TeleRead: Bring the E-Books Home

Copyright basics: Not so basic after all

By Sadi Ranson-Polizzotti

Sadi Ranson-Polizzotti, TeleRead’s e-book reviewer, speaks out below on copyright law–as a professional writer and a former book editor. This is the first in a series expressing her personal opinions.

Want to whine about copyright law? Go ahead. But you can do so more effectively, and maybe even avoid a lawsuit, if you understand:

• Copyright law as it is today.
• As it was and is worldwide.
• What this means for the author—or, to be more, general, the copyright holder.
• The meaning for the person wishing to use the author’s work and seeking copyright permission or more.
• The legal risks for copyright-infringers.

One article cannot do the justice to this complicated topic, so it’s easier to begin with a more general discussion of copyright. Then we can delve into deeper issues, especially about copyright and e-books. Of course, as we’ll learn, copyright law for e-books remains much as it would for any copyright-protected work.

That said, what exactly is protected? First, understand the difference between work that is made public and work that is in the public domain–two entirely separate things in copyright law. This is one of the issues addressed at the U.S. copyright site, which lists common categories of protected works:

1. Literary works.
2. Musical works, including any accompanying words.
3. Dramatic works, including any accompanying music.
4. Pantomimes and choreographic works.
5. Pictorial, graphic, and sculptural works.
6. Motion pictures and other audiovisual works.
7. Sound recordings.
8. Architectural works.

Not protected in the United States are:

• Works that have not been fixed in a tangible form of expression. For instance, these would include choreographic works that have not been notated or recorded. Other examples would be improvisational speeches or performances that have not been written or recorded.
• Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
• Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
• Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

The general purpose of U.S. copyright law is two-fold:

• The author’s right to obtain commercial benefit from the value of the work.
• The author’s absolute right to control how the work is used in various contexts. Is it used to promote certain things that the author may not condone, for example, or to promote an ideal or concept that the author does not agree with or wish to be associated with? This is more recent a purpose and matters increasingly.

There are so many good examples of this that it calls for a whole other article, so we’ll save that for a later date as I can think of hundreds. Consider the use of your image to promote a thing you find repellant, for example. Or how about the use of your image associated with a cause that you feel vehement against? Imagine if your image were being used to promote a gun lobby and you were vehemently anti-gun. For the curious, I am not sure where I stand on this issue. There are times when a good gun would have come in handy, of course, for a higher purpose; but at the end of the day, who am I to decide what is right and what is wrong? Of course, this form of street justice rarely works.

Now back to the virtual Wild West, the Internet. I found whatiscopyright.org to be quite informative, especially dealing with Internet issues. The site offers some fascinating interpretations of copyright laws. For example, sound recordings could include sound recordings of books and not just music, just as literary works could also be applied to sound recordings. So there is some crossover here. Architectural works are interesting as well, but could also be applied to Internet architecture and original coding such as HTML or XML or Flash coding. One cannot simply reproduce a Web page or steal or use an image on the Web and say that this is in the public domain simply because it is online. This work is indeed public in that it is seen by many people every day. But will it be seen in a certain context that the original author of the work intended? That issue arises with reproduction.

According to whatiscopyright.org, “This means that if you can see it, hear it and/or touch it–it may be protected. If it is an essay, if it is a play, if it is a song, if it is a funky original dance move, if it is a photograph, HTML coding or a computer graphic that can be set on paper, recorded on tape or saved to a hard drive, it may be protected. Copyright laws grant the creator the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work publicly. Exclusive means only the creator of such work, not anybody who has access to it and decides to grab it.”

To change this work is to infringe on the copyright. This means you have no right to alter or deface or reuse the image how you please–simply because you think it is public–or even if the image is public and you believe it is therefore in the “public domain.”

First, you would be wrong to think such a thing. A public image is not necessarily in the public domain (though, yes, it could be–but this should always be researched and as far as contemporary images go, by definition it seems unlikely that the work would be in the public domain).

Believing that public work is public domain work is not only ignorant, but shows a profound lack of understanding of the law and what public domain means. As any officer of the court or judge will tell you when you come before him/her, ignorance is no excuse to break the law. In short, your ignorance of the law does not uphold your right to commit what is legally a felony act.

If you don’t know this, then read up on copyright law and educate yourself or you just might or even likely will find yourself in serious trouble. Ignorance of the law is no excuse and that is exactly what a judge will tell you when you are hauled into court. And if convicted, walk out a felon with a hardcore record.

To make things even clearer for anyone still confused (though I cannot imagine what could possibly be confusing about this issue, as it remains rather simple–don’t plagiarize, do not think you can alter, do not think you can steal, do not think you can use another person’s created image or even the individual’s likeness unless it falls under fair use laws, which I’ll get into later, and which are not as liberal as most people think.

The person who does own the copyright can do the following, but nobody else can without express written permission of the copyright holder. An offender can be prosecuted in a court of law. Significantly, copyright cases are handled differently from many other cases. Courts do not allow for as much “innocent until proven guilty”; in fact, the burden is more with the person who impinged on the copyright, and he or she may even be called on to incriminate themselves.

In any event, here is what the actual copyright holder can and has the legal right to do with his or her work according to the government site as of August 2005. Note that copyright laws are almost always in flux, especially these days. Though some remain essentially the same, others are by definition in flux because of the constantly changing demands of the Internet and the vast amount of copyright abuse and lack, unfortunately, of some kind of real policing of this problem.

While there are attempts to resolve this issue, for now it remains difficult to get a handle on an Internet with literally millions of people. It would mean weeding out the cases one by one. A better solution, and one that I think legally makes sense, would be to go after the biggest copyright breakers and prosecute them as felons. Copyright infringement is a true felony not only with a fine but more depending on what you have done, and the fines can go up to the millions, depending on the case. A recent case with Adobe, for example, resulted in a settlement of several million dollars; and that’s nothing compared to what pharmaceutical and biotech and Hollywood firms can sue for.

Here is what the copyright-holder has the right to do, or has the right to allow another someone else to do, but only with permission. Remember, you cannot do this without express permission of the copyright holder. Here are the copyright holder’s rights according to the copyright office of the U.S. government. The copyright holder has the right to:

• …Reproduce the work in copies or phonorecords;
• …Prepare derivative works based upon the work;
• …Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• ..Perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• …Display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
• …In the case of sound recording… perform the work publicly by means of a digital audio transmission.

Here are some basic facts about copyright that anyone should know if he or she is going to use images, audio text or any other media or medium from others. Note that this information was compiled from various sources, though I have added additional information and edited for style and content.

1. Copyright protection exists from the moment the work is created even if it does not say copyright. The copyright in the work of authorship immediately becomes the property of the author who created the work. No copyright symbol or paperwork is necessary.
2. Only the author or those deriving their rights through the author can rightfully claim copyright.
3. The exception to the creator of a work owning the copyright is in the case of those who do “work for hire.” In such cases, the creators pass up the copyright usually in exchange for a fee. The copyright is owned by the company or individual who hired the writer/artist/etc. to create the work and the creator has no rights over the work once they sign the contract and accept payment. This is a contractual agreement and generally lasts forever and has no time limitations. Note, however, that in some instances, people agree to be co-owners of the copyright in which case both parties own the copyright though one cannot use or alter the work without the other party’s permission.

So how long is work copyrighted in the United States? This will depend on a variety of factors. See a table from the law firm of Brown and Michaels
.
Internationally, the Berne Convention applies: Here is the text from whatiscopyright.org

“The Berne Convention establishes a general and minimum period that lasts the life of the author and fifty years after his (or her) death. Cinematographic works and photographic works have a minimum period of protection of 50 and 25 years upon the date of creation, respectively. This applies to any country that has signed the Berne Convention, and these are just the minimum periods of protection. A member country is entitled to establish greater periods of protection, but never less than what has been established by the Berne Convention.”

Copyright is a thorny and complicated issue and one that should never be taken lightly and there are many aspects to this that we will get into at a later date. For now, this is more than enough to get into and try to grasp because it is a lot.

Note too that there are many myths about copyright and we’ll be covering those in our next article about the top prevailing myths concerning copyright.

To be safe, if it isn’t yours, don’t use it unless you have explicit written permission. Fair Use is another issue entirely and we’ll also get into that at a later date.

Sadi Ranson-Polizzotti, August, 2005
www.tantmieux.squarespace.com