Copyright and Copyright Infringement is an area of law that is constantly perplexing. It is not surprising given that different countries all have their own framework in which copyright sits. As intellectual property infringements are becoming more, not less commonplace, make sure you know just what you can and can’t do with regard to using other people’s copyrights.
When does copyright occur?
As soon as a work is created, expressed in a tangible or physical form, for example it has been written on paper, saved to a disk or hard drive or saved to an audio/video device, and provided the work is original and the author has used some judgment or skill to create the work, it is automatically copyrighted.
Does the © symbol need to be on the work?
At some point in the past in some jurisdictions it was a requirement to put a copyright notice on the work. However, as a lot of countries have now signed up to the Berne Convention there is now no longer a legal requirement to put the © symbol on copyright work. However, it does no harm to include a copyright line along the lines of : ©2011 Amanda Duffy, if only to serve as a reminder to would-be infringers that the work is copyrighted.
Do copyrights need to be registered?
There is no legal requirement to do so in most countries as copyright protection is automatically attached to original work as soon as it is created. Some countries, such as the UK, have existed for years without having a central copyright registration facility. This led to the term ‘poor man’s copyright’ when copyright holders, in order to prove their ownership of a work, would post a copy of their work to themselves and file the unopened envelope away in order for it to be produced and opened in court should the need ever arise.
This rather anachronistic way of doing things is of little use in today’s world. Thus, with copyright infringement becoming a major issue more rights holders are registering their works with copyright registration facilities as another weapon in their armoury against infringers.
Of note is that in the United States, although copyright is automatically granted as soon as a work is created, the work must be registered with the Register of Copyrights before any infringement suit may be filed.
What if an idea has been stolen?
People are entitled to express ideas, even someone else’s ideas, in their own way. For example, anyone can write a book on a schoolboy wizard, but as soon as they call him Harry Potter or use any other of J K Rowling’s characters, or any of the plots or made up words, such as ‘muggles’, then they are infringing her copyright.
As one Australian judge put it rather succinctly, if you are the first person to announce a man has fallen off a bus you cannot use the law of copyright to stop other people from announcing it.(1)
Can a word or title be copyrighted?
Some skill and knowledge has to have gone into the creation of the work before it can be copyrightable. For this reason a title or word is not copyrightable, although a title may be trademarked.
For instance, look at The Power of Love (Johnson/O’Toole/Gill/Nash) by Frankie Goes to Hollywood; The Power of Love (De Rouge/Mende/Rush/Applegate) by Jennifer Rush and The Power of Love (Lewis/Christopher/Colla) by Huey Lewis and the News. All three songs/recordings have the same idea and the same title but all have their own copyrights and each work is a completely separate and original work from the others. The title, The Power of Love, is not copyrightable on its own, but together with music and/or lyrics it becomes a copyright work.
So what is copyright infringement?
Copyright infringement occurs when someone else’s work is reproduced, distributed, performed, broadcast, translated or made into a derivative work without permission of the owner.
What is the difference between copyright infringement, plagiarism and piracy?
Nothing if you are a copyright owner and, aside from the sanctions involved, nothing from a legal standpoint. Plagiarism, at its best, is omitting to include sources, but at its worst is passing off another’s work as your own. Whichever way it is dressed-up it is still copying another’s work without permission and is, thus, an infringement.
Aside from the fact that piracy is usually on a commercial scale the fact is that piracy is still copying or distributing another’s work without authorization.
This confusion on what constitutes copyright infringement is partly to do with some legal remedies being available in other areas of the law. For example, ‘passing off’ is governed by the common law of tort. Piracy, on the other hand, is a criminal offence. Plagiarism does not exist as a legal term, anywhere.
Is Copyright Infringement a Crime?
Copyright infringement is generally a common law offence. If an infringement has been committed then the infringer will be ordered to pay damages to the copyright owner. However, with the advent of mass piracy of copyright material criminal sanctions against infringers are increasingly being sought, with heavy fines and prison sentences being meted out.
Are there any occasions where you can use copyright work without permission?
In the UK, and other territories whose copyright laws are derived from the UK’s such as Canada, Australia and New Zealand, ‘fair dealing’ is the right to reproduce limited portions of copyrighted works without infringing the owners rights.
‘Fair dealing’ is limited to non-commercial research and private study; criticism, review and news reporting, as long as the original sources are cited in the latter three areas.
In the US it is called ‘fair use’. Generally, the principles are the same but there are some important differences specific to each country which you will need to clarify if you are looking at using fair use or fair dealing provisions. For example, the US is willing to grant fair use protections to parodies whereas there is no mention of parody in the UK’s provisions.
The other occasion is when a work is domaine public or public domain. This is when a work has fallen out of copyright. Should you wish to use a public domain work there is no longer the requirement to seek permission from the copyright owner, although you will still need to ensure that you have cited the original work as your source.
Are there any other occasions when using copyright work is permissible without consent?
Absolutely not. There are plenty of myths around, such as, ‘Music can be used in You Tube videos providing it is not more than 30 seconds long’; or that ‘It’s OK to copy up to 50 words of a copyright work into an article’
The thing to bear in mind is that if you are a contributor or an employee your organization or employer may well have some sort of rules or agreements concerning copyright. This does not mean it is the law, it just means that is your organizations or employer’s rule. The key is to learn to differentiate.
Basic copyright and copyright infringement issues should be relatively straightforward if you are armed with the correct information in the first place. The main thing to remember is that, apart from the fair use/dealing provisions, or a work being public domain, it is almost certainly the case that any other kind of use will require permission from the owner and without that permission you are running the gauntlet of possible intellectual property litigation.
REFERENCES:
1. Latham CJ in the Australian decision of Victoria Park Recreation and Racing Grounds Co. Ltd -v- Taylor (1937) 58 Copyright Law Review 479 and 498
SOURCES:
Library of Congress: United States Copyright Office, viewed 30 January 2011, http//www.copyright.gov
Canadian Intellectual Property Office, viewed 30 January 2011, http://www.ic.gc.ca
World Intellectual Property Organization, viewed 30 January 2011, http://www.wipo.int, http://www.wipo.int/treates/en/documents/pdf/berne.pdf.
Suite 101 Citing Sources in Your Articles: Direct Quotations and Paraphrasing, viewed 30 January 2011, http://www.suite101.com/learn/citing-sources
Dworkin G., Taylor R. "Blackstone's Guide To The Copyright, Designs and Patents Act 1988" Blackstone Press
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