Copyright: How Protected is it?

Image taken from http://copyrighttoolkit.com

You already own your own copyright, right? Ever wondered how much of someone else’s work you can fairly copy? What about the other way round, when someone has copied not just the idea, but how you’ve said it?

Copyright regimes in most countries of the world, including the US since 1989, give automatic protection. Most countries have signed either the Berne Convention or Universal Copyright Convention (UCC) or both. In the US and Britain you own the copyright without having to register or comply with formalities. If you don’t want your copyright, opt out. In practice, it is easier to use Larry Lessig’s brainchild, the Creative Commons Licence so others may use your work. Should you not do that, in the UK and the USA copyright lasts for your lifetime plus seventy years. (This is true for literary, dramatic, musical or artistic works. Computer generated work is copyrighted for fifty years from creation.)

It’s not necessary to use the © copyright symbol, year of publication and name of the copyright holder. But it’s a good habit to get into and is needed in those states who are members of the UCC but not of the Berne Convention. It also helps assert your moral rights, which is why book authors add: ‘Writer’s Name. Author asserts his/her moral right to be identified as the author of this book’.

So, what economic rights do you enjoy as a copyright holder? Four.

• Exclusive right to reproduce the copyrighted work
• Exclusive right to make modifications of the copyrighted work, commonly known as the right to make derivative works
• The right to control distribution, exportation and importation of copies of the work
• The right to control public performances or public displays of the work.

In 1963 a song called, ‘He’s So Fine’ written by Ronald Mack, was performed by The Chiffons. Beatles member, George Harrison, heard the song, but wasn’t aware that it had registered in his creative neurons. Six years later he composed, ‘My Sweet Lord,’ a remarkably similar tune. Bright Tunes Music, Mack’s assignee, sued Harrison and won. It was accepted that Harrison hadn’t copied it deliberately, but he still lost.

It is said that there are only seven themes for novels, so how comes we can copy a theme and get away with it, but not copy a tune and a few lyrics? The short answer is that ideas and facts cannot be protected by copyright. What is protected is their expression.

So, what do you do if you are sure someone has copied your work? Well, you prove it. But Michael Crichton was constantly accused of stealing someone else’s work and, as far as I’m aware, never lost a law suit.

How to prove it: Four techniques, but all must result in a fixed copy of the work being available.

• Introduce direct evidence of copying.
• Show how your work was widely available and point out the similarities between your work and the alleged copy of your work, as happened with George Harrison. (Probative similarity.)
• Striking similarity. Too much to be a coincidence, regardless of how likely it is that lots of people must have heard or read it. This point and the one above are often bundled together.
• Common Errors. For example, travel guides have been known to deliberately include fictitious hotels that are also copied by the unscrupulous. Sometimes the mistakes and typo’s really are unintentional, but repeated in the copied work and used to show how it must be copied.

Cablevision is a leading case in US law which highlights the differences between digital and hard copy. Where there’s no copy there’s no offence. It seems to work a bit like FilmOn TV, a US registered company which allows viewers in Spain to watch British TV over the internet. The key legal point is that they violate the US Copyright Statute but can be excused under the US Fair Use Doctrine. This is because a single stream of data is split, buffered, reformatted and stored. Data is not kept for longer than 0.1 of a second before sending it to a server which has a further buffer that again does not hold the information for long, never more than 1.2 seconds of programming at any one time. The US Court of Appeal found in the Cablevision case that no copy was ever made, because to do so would require ‘a period of more than transitory duration.’

Hmmm.

Cases like Cablevision are rare. It is much more common to fight over whether the character and amount copied infringes the copyright.

In 1930 a US Judge, Learned Hand, (that really was his name), devised a test to apply when one literary work was too close to that of another. He said, ‘we are rather concerned with the line between expression and what is expressed.’

Fair Use and Fair Dealing

The US has the Fair Use Doctrine, Brits have Fair Dealing and both defences allow research and private study, criticism or review, or news reporting.

But What Isn’t Fair?

Factors that have been identified by the courts as relevant include:

• does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair
• is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used.

Justice Petersen presided over a leading case in England in 1916 and said, ‘what is worth copying is prima facie worth protecting.’ His words have been used ever since.

In Britain, legislators deem less than 400 words of continuous text or 800 non continuous excerpts to be fair. (The 10% rule is more of an urban legend in the UK). Obviously, if someone were to ruin the story  in a whodunnit in just a few words this would not be fair.

Licence to Photocopy

In the UK , the Copyright Licensing Agency sells the right to photocopy parts of a work.

It licenses:

• Either 5 per cent or one chapter, whichever is greater
• Periodicals. One article from any one issue
• A short story or poem not exceeding 10 pages in length.

http://www.cla.co.uk/

An excellent website is http://copyrighttoolkit.com

When permission is required, check out the Writers Artists and Their Copyright Holders database. It can save a lot of time. http://norman.hrc.utexas.edu/watch/

Hope this helps,

Tracy Thomson
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