Some Observations on Copyright Law

Copyright 1997-2001 Ronald B. Standler


Table of Contents

Copyright Law in the USA
plagiarism
fair use
fair use guidelines in H.R. Rep. 94-1476
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 not a survey of copyright law. The United States Code Annotated, Title 17 (1996), 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 1172 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 ten volumes.

This essay is not legal advice. Such advice can only be provided by an attorney who is licensed to practice in your state and who has considered your problem and your situation carefully.

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., 26 U.S.P.Q.2d 1458, 1464 (1993), 991 F.2d 511, cert. dismissed, 510 U.S. 1033, 114 S.Ct. 671 (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.

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.


plagiarism

It is a violation of copyright law to use all or any part of A's document, either verbatim or with trivial changes, in a document written by B, except as described in the section on fair use.

Note that 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 (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.

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. This essay on plagiarization includes quotations from many court cases.

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

It is not an infringement of copyright to make short quotations from a work for purposes of criticism, comment, teaching, scholarship, or research. 17 USC §107. However, every quotation must be clearly identified with the name of the author and the source of the quotation. The Berne Convention for the Protection of Literary and Artistic Works, Article 10(3), which is implemented in national laws of many countries. Suitable forms for identification of author and source are contained in academic style manuals (e.g., The Chicago Manual of Style), in the rules for footnotes or bibliographic citations.

The fair use statute, 17 USC §107, says:
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.
The meaning of the 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:
Sony v. Universal, 464 U.S. 417 (1984);
Harper & Row v. Nation, 471 U.S. 539 (1985);
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994);
AGU v. Texaco, 60 F.3d 913 (1995), cert. dismissed, 116 S.Ct. 592 (1995).
There is little guidance that gives a precise, quantitative determination of the line that divides fair use from infringement. The nearest thing to such guidance is an agreement of publishers and academics that was cited in the U.S. House of Representatives Report 94-1476 that accompanied the major revision of U.S. Copyright Law in 1976. This agreement is persuasive authority, but not legally binding on a court in the U.S.A. See  AGU v. Texaco, 60 F.3d 913, 917-919, n.5 (1995). I posted a copy of the agreement on the Internet as an independent document, to clearly separate the agreement from my own writing. Note that this agreement does not apply to commercial use, but only applies to copying of books and periodicals in nonprofit educational institutions. Also note that this agreement does not purport to state the boundary between fair use and infringement, but only suggests that uses less than the stated threshold should be fair use.


Photocopy Machines

Photocopy machines have been commonly used in libraries and offices since the mid-1960's. 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 (RAM = 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 may be 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.

A user who copies text or pictures from one web site and then posts the material among the user's own web pages is generally infringing a copyright. Even if the user makes some changes before posting the material, the act of posting can be copyright infringement, as explained above in the section on plagiarism.

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.

Copying illustrations or 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).

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).

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 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.


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.

One frequently 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. However, if you have any questions about the legal terms used on the application form (e.g., Was this a work for hire? ), then you should consult an attorney who is both licensed to practice in your state and familiar with copyright law.

The current fee, payable to the Register of Copyrights, for examination of an application is US$ 30.

If the application is approved, a Certificate of Registration will be mailed at no charge. 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) (1998).

I registered ten copyrights during 1997-98, and I found that the process is slow: it took the Copyright Office between five and eight months to issue the certificate of registration when there were both no questions and no objections from the Copyright office. It took the Copyright Office between 33 and 76 days to deposit the check that was enclosed with the application, something that should be routine and automatic.


links to copyright resources

The U.S. Copyright Office.

The following Internet web pages have useful information on interpretation of "fair use" in academic settings and other practical interpretations of copyright law:
MIT's webpages on copyright
Stanford Univ. Libraries, emphasis on fair use
UCSD copyright policy for webpages
Univ. Tenn.
Univ. Texas
Wellesley College
Yale Univ. links to copyright resources
when works pass into the public domain, a handy chart by Lolly Gasaway at Univ. of North Carolina

Magazines 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 (typically US$ 4 per article) 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 is attributed to "Anonymous" in Roseville, California.

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, who have violated my copyrights, in January 2003 I began posting my new essays in Adobe PDF, with both printing and cut-and-paste disabled, which makes it more difficult for other people to violate my copyrights.


this document is at http://www.rbs2.com/copyr.htm
created 26 Dec 1997, modified 14 Jan 2004
This document now contains the 1998 and 1999 amendments to the U.S. Copyright statutes.

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