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The Sincerest Form of Flattery … And How to Protect Yourself From It

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I received an email the other day from an online friend alerting me to the fact that someone had copied one of the pages of my website and was using it, virtually verbatim, at theirs. It was my first personal experience of copyright infringement. How flattering, I thought! I imagine though that when it happens a few more times it will begin feeling decidedly less flattering and decidedly more irritating.

We ARE talking about theft, after all. So, that got me thinking about how to handle such situations. And THAT got me thinking about copyright law and, in particular, how it impacts on those of us running online businesses. After all, this is our livelihood we’re talking about.

In this article, I’m going to share the results of my research with you. Because we’re dealing with a technical legal subject here, I want to preface this article with a strong disclaimer that I am NOT giving you legal advice in this article. This is simply the result of my own research and you use or ignore the information I’ve included here at your peril. I neither assume nor accept any responsibility for what you do with this information. Also, this article discusses United States copyright law. If you live outside the United States, check your local copyright laws. Mind you, if you’re running an online business, because of the international nature of the medium, the United States copyright laws are relevant to you.

With that said, let’s get to it. We’ll look first of all at what copyright is, what it does, what can and can’t be copyrighted and who’s entitled to it. Then we move on to look at how to protect the copyright in your own work before, finally, dealing with how to go about using others’ work without infringing their copyright.

COPYRIGHT DEFINED

In a nutshell, copyright is legal protection for the authors of original literary, dramatic, musical, artistic and intellectual works. Copyright protects both published and unpublished works. Only the copyright owner has the right to reproduce, sell, distribute and perform the work publicly or to authorize others to do so.

THE COPYRIGHT OWNER

Generally, only the author of the work can claim copyright to it. There are a couple of relevant exceptions, however. Firstly, if the work is “work made for hire”, the employer and not the employee is the “author”. Work made for hire is work prepared by an employee within the scope of his or her employment (as is work prepared by an independent contractor provided that the contractor has signed an agreement acknowledging and agreeing that the work shall be work made for hire). So, if you’re a website designer employed by a design company, the copyright in your work belongs to your employer, not to you. Your employer is the author of your work.

WHAT CAN BE COPYRIGHTED?

Copyright attaches to original works fixed in a tangible form of expression. So, for example, a dance routine created by a choreographer and recorded in writing can be copyrighted because the recording in writing fixes the work in a tangible form of expression. Were the choreographer not to record the routine, however (whether in writing, on videotape or some other tangible form of expression), and instead just kept the routine in his or her head, the routine would not be able to be copyrighted because the routine has not been fixed in a tangible form of expression.

WHAT CAN’T BE COPYRIGHTED?

In addition to works not fixed in a tangible form of expression, other types of works that can’t be copyrighted are titles, names, short phrases, slogans and the like (trademark protection may be available though); ideas (copyright protects only the tangible expression of the idea, not the idea itself); procedures, methods, systems, processes, concepts, principles etc.; and works consisting entirely of information that is common property and containing no original authorship such as calendars and facts of the world.

COPYRIGHTING YOUR WORK

Perhaps the most widely misunderstood aspect of copyright law is that it does not require registration or publication to come into existence. Copyright attaches automatically once a work capable of being copyrighted is “created”. “Created” in this context means when the work is fixed in a tangible form of expression for the first time.

Under the copyright legislation, publication occurs when copies are distributed to the public by way of sale, other transfer of ownership, rental, lease or lending. Note that a mere public performance or display of work does not, of itself, constitute publication. So, just because you have a website available for all the world to see, this does not mean that your website content has been “published” for the purposes of copyright law. On the other hand, though, just because it hasn’t been published, doesn’t mean that it doesn’t enjoy copyright protection!

As you can see from the definition of “publication”, creating and making an e-book (for example) available for sale from your site amounts to publishing in the copyright sense. Once something is published, it is mandatory to deposit two copies in the Copyright Office within three months of publication in the United States for use in the Library of Congress. If you fail to do so, you may be liable for a fine of $250. Failure to deposit does NOT, however, affect whether your work has copyright protection. If you continue to fail to deposit your work after being notified to do so, the fine increases to $2,500. Although there are certain exceptions to the mandatory deposit rule, none of them apply to our e-book example. For a full list of exceptions, see section 202.19(c) of the copyright legislation (37 CFR Ch. II). It’s available online at the United States Copyright Office at http://www.loc.gov/copyright/title37/ . So, if you’re selling an e-book from your site, a set of “how to” reports, or whatever, and you’re the copyright owner, you need to deposit two copies with the Copyright Office.

As we have already seen, copyright springs into existence automatically upon creation of work that is capable of being copyrighted. This is known as common law copyright. In addition to common law copyright, the copyright legislation provides for statutory registration. There are several advantages to registering your copyright. Firstly, it constitutes a public record of your claim to copyright in the subject work. Secondly, registration is a prerequisite to an entitlement to sue for an infringement of your copyright (if the works are of U.S. origin). In other words, if your copyright isn’t registered, you can’t sue if someone uses your work without permission. Thirdly, if you register your copyright within three months after publication or prior to infringement, you’ll be able to seek statutory damages and attorneys’ fees if you bring legal proceedings for infringement. Otherwise, your damages are restricted to actual damages or an account of profits generated by the infringer as a result of the infringement. In many instances of copyright infringement, you simply will not be able to point to a financial loss in a specific amount. After all, if someone copies one of your content webpages but you don’t suffer a financial loss and they don’t obtain an obvious financial advantage, what’s your loss or their gain in financial terms? Registration allows you to recover monetary damages in such circumstances. Fourthly, registration allows the copyright owner to record registration with the US Customs Service for protection against the importation of infringing copies of your work.

For detailed information about how to go about registering your copyright, visit the United States Copyright Office at http://lcweb.loc.gov/copyright/ .

ROLE OF THE COPYRIGHT NOTICE

Although a formal copyright notice is not required, it can be useful. Firstly, it puts the reader or viewer of your work on notice that copyright does exist in the work and that alone may make would-be thieves at least think twice before stealing your work. Secondly, if a copyright notice appeared on work in which your copyright was infringed, then (subject to certain exceptions – see s. 504(c)(2) of the copyright legislation available at the United States Copyright Office website at http://www.loc.gov/copyright/title17/92chap5.html ) the offender can’t claim innocent infringement in mitigation of damages. Thirdly, it makes it easier for someone to track you down and ask for permission to use your work!

The form of the copyright notice for published work is:

2000 Jane Smith or Copyright 2000 Jane Smith or Copr. 2000 Jane Smith.

For unpublished work, the notice should read:

Unpublished work 2000 Jane Smith

DURATION OF COPYRIGHT PROTECTION

For work created after January 1, 1978, the work is automatically protected from creation until 70 years after the death of the author. In the case of joint works, the copyright extends to 70 years after the death of the surviving author. In the case of works made for hire and anonymous/pseudonymous works, copyright endures for 95 years from publication or 120 years from creation, whichever is the earlier.

TRANSFERRING COPYRIGHT

Copyright is a personal property right and can therefore be transferred. A transfer of an exclusive right will not be valid, however, unless it’s in writing and signed by the copyright owner or his/her authorized agent. A transfer of a non-exclusive right need not be in writing.

As copyright is a personal property right, it can be bequeathed by will or pass by operation of the law governing intestate succession (the rules that govern if someone dies without leaving a will).

USING OTHERS’ WORK

So much for protecting the copyright in your own work. What are the limits of how you can use the work of others without infringing *their* copyright?

In short, unless “fair use” applies (discussed below) you will violate the copyright owner’s copyright if you use all or any part of their work (either as is or with trivial changes) in your work without prior permission.

It is not an infringement of copyright, however, to use short quotations from a work for the purposes of criticism, comment, teaching, scholarship or research. Any quotations used must clearly identify the name of the author and the source of the quotation. Just use the same kinds of citations you used in your college papers e.g. ” “this is an example of how to cite a quotation” (Doe, J., “The Work That Is Being Quoted From”, 1988, page 23)” or some other generally accepted form of citation. Note, however, that if your use is not fair use, then merely giving credit to the author of the work won’t protect you.

As for what constitutes “fair use”, this is one of those gray areas that depends on all the circumstances. In general, the factors to be considered include the purpose and character of the use, including whether it is of a commercial or non-profit nature (if you stand to make a profit on the use, the less likely it is that your use will be considered “fair use”); the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for and value of the copyrighted work. For example, if you use a tiny part of a work but that part was, until you used it, confidential information taken from a book that was shortly to be published, that may not be “fair use” because you have effectively undermined the potential market for and value of the book.

As a rough guide, bear the following rules of thumb in mind: first, if you’re creating something new rather than merely copying someone else’s work, your chances of falling within the “fair use” defense are relatively better; second, don’t compete with your source; and third, less is more. The more you take, the less “fair” your use.

FOR WEBMASTERS

Although the above issues relate equally to the online world as they do offline, there are some additional issues that webmasters need to think about in the copyright arena.

Firstly, just because you can download something for free doesn’t, of itself, mean you can redistribute it freely. Clip art is a good example. There are numerous sites that offer free clip art. These sites allow you to download some of their clip art images free of charge. You can use these images for your own purposes in developing your webpages, for example, but just because they’re free does NOT mean you can then turn around and make the images available to someone else for free or otherwise. Under these sorts of download arrangements, you’re given a restricted license only. The same goes for free e-books. Check whether the author of the e-book has granted permission for it to be freely distributed. Most do. Usually you’ll find some reference to further dissemination of the work on the cover or the first page of the e-book.

Secondly, consider not deep linking. Deep linking occurs when you link to another site from your site but, instead of linking to the home page of the other site, you link to a page within the site. Some webmasters object to this because it can confuse the site visitor about exactly whose site it is that they’ve come to. On the other hand, linking to a home page can be inconvenient for the site visitor. I know of one ezine publisher, for example, who frequently includes links to articles written by other people in her ezine. It irks her when people just give their home page URL rather than the URL of the article itself. She reasons, why should her readers have to go hunting for the article? If they’re impressed with the writing, they’ll naturally want to stop and look around the site. Clearly there are both pros and cons of deep linking. Make up your own mind.

Finally, a word about frames. If you use frames on your website so you can display content from other websites without it being obvious to the site visitor that they’ve gone to someone else’s site, this very fact may land you in trouble. If your actions lead the site visitor thinks the content they’re viewing belongs to your site, you’ve probably just contravened the copyright of the owner of the site you’ve linked to with your frame!

Registering your copyright is the first step to protecting the benefits of your hard work and endeavor. There are, unfortunately, plenty of people online today who have somehow got the idea that everything online is free and up for grabs. As a result, it’s more likely than not that one day you will have to grapple with the unpleasant reality that someone has stolen your work. Depending on the nature and extent of the infringement, you may be forced to take legal action. If you haven’t registered your copyright you won’t be able to do that. But more importantly, your work has value. You’ve made an investment in terms of your time, effort and talent. You wouldn’t leave your front door open for thieves to walk in and steal your stereo. You worked hard for the assets you have accumulated. So it is with your creative works. They are as much assets as anything else you own. So get your copyright registered and close the front door to the thieves who would help themselves to what you have worked so hard to create.

2000 Elena Fawkner

Elena Fawkner is editor of A Home-Based Business Online … practical business ideas, opportunities and solutions for the work-from-home entrepreneur. http://www.ahbbo.com/

The Sincerest Form of Flattery … And How to Protect Yourself From It
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