10 Big Myths about copyright explained
A Collaborative WebSite of Educational Resources
By Brad Templeton
1) "If it doesn't have a copyright notice, it's not
False: 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
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 needed.
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 essentially the only
difference. It's still a violation if you give it away -- and there can
still be heavy damages if you hurt the commercial value of the property.
3) "If it's posted to Usenet it's 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
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. 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 pirate, and no implied licence or theoretical reduction
of the copyright can take place.
(*) Copyrights can expire after a long time, putting
someting into the public domain, and there are some fine points on this
issue regarder 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!"
Exceptions. See other
notes on fair use for a detailed answer, but bear the following in mind:
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 copyrighton an indidvidual 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" 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 couldn't find time to write your own story, or didn't want your readers
to have to pay to log onto the online services with the story or buy a
copy of the paper? The former is probably fair use, the latter probably
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
work (which is another reason why reproduction of the entire work is generally
It's a risky defence to attempt.
5) "If you don't 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!"
False. You can't "copyright
a name," or anything short like that. Titles usually don't qualify -- but
I doubt you may write a song entitled "Everybody's got something to hide
except for me and my monkey." (J.Lennon/P.McCartney)
You can't 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 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 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 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." :-)
7) "They can't get me, defendants in court have powerful
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 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?"
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 than that. This is a fairly new, untested
9) "It doesn't hurt anybody -- in fact it's free
False. 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
10) "They e-mailed me a copy, so I can post it."
False. 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, don't go nuts if somebody posts your E-mail.
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.
-------------------- 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 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 copyrighted.
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 isn't, and for almost all typical E-mail, nobody could
wring any damages from you for posting it.
Permission is granted to freely copy
this document in electronic form, or to print for personal use. 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.
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. Also note that while most of these principles are universal in
Berne copyright signatory nations, some are derived from Canadian and U.S.
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.
This document is still protected by you-know-
what even though it has no copyright notice.