It May Be Free to Read—It Is Not Free to Take

And so we return to the issue of copyright today because for the last three days I have been dealing with issues of copyright infringement. It’s not fun.

Rather than relate tales that are rather high up on the frustration meter, I thought it might be beneficial to review some copyright issues that we confront when we use the Internet and certainly when we download something from the Internet should understand. Of course I am not a lawyer so you should not consider this to be legal advice, but I am a firm believer in the importance of copyright in encouraging the creation of new works. 

First, in the United States, copyright is a form of protection automatically given by law (Title 17 of the U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other works. Copyright protection extends to both published and unpublished works. It is illegal for anyone to infringe any of therights provided by the copyright law to the owner of the copyright, but it is important to be aware that those rights are not unlimited.

Probably the most important limitation is that of “fair use,” which is in the form of a “compulsory license” to reproduce or copy a limited amount of the material. There are four factors in determining whether a particular use is fair laid out by the Copyright Act:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the 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

Publishers and publicists are aware of this, which is why you will see only portions, often interspersed with ellipses, of book and movie reviews quoted in publicity materials. But a number ofpeople who use the Internet believe that because something is free to read it is also free for the taking.

Wrong!

Unfortunately, the fair use concept can be ambiguous and not many of us have copyright lawyers at our beck and call to help us to figure out when a use is a fair use and when it is an infringement. Even those of us who do have lawyers often find that they speak in terms of “probably” and “likely” and “maybe” when they speak of fair use. There do not appear to be any blanket rules for determining fair use, at least based on my non-lawyer’s reading of the Copyright Office website. Indeed, depending on what material is to be copied, I am fairly certain that Fair Use standards can vary widely. Using one line from a song or poem could be fair use, or it might not be depending on the length. Using a single paragraph from a ten-paragraph review might be fair use or it might not. Would two paragraphs be? It’s hard to say. And quoting from a book—as many reviewers are wont to do—is tricky. I’ve used as many as four contiguous paragraphs from a book in a review so I could show the author’s voice. Was I getting close to the line? Perhaps. But I didn’t profit from it, and it certainly would be arguable were the publisher to question my use of those paragraphs.

Those of us who write professionally don’t tend to willfully infringe on the copyrights of others for the most part. To do so is damaging to our credibility and our reputations. When writers do cross the line, however inadvertently, they almost always are apologetic and quick to correct the problem. The trouble occurs with those who believe they have the right to take and use anything online for their personal use, whether photographs, blog posts, newspaper articles, music, or anything else protected by copyright. Some feel that if they credit the source or link back to the original source then that somehow negates their actions.

It does not. Credit must be given to the original creator, but fair use rules apply in all cases. At BiblioBuffet, we take copyright seriously. For example, I link to the original material in the Imaging Books & Readng portion of the weekly Editor’s Letter rather than “borrow”the image and include it on our page.

The U.S. Copyright Office has a fabulous website where you can learn the basics of copyright law. It is a marvel of clarity and usefulness for everyone. All creators of original material should thoroughly understand copyright.  Taking someone’s images, coloring them in Photoshop, and selling them is theft. Downloading songs that haven’t been paid for and that were not meant to be distributed free of charge is theft. Copying and pasting a BiblioBuffet column into a blog is theft. All of these things, and more, are available to us to enjoy via this wonderous thing called the Internet. And many if not most are free. The key, however, is that they are free to enjoy, not to take. And if you want to “take” them, then ask. Maybe the answer will be yes. Maybe it will be “yes, the cost is . . . .” Or maybe it will be “no, but thank you for asking.” Honor that. Respect that. It’s all work on someone’s part, and all work deserves to be valued.

For more information on copyright, visit the U.S. Copyright Office (linked above). An excellent website about electronic plagiarism can be found at Plagiarism Today.

Credit for help with this post goes to BiblioBuffet contributor, David G. Mitchell, whose law practice includes intellectual property, contract negotiation, publishing, and more.  

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