Some Observations on Copyright Law

Copyright 1997-2001, 2004, 2009, 2012 Ronald B. Standler

Table of Contents

Copyright Law in the USA
plagiarism
fair use
using someone else's text in your writing
photocopy machines
copying on the Internet
international problems
future directions for copyright law
registering a copyright in the USA
links to copyright resources
copyright infringement hurts authors

Introduction

This essay is a terse survey of part of copyright law. The July 2005 edition of the United States Code Annotated, Title 17, which contains the complete U.S. statutes on copyright law, together with historical notes and one-sentence summaries of important court cases, has a length of 1681 pages, clearly too much to summarize in any short essay. For more detail, the mostly widely recognized treatise is Nimmer on Copyright, which is in 11 volumes.

This essay is intended only to present general information about an interesting topic in law and is not legal advice for your specific problem.   See my disclaimer.   I am an attorney in Massachusetts who concentrates in copyright law, among other areas of law, but I provide legal advice only after being hired, considering your situation carefully, doing any necessary legal research, and writing an opinion letter.

This essay shares some information on several topics that interest me:
  1. plagiarism of text
  2. infringement of copyright when using photocopy machines
  3. duplication of web pages and text on the Internet
A polite assumption would be that people are not aware that copying is unlawful: it is a violation of copyright laws and the property rights of authors. This document gives a brief sketch of the nature of the rights protected by copyright law. Unfortunately, any discussion of enforcement of intellectual property rights gives an offensive impression of being told not to steal towels from a hotel. <grin>


Copyright Law in the USA

Copyright occurs automatically when both of two conditions are satisfied:
  1. the creation of an original work and
  2. "fixation of that work in any tangible medium of expression."
17 USC §§ 101, 102(a), 302(a).

Loading copyrighted material into a computer's semiconductor memory does create a fixation that satisfies the legal test for copying.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9thCir. 1993), cert. dismissed, 510 U.S. 1033 (1994).

The current law in the USA requires neither a notice of copyright (e.g., "Copyright 1997 Ronald B. Standler") nor registration of the work with the U.S. Copyright Office. 17 USC §§ 401(a), 407(a), 408(a). However, if a work does have a notice, then an infringer can not claim a "defense based on innocent infringement in mitigation of actual or statutory damages". 17 USC §401(d). And if a work is registered, then:

  1. the registration is prima facie evidence of the validity of the copyright in litigation for copyright infringement. 17 USC §410(c).
  2. the author may file suit for infringement of the copyright. 17 USC §411(a).
  3. the author may seek an award of statutory damages between US$ 750 and US$ 30 000 (i.e., the author is entitled to money from the infringer, without the author needing to show financial loss from the infringement). If the infringement was "willful", the statutory damages can go as high as US$ 150 000. 17 USC §§412, 504(c).
  4. a court may require the infringer to pay all of the attorney's fees of the author. 17 USC §§412, 505.
Note that 17 USC § 412 requires registration of a work before the infringement, as a condition for both statutory damages and an award of attorney's fees to plaintiff.   Therefore, authors should register their copyright before the earlier of the first publication or first public display of their work.

An author of a copyrighted work has the following exclusive rights conferred by 17 USC §106:
  1. to reproduce the work (e.g., to make copies)
  2. to prepare derivative works (e.g., translation, abridgment, condensation, adaptation)
  3. to distribute copies to the public (e.g., publish, sell, rental, lease, or lending)
  4. to perform the work publicly
  5. to display the work publicly

The Berne Convention for the Protection of Literary and Artistic Works, Article 6bis(1), states:

Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Unfortunately, the U.S. national law does not recognize such "moral rights" of authors (except for the special case of authors of visual art, such as paintings, 17 USC § 106A), although such rights for all authors are clearly specified in The Berne Convention for the Protection of Literary and Artistic Works quoted above, and despite the claim of the U.S.A. that, since 1 March 1988, the national law in the U.S.A. complies with the Berne Convention. 17 USC §104(c). I have posted a separate essay on moral rights of authors in the USA, with emphasis on rights of scientists, professors, and students.

Works of the U.S. Government (e.g., statutes, opinions of federal courts) are not protected by copyright inside the U.S.A. 17 USC §105.   See my separate essay.

The duration of the copyright in the USA for works created after 1 Jan 1978 is life of the author plus an additional 70 years. 17 USC §302(a) (amended 1998, current Nov 2008). For works created before 1978, see the chart created by Prof. Laura Gasaway, Head of the Law Library at the University of North Carolina at Chapel Hill.   Peter B. Hirtle, a librarian at Cornell Univ., has a more comprehensive chart.


plagiarism

Plagiarism is defined as quoting or paraphrasing text from another author without both (1) the indicia of a quotation and (2) a proper bibliographic citation. The indicia of a quotation is either (1) enclosing the text in quotation marks or (2) formatting the text as an indented, single-spaced block. Information about the form(s) of a bibliographic citation is given in academic style manuals (e.g., The Chicago Manual of Style). At a minimum, a proper citation must contain the author's name and enough information about the source of the quotation, so that the reader can easily find the quotation in the original. For quotations from a webpage, the author's name and the URL of the webpage must be given.

I have posted separately a long, detailed discussion of the legal aspects plagiarism in colleges in the USA, with emphasis on plagiarism by college students and the sale of term papers. My essay on plagiarization includes quotations from many court cases in the USA.

Note that paraphrasing or other trivial changes in copied text, in an attempt to avoid copyright infringement, are specifically prohibited by law in the USA: As an example, Steinberg v. Columbia Pictures, 663 F.Supp. 706 (S.D.N.Y. 1987) held that a Columbia Pictures' promotional poster for a movie infringed the copyright of an illustration on the cover of a New Yorker magazine, although the details in the movie poster had been changed from the magazine cover (only the words "Hudson River" were the same in both items), the judge ruled that the movie poster was "substantially similar" to the magazine cover.

Amendments to the U.S. Copyright statutes in 1998 included a new section making it wrongful to "intentionally remove or alter" any one or more of the following items: 17 USC §1202.
Violation of this section entitles the copyright owner to statutory damages between US$ 2500 and US$ 25 000 for a first offense by the defendant, or payment of actual damages, whichever are greater. For a subsequent offense by a defendant within three years, the damages may be tripled (i.e., statutory damages of at least US$ 7500). In addition, the judge "may award reasonable attorney's fees to the prevailing party". 17 USC §1203.

These new penalties for removing or altering a copyright notice give authors and owners of copyrights a new tool to prosecute plagiarists.


fair use

Under the doctrine of fair use, an author may make short quotations for purposes of criticism, comment, news reporting, teaching, or scholarship, without first obtaining permission of the copyright owner of the quoted work. However, every quotation must be clearly identified with the source of the quotation and the name of the author of the quoted text.

For many years, fair use in the USA was common law (i.e., law created by judges), but the Copyright Act of 1976 included fair use:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 USC § 107 (amended 1992).
The meaning of these words in 17 USC § 107, and the relative weight of each of the four factors, have been interpreted in a long series of court cases, of which the following are particularly important: There is little guidance that gives a precise, quantitative determination of the line that divides fair use from infringement. The concept of fair use is one of the most difficult topics in copyright law.

Originally, fair use only applied to authors who made short quotations when preparing new works. Since the early 1970s, some attorneys have argued that fair use also applies to photocopying and other forms of exact reproduction.   I am aware of many judicial opinions that hold that making a verbatim copy of an entire chapter in a book, an entire article in a scholarly journal, or an entire webpage is not fair use under the law of the USA, even if done by a teacher or professor.   The topic of fair use is controversial amongst specialists in copyright law, and too complicated to discuss here.   The safe advice is to get permission of the copyright owner before making multiple verbatim copies of any copyrighted work.

The legislative history of the Copyright Act of 1976, U.S. House of Representatives Report 94-1476, contains a privately negotiated set of guidelines for photocopying by nonprofit educational institutions. These guidelines do not follow fair use law in judicial opinions, furthermore, these guidelines are not legally binding on a court in the U.S.A.   I now believe these guidelines are not only worthless, but also misleading.   I posted an HTML version of these guidelines on the Internet as an independent document, to clearly separate these guidelines from my own writing.


using someone else's text
in your writing

In the context of creating a webpage (but also valid for writing in other contexts), let's discuss several methods to make a webpage and how copyright law views each method.
  1. Find some text or a picture elsewhere and upload it to a website, without any changes. This is blatant copyright infringement, a violation of the copyright owner's exclusive legal rights under 17 U.S.C. § 106 to publicly display the work.

  2. Find some text elsewhere; copy it; make a few changes, deletions or additions; and then upload it to a website. This is copyright infringement, a violation of the copyright owner's exclusive legal rights under 17 U.S.C. § 106 to make (or to authorize) derivative works.

  3. Find some text elsewhere, copy a small part of it, and include it as a quotation in your work. To avoid plagiarism, be careful to both (a) use the indicia of a quotation (i.e., either quotation marks or indented block of single-spaced text) and (b) include a complete bibliographic citation (e.g., author's name, title of work, URL, etc.) to the source of the work. This is the only acceptable way of using text written by someone else in your webpage or other writing.

Copying illustrations, diagrams, or photographs (e.g., scanning a printed image or copying a GIF or JPEG file) always requires permission of the copyright owner, unless the works are clearly in the public domain (e.g., either a work produced by the U.S. Government or a work that was initially published before 1922 and was registered with the U.S. Copyright Office).

why undesirable to post infringing copies on Internet

According to the federal statute, 17 U.S.C. § 106(5), the copyright owner has the exclusive right to publicly display the copyrighted work. That means the copyright owner does not need to explain to copyright infringers why the copyright owner objects to unauthorized public diplay of copyrighted work. However, there are several rational reasons why it makes sense to display an author's work only at the author's website:
  1. Aside from legal implications of copyright infringement, reposting of material from other web sites can be an inconvenience to other users. The author may revise the original document frequently, but copies posted by other users will not be revised (indeed, the author may not know of the existence of these copies). The easiest way for everyone on the Internet to have the freshest information is to have only the author post the document. Other people can post a hypertext link to the author's document, to refer their readers to the most recent version of the document at the author's site.

  2. The author may spend more than 100 hours of unpaid time to research, write, and revise one webpage. The author may intend that webpage to be part of a personal portfolio at the author's website, showing examples of the author's work that lead clients to hire the author. Unauthorized display of the author's work at an infinger's website diverts readers from the author's website, when search engines send readers to a copyright infringer's website. If an author's work is posted at an another website, third-parties may link to the other website, again diverting readers away from the author's website. This is essentially an unfair competition claim: the author did the work, but the infringing website receives readers.

  3. An author may use relative links in an HTML webpage (e.g., <A HREF="filename.htm">link</A> ). When such webpages are copied to another website, the relative links will not correctly function, unless all of the linked webpages are also copied.

  4. Displaying the same work at more than one website makes redundant entries in results of search engines. When I ask Google to display 50 webpages, I expect fifty different webpages, not many copies of the same document.

  5. Authors are hurt by seeing their personal property copied and displayed elsewhere, especially when their name is removed (i.e., the author's work is plagiarized).

permission

I have seen many web sites with collections of images that contain a notice similar to the following:
If you find an image that belongs to you and you do not want it displayed here, send me an e-mail and I'll remove it immediately.
That may be a pleasant statement, but it shows a serious misunderstanding of copyright law. The law requires that the author of a web site, book, etc. ask permission of the copyright owner before either copying or displaying any copyrighted work. The burden is on the copier to ask permission. It is not the duty of the copyright owner to cruise the Internet and ask authors to stop infringing a copyright. In fact, the copyright owner can file copyright infringement litigation immediately on discovering the unauthorized use of copyrighted material.

And, when you ask for permission, do not say "If you do not reply, I will assume you granted permission." (I have actually received many e-mails with such wording!) The only way for a copyright owner to grant permission is to make a statement — either a general statement in his/her terms-of-service webpage or a specific statement in reply to a request for permission — that copying is acceptable to the copyright owner. The default setting (i.e., no reply from the copyright owner) is that there is no permission to copy.


Photocopy Machines

Photocopy machines have been commonly used in libraries and offices since the mid-1960s. Yet the business and legal community was startled in 1991-1996 by a series of federal cases that held that some common uses of a photocopy machine were copyright infringement: That these cases appeared more than thirty years after the introduction of the photocopy machine shows how slow law is to respond to new technology.

The Princeton Univ. Press v. Mich. Document Service case is particularly important for professors. In that case, professors copied chapters of books and articles in scholarly journals, then handed the set of photocopies to Michigan Document Service to reproduce into a custom-made textbook for students. Of course, no royalties were paid to the owners of the copyrighted material that was photocopied and distributed. The courts held that this copying was an infringement of copyright. Aside from legal issues of copyright infringement, a professor should set a good example for his/her students, by respecting copyrights of other authors.


Copying on the Internet

Most of copyright law was formulated in terms of books, audiovisual works (e.g., motion pictures), and sound recordings. While the basic principles of copyright law are the same for all media, it is not yet clear how some of these principles apply to the Internet.

The act of viewing a page on the Internet automatically involves making a copy, since the material is transferred to the user's computer and stored there in semiconductor memory (also called RAM, an acronym for "random access memory"). This copy is arguably not infringement, because authors post documents on the Internet with the intent of having other people read the documents, so there may be an implied license to copy web pages during the reading of them. Moreover, the copy in RAM evaporates when the machine is switched off and the copy in RAM is overwritten when the next document is read, so the copy in RAM is not permanent.

Some browsers, such as Netscape, make a second copy of a document on the hard disk drive (e.g., for Netscape running under Windows 3.1, typically as a file in C:\NETSCAPE\CACHE\*.*). The purpose of this second copy is to make access quicker when the user presses the Back button on the browser. Retrieving a copy from the hard disk on the user's machine is much faster than reading the document again from the source machine and again transmitting the document through the Internet. While this second copy is a convenient feature of a browser, the designer and programmer probably gave no thought to the implications of this copy under copyright law. The cache directory on the user's hard disk is set by default in Netscape 3 to five megabytes of the most recently accessed documents. Once this limit is reached, the browser automatically deletes the oldest document to make room for the current document. The copies in cache on the hard disk will survive switching off the user's machine, but the copies will not survive repeated accessing of more documents from the Internet. The copy in cache is arguably acceptable practice under copyright law, provided that this copy is not used for any other purpose.

A third way to make a copy with a browser is to use the Print command to make a paper copy of the document. Such copying may be infringement of a copyright or there may be an implied license from the author for such paper copies. If a court finds that there is an implied license, a court could still find infringement, if the licensee's use exceeded the scope of the implied license.

A fourth way to make a copy with a browser is to use the Save As command from the File menu. This command saves the HTML, JPEG, or other file on the user's hard disk with a filename chosen by the user. Such copying is infringement of a copyright.

Servers operated by local Internet Service Providers obviously transmit a copy of documents requested by their users. A new section of the copyright law, 17 USC § 512(a) (1998), provides immunity from infringement to Internet service providers who automatically transmit or route copies of material in response to requests from users. Another new copyright law provides immunity from infringement to Internet service providers who maintain a temporary copy (called caching) of a frequently requested document on their server, to reduce the amount of long-distance communications and to decrease response time. 17 USC § 512(b) (1998).

Internet service providers (ISPs) and colleges should be aware of amendments to the copyright statutes in 1998 that provide the corporation or college with immunity from infringement by their customers or students, if the ISP or college complies with certain requirements prior to the infringement. Consult a local attorney who is familiar with copyright law for details.

Posting a document on the world wide web is not publication. Publication is defined in the U.S. Copyright statute as
... the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. .... A public performance or display of a work does not of itself constitute publication.
17 U.S.C. §101.
Posting a document on the world wide web is a "public display" of the work, which is among the rights exclusively reserved to the owner of the copyrighted work. 17 USC §106(5).


international problems

Finally, this essay emphasizes the law in the U.S.A. However, copyright law in many other countries differs in details from the law in the U.S.A. Therefore, copying that is legal in the U.S.A. might be a violation of the author's rights in another country, something of concern given the international nature of the Internet. One important example is the law in the U.S.A. does not recognize moral rights of authors, although such rights for all authors are clearly specified in The Berne Convention for the Protection of Literary and Artistic Works, Article 6bis, and despite the claim of the U.S.A. that, since 1 March 1988, the national law in the U.S.A. complies with the Berne Convention. There is already a case, in a different context than the Internet, that illustrates these differences in national laws. John Huston's black and white film Asphalt Jungle was converted to color by the Turner company. Turner then contracted with a French television network to show the color version. Huston's heirs sued in a French court, with a claim that Turner had violated Huston's moral rights. Note that Huston, the company that produced the original black and white movie, and Turner were all American, and both the black and white movie and the colorized version were produced in the USA. Under the usual conflict of law rules, the law of the USA should apply: (1) the studio, not Huston, was the author and (2) there are no moral rights of authors in the USA. Instead, the highest French court, in Huston v. La Cinq Cass. civ. 1re (28 May 1991), applied French law, because they believed moral rights of authors, as part of basic human rights, were of higher importance than contract law. The French court held that the protection of moral rights of authors did not depend on the law of the country of origin of the work. Hence, the television network was enjoined from showing the color version of the movie.


future directions for copyright law

Copyright law in the USA seems to have been written by lobbyists for publishers and motion picture studios, in that legal protection for rights of authors is markedly less than in France or Germany, or even in the Berne Convention.

Since the 1980s, one sometimes sees proposals in the USA to end copyright law. Most of these proposals recognize the ease of making copies with a photocopy machine or with a computer (e.g., copying a program or downloading a file from the Internet), then simply assert that the ease of making a copy has somehow made copyright obsolete. In my opinion, this type of argument is like a child who claims that algebra is difficult to learn, therefore he/she should not be expected to learn it. I suspect that many of these proposals are really nothing more than a disguised attempt to further reduce author's rights, by weakening copyright law.

The fundamental purpose of copyright law is to provide an incentive for authors to create expression, by recognizing that expression as a kind of property. The invention of photocopy machines and personal computers in no way changes the desirability of protecting authors' intellectual property.


registration of a copyright in the USA

Most people register their copyrights without the assistance of an attorney. The U.S. Copyright Office provides forms for registration of documents, as well as online registration. However, any questions about the legal terms used on the application form (e.g., Was this a work for hire?), should be referred to an attorney who is both licensed to practice in your state and familiar with copyright law.

I registered 131 copyrights during 1997-2011. In mid-2008, the Copyright Office began online registrations, which are now routinely processed in about three months.


links to copyright resources

The U.S. Copyright Office homepage.

My subhomepage on copyright law lists my services and links to my other essays on copyright law.

The following Internet web pages may have useful information on interpretation of "fair use" in academic settings and other practical interpretations of copyright law.   Note that I am not endorsing any of their opinions!   In particular, many professors commonly assert broader "fair use" privileges than what I believe the law in the USA actually permits.
list of links to copyright resources   See the above university websites on copyright, plus:

Yale Univ. Library by Ann Shumelda Okerson, list of university webpages on copyright

Note that there are many webpages on the Internet containing false or misleading statements about copyright law. Please check the author's credentials and the authority cited by the author for his/her statements before accepting them either as true or as good advice.

copyright law classes:
Prof. Jessica Litman Univ. of Michigan,   links
Prof. Jay Dratler Univ. of Akron
Prof. Dennis Karjala Arizona State Univ.


Periodicals in the USA commonly grant a license to make a copy for personal or business use that exceeds fair use, provided that the stated fee is paid directly to the Copyright Clearance Center.


copyright infringement hurts authors

This essay has focused on the legal issues of copyright. But there is also a personal, emotional issue when an author finds his/her work copied without permission or — worse — plagiarized. Copyright infringement and plagiarization hurt the true author.

In one famous example of copyright infringement on the Internet, Gene Ziegler at Cornell University in 1994 wrote a lovely parody of writing in technical manuals in the style of Dr. Seuss books for children. His parody was not only copied without his permission and posted at more than 200 different Internet sites, but also the copiers removed Ziegler's name, often making him anonymous, but sometimes giving someone else credit for Ziegler's parody.

One bastard version of about half of Ziegler's work appears as What If Dr.Seuss Did Technical Writing?, which was attributed to "Anonymous" in Roseville, California. While this version has been removed from the Stanford University webserver, in March 2006 my search in Google for the title found more than fifty copies on the Internet .

One year after creating the original parody, Ziegler wrote a bitter parody Hang the Information Highwayman!

Dr. Caroline Bowen, a speech-language pathologist in Australia, has had parts of her website plagiarized by many people. When she complained about the plagiarism, most plagiarists quickly removed her material from their websites, but "several have been outraged that I would object!" She finally had enough of plagiarists and posted a webpage that specifically discusses plagiarism.

Most people who do improper copying on the Internet probably never created any prose or poetry that is good enough that someone else would want to copy it. But even a dog distinguishes between his Master's property and someone else's property.

To fight back against the many students, and some professors and attorneys, who have violated my copyrights, in January 2003 I began posting my new essays in Adobe PDF, with both printing disabled and cut-and-paste disabled, to make it more difficult for other people to violate my copyrights.



this document is at http://www.rbs2.com/copyr.htm
first posted 27 Dec 1997, modified 17 April 2012

list of my other essays on copyright law

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