Article by Brad Templeton

Presentation by Vincent Cecilio

Introduction

What is a Copyright? Intent of copyright? The 10 (actually 11) Myths Conclusion Questions/Comments

What is a Copyright?

A Copyright gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain

Intent of copyright?

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors...the exclusive Right to their...Writings“

Essentially:

1) To protect the author’s right to obtain commercial benefit from valuable work.

2) To protect the author’s general right to control how a work is used.

MYTH 1) "If it doesn't have a copyright notice, it's not copyrighted." FALSE

Almost all major nations follow the Berne copyright convention of 1886.

Copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation.

With the U.S. signing the Convention in 1989, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not.

ALWAYS assume for other people's works is that they are copyrighted and may not be copied unless you know otherwise.

MYTH 2) "If I don't charge for it, it's not a violation." FALSE

Whether you charge money or not can affect only the damages awarded in court.

No money or services are exchanged in P2P (peer to peer) file sharing. However, P2P has caused tremendous financial damages to the entertainment and recording industry.

The RIAA (Recording Industry Association of America) have sued Jammie Thomas-Rasset of Minnesota for $2,000,000 for illegally downloading music. Damages are set at $80,000 per song.

Do not publish or distribute private works unless given permission.

MYTH 3) "If it's posted to Usenet it's in the public domain.“ FALSE

Usenet is a worldwide distributed Internet discussion system, like a BBS(bulletin board system) or web forum, it allows many users to share and exchange ideas.

The public domain is a range of abstract materials or intellectual property which are not owned or controlled by anyone.

Only the author has the authority to place items in public domain.

MYTH 4) "My posting was just fair use!" FALSE

The "fair use" exemption to (U.S.) 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.

NOT OK: Posting the entire Martin Luther King "I have a dream" speech in its entirety (without permission) for the public to read, listen, or view.

OK: Posting a short excerpt of the Speech and commenting on how it was one of, or is, the most iconic speeches of the 20th century supporting the civil rights movement.

Fair use is generally a short excerpt and almost always attributed. It should not harm the commercial value of the work.

MYTH 5) "If you don't defend your copyright you lose it." -- "Somebody has that name copyrighted!" FALSE

Copyright is effectively never lost these days unless done so by the author.

You can NOT copyright a name. Reserving right to a name is a Trademark.

A trademark is a type of intellectual property, such as a name, word, phrase, logo, symbol, design, image, or any combination of these elements. There are similar rules governing trademarks as do copyrights. Trademarks can be weakened or lost if not properly defended.

OK: Honda Food Corporation or Honda Flower Company. These names include very distinct and unambiguous business labels.

NOT OK: Honda Engine Company or Honda Vehicle Corporation. These may confuse consumers with the popular Honda Motor Corporation label. This allows the infringed trademark to profit off of the value of the Honda Motor Corporation's name and reputation.

MYTH 6) "If I make up my own stories, but base them on another work, my new work belongs to me." FALSE

Copyright law is quite explicit that the making of what are called "derivative works" -- works based or derived from another copyrighted work is the exclusive province of the owner of the original work.

almost all "fan fiction" is arguably a copyright violation.

Parodies rely on the fair-use defense to forestall any liability. The fair-use defense will only be successful if the newly created work that purports itself to be parody is a valid parody.

MYTH 7) "They can't get me, defendants in court have powerful rights!" FALSE

Copyright law is mostly civil law and less criminal law.

In a civil lawsuit, the victim brings a case for money damages against the offender.

There are no public defenders for civil lawsuits.

"Innocent until proven guilty" or "proof beyond a reasonable doubt" do not apply here.

It's mostly which side and set of evidence the judge or jury accepts or believes more.

Copyright offenders have much less power than criminal offenders.

MYTH 8) "Oh, so copyright violation isn't a crime or anything?" FALSE

In the 90's, US commercial copyright violation involving more than 10 copies and value over $2500 was made a felony.

A copyright infringement is subject to criminal prosecution if infringement is willful and for purposes of commercial advantage or private financial gain.

MYTH 9) "It doesn't hurt anybody -- in fact it's free advertising." FALSE

It's up to the owner's discretion if they want to advertise their work or not.

Never assume whether it hurts the owner or not.

Example: NAPSTER. Many unknown and upcoming artists were using this site as a means to advertise and showcase their music to the world. This rationale served as a common scapegoat for Napster users to infringe on other popular and well established artists works.

MYTH 10) "They e-mailed me a copy, so I can post it." FALSE

All the E-mail you write is copyrighted, permission is required to legally distribute it.

To have a copy is not to have the copyright.

Due to the majority of e-mails having minimal commercial value, usually no lawsuits are filed for illicit e-mail distribution.

Asking permission to distribute someone else's e-mail to others is mostly viewed more commonly as "Netiquette" (e-mail etiquette) than it is considered proper copyright procedure.

MYTH 11) "So I can't ever reproduce anything?" FALSE Copyright does not prohibit all copying or replication.

U.S. copyright law permits reproduction under 4 factors:

1) The purpose and character of use

2) The nature of copyrighted work

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4) the effect of the use upon the potential market for or value of the copyrighted work

o US Copyright law amended that for certain purposes making 10 copies or more is construed to be commercial. This enters the realm of “un-fair” use and closes the gap between civil and felony offense.

Conclusion – How to Stay out of Legal Trouble Almost all modern works are copyrighted regardless of

notice, so assume all works found are copyrighted. Never assume you have permission, are doing no damage,

or are doing the author favors, always ask for permission first.

If you decide to re-produce work for commentary purposes, make sure you use short excerpts and stick to strict commentary.

Ask yourself why you are re-producing published work. Is it for your gain or the author’s? Use common sense and common courtesy.

Watch out! Civil Copyright Violations are slowly evolving into Criminal violations.

QUESTIONS? COMMENTS?