a class project. She wrote the text and used artwork she copied from a Web site to illustrate her presentation. My friend asked if I thought that use of the artwork fell within “fair use” since the student was using the art for a class project and not selling it or even making it publicly available. Absolutely not!

One of biggest misconceptions about copyright may be the idea that copyrighted works can be used if the user doesn’t recognize monetary gain from the use. Copyright gives the author complete control of how the work is used, whether or not the user realizes any value from the use. A blogger who copies a post from another blog and gives the author credit is still infringing copyright because the author no longer has complete control of the work. A student who copies artwork to use as illustrations in a class project is still infringing even if no one but the student and the professor see the project.

The Copyright Office offers a fact sheet on fair use. Criticism, news reporting, research, and teaching are among acceptable uses. However, whether a specific use of copyrighted material is fair use or infringement depends on several factors, including 1) the purpose of the use, 2) the nature of the copyrighted work, 3) the amount of material used in relation to the total work, and 4) the effect of the use on the potential market or value of the work.

There is no standard for fair use. Some institutions and organizations have internal policies, such as ten percent of a copyrighted work can be used for academic purposes. However, those criteria are arbitrary and may not hold up in court. Ten percent of one work may have little effect on the value of the total work, but ten percent of another may have a significant adverse effect on the market.

The best policy is to ask permission of the copyright holder if there is any doubt that the use is fair use. The author has the complete control over the work and can choose how much or how little to allow to be quoted. Authors can transfer copyright or grant exclusive or non-exclusive rights for any amount of time, for a fee or for free. The author might grant the exclusive right to one publication to publish the work first, then grant to other publications non-exclusive rights to publish the same piece after the first rights period ends.

Most bloggers believe it is fair use to post a brief excerpt with a link to the full article on the author’s blog or Web site fair use. However, the law does not state this. The law states that the four factors listed above be considered to determine whether the use is fair use under the copyright law.

Let’s compare two hpothetical cases of use by those criteria.

Hypothetical Case #1: A blogger posts a brief excerpt of the piece with a link to the complete post:

1. The purpose of the use is likely educational rather than commercial, even though the quote might improve traffic and income. 
2. The copyrighted work (a blog post) is intended to be read online by the public, and a link from another blog would likely increase the number of people who read the article. If the author earns income from advertising or product sales, the opportunity for that income is still there.
3. The excerpt is a small portion of the total work.
4. The use isn’t likely to damage the potential market for the work. In fact, linking to the post could possibly make the work more profitable if the author earns income from advertising.

Hypothetical Case #2: A blogger publishes the complete post, giving the author credit and linking to the author’s blog:

1. The line blurs between educational and commercial use. The material does educate readers, but the blogger posting another writer’s work is likely receiving commercial benefit from advertising.
2. The copyrighted work (a blog post) is intended to be read online by the public, and publishing the material for another audience would likely increase the number of people who read the article. However, if the author earns income from advertising or product sales, the opportunity for that income is lost.
3. The post is the entire work.
4. The use will reduce the value of the work because the author loses the opportunity to earn income from readers.

This is my personal analysis of the two cases. Since the law is unclear, fair use or infringement can be determined only in court. Asking permission prevents any future problems.

Writers will often freely give permission to quote part of an article and link to the complete work, and they may give permission to publish the entire article on another site or in another publication. However, the right to grant or not grant permission belongs to the author and no one else.

What do you think constitutes fair use of a blog post or article? What about books and other long works? Share your thoughts in comments, and be sure to read other comments to carry on the conversation.

Copyright: Part 2 – US Copyright Law

Copyright law varies around the world. Since I live in the US and am not familiar with copyright laws in other countries, this post will cover the basics of US copyright law. I’m a writer, not a lawyer, so don’t rely on anything I say if you have a legal issue over copyright.

My goal is just to give a brief overview of how copyright works for materials written and published in the US today. Work written before January 1, 1978 come under an earlier version of the copyright law, which is quite different.

For more information, visit the US Copyright Office online.

1. literary works
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
8. architectural works 

You cannot copyright titles, slogans, logos, standard information such as calendars or height and weight charts, ideas, methods, or discoveries. You can copyright descriptions or explanations of methods and other items that cannot themselves be copyrighted. Some items that cannot be copyrighted (such as logos) can be trademarked.

According to the Copyright Office, “Copyright is secured automatically when the work is created, and a work is ‘created’ when it is fixed in a copy or phonorecord for the first time.” If you write a poem on a napkin, you have created the work, and it is automatically covered by copyright. You do not have to put the copyright symbol on it. You do not have register it. You do not have to write “copyright” on it.

Of course, if anyone challenges your copyright, you must be able to prove that you created the work. That’s why many writers mail a copy of their manuscript to themselves sealed and date-stamped by the Post Office. The writers keep the unopened package to use as evidence in case their copyright is ever challenged.

Registering a publication with the Copyright Office makes it easier to defend copyright since the registration itself is a public record of the copyright claim and is evidence in your favor if you are ever involved in an infringement lawsuit. Registration is voluntary unless you sue for infringement. You  must register before suing, and the amount of damages you can receive in a court case is greater if you register copyright within three months of publication. Copyright registration makes sense for books and other works that have a large income potential. It isn’t feasible for blog posts and short articles because of the time and expense involved.

“Mandatory deposit” is a stipulation of the copyright law that two copies of all “publications” be deposited with the Copyright Office for the Library of Congress, whether or not the copyright is registered. There are a number of exemptions, but essentially “publications” are works offered for sale to the general public. If you publish an e-book for sale, you are required to provide two copies for the Library of Congress. If you publish an e-book to give away on your Web site, you are not subject to mandatory deposit.

Copyright gives the authors of “original works of authorship” the right to control how their work is used. The author is the person who created the work unless it was work for hire. If the work was written for hire, the employer is considered to be the author and copyright owner.

Copyright extends for the life of the author plus 70 years. Work-for-hire copyright lasts 95 years from creation or 120 years from publication, whichever is shorter.

Next, we’ll talk about what constitutes “fair use” of copyrighted material.

Copyright: Part 1 – Just Because It’s Online Doesn’t Mean It’s in the Public Domain

A post by Jeanne Dininni at Writer’s Notes got me thinking about copyright. She had her work posted on a Web site without permission though the site owner gave her credit and a link to her site. Another piece was actually plagiarized. Be sure to read the ongoing conversation in comments as well as Jeanne’s post.

Jeanne differentiates between the unauthorized use and the plagiarism, and I agree they are different. Plagiarism is deliberate theft; unauthorized posting of work with credit and a link is most likely the result of ignorance.

I’ve never had the experience of having my work stolen. As common as unauthorized use of content is, the only reason I can think of that I’ve been spared is because no one has found my work worth copying.

Joking aside, unauthorized use of content is a serious problem – and not just online. Most people are ignorant about copyright. Here are just a few examples from my own experience:

• Several clients have asked me to use something they found online in a document I am preparing for them. In some cases they plan to credit the source; in others, they just want to copy the material without credit. When I tell them the material is copyrighted, they respond, “No, it’s not copyrighted. It’s online.” Many people sincerely believe that if it’s online, it’s in the public domain.
• One client wanted me to include some material from another publication in a manual I was creating for her company. I explained that would be a violation of copyright. “But I wrote it,” she said. This lady is highly ethical and would never think of stealing money or property, but she just didn’t understand that she would stealing the rights of the copyright owner if she used the material she had written as work for hire.
• I even encounter this in editing my church’s newsletter. Just this week, a church member submitted two articles for publication in the newsletter. Both were copyrighted – one was a newspaper column and the other had a copyright notice on the page along with “used by permission.” I explained that the copyright to the newspaper column was probably owned by the newspaper unless the author was a syndicated columnist who owned the rights. And even though the other document said “used by permission,” the permission was granted to the source where the submitter got the material, not to us. Again, this is a man who tries to live out his faith and operates at the highest standard of integrity. Yet out of ignorance, he asked me to violate two different people’s copyrights in our church newsletter.

Even if the person doesn’t know any better and thinks he is giving the writer the ultimate compliment by posting the work, writers need to be diligent and require copyright violators to remove the work. If we allow our work to be used without permission, we are contributing to the deterioration of our rights. We need to protect our work by educating people about copyright.