Original-author: brad@clari.net (Brad Templeton)
Archive-name: law/copyright/myths/part1
Last-change: 16 Oct 1995 by netannounce@deshaw.com (Mark Moraes)
Changes-posted-to: news.misc,news.answers

10 Big Myths about copyright explained
by Brad Templeton


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

This was true in the past, but today almost all major nations follow the Berne copyright convention. For example, in the USA, almost everything created privately after April 1, 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people's works is that they are copyrighted and may not be copied unless you know otherwise. There are some old works that lost protection without notice, but frankly you should not risk it unless you know for sure.

It is true that a notice strengthens the protection, by warning people, and by allowing one to get more and different damages, but it is not necessary. If it looks copyrighted, you should assume it is. This applies to pictures, too. You may not scan pictures from magazines and post them to the net, and if you come upon something unknown, you shouldn't post that either.

The correct form for a notice is:

"Copyright by "
You can use C in a circle instead of "Copyright" but "(C)" has never been given legal force. The phrase "All Rights Reserved" used to be required in some nations but is now not needed.

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

False. Whether you charge can affect the damages awarded in court, but that's essentially the only difference. It's still a violation if you give it away -- and there can still be heavy damages if you hurt the commercial value of the property.

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

False. Nothing is in the public domain anymore unless the owner explicitly puts it in the public domain(*). Explicitly, as in you have a note from the author/owner saying, "I grant this to the public domain." Those exact words or words very much like them.

Some argue that posting to Usenet implicitly grants permission to everybody to copy the posting within fairly wide bounds, and others feel that Usenet is an automatic store and forward network where all the thousands of copies made are done at the command (rather than the consent) of the poster. This is a matter of some debate, but even if the former is true (and in this writer's opinion we should all pray it isn't true) it simply would suggest posters are implicitly granting permissions "for the sort of copying one might expect when one posts to Usenet" and in no case is this a placement of material into the public domain. Furthermore it is very difficult for an implicit licence to supersede an explicitly stated licence that the copier was aware of.

Note that all this assumes the poster had the right to post the item in the first place. If the poster didn't, then all the copies are pirate, and no implied licence or theoretical reduction of the copyright can take place.

(*) Copyrights can expire after a long time, putting something into the public domain, and there are some fine points on this issue regarder older copyright law versions. However, none of this applies to an original article posted to USENET. (Back).

Note that granting something to the public domain is a complete abandonment of all rights. You can't make something "PD for non-commercial use." If your work is PD, other people can even modify one byte and put their name on it.

4) "My posting was just fair use!"

See other notes on fair use for a detailed answer, but bear the following in mind:

The "fair use" exemption to 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. Intent, and damage to the commercial value of the work are important considerations. Are you reproducing an article from the New York Times because you needed to in order to criticise the quality of the New York Times, or because you couldn't find time to write your own story, or didn't want your readers to have to pay to log onto the online services with the story or buy a copy of the paper? The former is probably fair use, the latter probably aren't.

Fair use is almost always a short excerpt and almost always attributed. (One should not use more of the work than is necessary to make the commentary.) It should not harm the commercial value of the work (which is another reason why reproduction of the entire work is generally forbidden.)

Note that most inclusion of text in Usenet followups is for commentary and reply, and it doesn't damage the commercial value of the original posting (if it has any) and as such it is fair use. Fair use isn't an exact doctrine, either. The court decides if the right to comment overrides the copyright on an indidvidual basis in each case. There have been cases that go beyond the bounds of what I say above, but in general they don't apply to the typical net misclaim of fair use. It's a risky defence to attempt.

5) "If you don't defend your copyright you lose it."

False. Copyright is effectively never lost these days, unless explicitly given away. You may be thinking of trade marks, which can be weakened or lost if not defended.

6) "Somebody has that name copyrighted!"

You can't "copyright a name," or anything short like that. Titles usually don't qualify -- but I doubt you may write a song entitled "Everybody's got something to hide except for me and my monkey." (J.Lennon/P.McCartney)

You can't copyright words, but you can trademark them, generally by using them to refer to your brand of a generic type of product or service. Like an "Apple" computer. Apple Computer "owns" that word applied to computers, even though it is also an ordinary word. Apple Records owns it when applied to music. Neither owns the word on its own, only in context, and owning a mark doesn't mean complete control -- see a more detailed treatise on this law for details.

You can't use somebody else's trademark in a way that would unfairly hurt the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark's good name. For example, if I were giving advice on music videos, I would be very wary of trying to label my works with a name like "mtv." :-)

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

Copyright law is mostly civil law. If you violate copyright you would usually get sued, not charged with a crime. "Innocent until proven guilty" is a principle of criminal law, as is "proof beyond a reasonable doubt." Sorry, but in copyright suits, these don't apply the same way or at all. It's mostly which side and set of evidence the judge or jury accepts or believes more, though the rules vary based on the type of infringement. In civil cases you can even be made to testify against your own interests.

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

Actually, recently in the USA commercial copyright violation involving more than 10 copies and value over $2500 was made a felony. So watch out. (At least you get the protections of criminal law.) On the other hand, don't think you're going to get people thrown in jail for posting your E-mail. The courts have much better things to do than that. This is a fairly new, untested statute.

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

It's up to the owner to decide if they want the free ads or not. If they want them, they will be sure to contact you. Don't rationalize whether it hurts the owner or not, ask them. Usually that's not too hard to do. Time past, ClariNet published the very funny Dave Barry column to a large and appreciative Usenet audience for a fee, but some person didn't ask, and forwarded it to a mailing list, got caught, and the newspaper chain that employs Dave Barry pulled the column from the net, pissing off everybody who enjoyed it. Even if you can't think of how the author or owner gets hurt, think about the fact that piracy on the net hurts everybody who wants a chance to use this wonderful new technology to do more than read other people's flamewars.

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

To have a copy is not to have the copyright. All the E-mail you write is copyrighted. However, E-mail is not, unless previously agreed, secret. So you can certainly report on what E-mail you are sent, and reveal what it says. You can even quote parts of it to demonstrate. Frankly, somebody who sues over an ordinary message might well get no damages, because the message has no commercial value, but if you want to stay strictly in the law, you should ask first. On the other hand, don't go nuts if somebody posts your E-mail. If it was an ordinary non-secret personal letter of minimal commercial value with no copyright notice (like 99.9% of all E-mail), you probably won't get any damages if you sue them.

----------------- In Summary ---------------

These days, almost all things are copyrighted the moment they are written, and no copyright notice is required.

Copyright is still violated whether you charged money or not, only damages are affected by that.

Postings to the net are not granted to the public domain, and don't grant you any permission to do further copying except perhaps the sort of copying the poster might have expected in the ordinary flow of the net.

Fair use is a complex doctrine meant to allow certain valuable social purposes. Ask yourself why you are republishing what you are posting and why you couldn't have just rewritten it in your own words.

Copyright is not lost because you don't defend it; that's a concept from trademark law. The ownership of names is also from trademark law, so don't say somebody has a name copyrighted.

Copyright law is mostly civil law where the special rights of criminal defendants you hear so much about don't apply. Watch out, however, as new laws are moving copyright violation into the criminal realm.

Don't rationalize that you are helping the copyright holder; often it's not that hard to ask permission.

Posting E-mail is technically a violation, but revealing facts from E-mail isn't, and for almost all typical E-mail, nobody could wring any damages from you for posting it.


Permission is granted to freely copy this document in electronic form, or to print for personal use. If you had not seen a notice like this on the document, you would have to assume you did not have permission to copy it.
This document is still protected by you-know-what even though it has no copyright notice.

It should be noted that the author, as publisher of an electronic newspaper on the net, makes his living by publishing copyrighted material in electronic form and has the associated biases. However, DO NOT E-MAIL HIM FOR LEGAL ADVICE; for that use other resources or consult a lawyer. Also note that while most of these principles are universal in Berne copyright signatory nations, some are derived from Canadian and U.S. law. This document is provided to clear up some common misconceptions about intellectual property law that are often seen on the net. It is not intended to be a complete treatise on all the nuances of the subject. A more detailed copyright FAQ, covering other issues including compilation copyright and more intricacies of fair use is available in the same places you found this note, or for FTP at rtfm.mit.edu/pub/usenet-by-group/news.answers/law/copyright/faq. Also consider the gopher site gopher://marvel.loc.gov/11/copyright for actual statutes. Another useful document is at http://www.eff.org/pub/CAF/law/ip-primer.

This FAQ can be found at http://www.clari.net/brad/copymyths.html.