Copyrights on the Internet...Protecting Yourself

The Basics of Copyright Law

The Copyright Law is a federal law which provides copyright owners with the exclusive right to reproduce, distribute, publicly perform and display a copyrighted work and to prepare other works which are derived from the copyrighted work. Works protected by the copyright include literary works, advertising copy and design, sculptures, music, computer programs, visual art, architectural works and photographs. The current Copyright Act was written in 1976, long before the internet was a reality. As a result, the Copyright Act is not tailored to Internet issues, but certainly applies to many activities associated with the Internet. To date, only a few court decisions have addressed copyright issues pertaining to the Internet and it is likely to be many years before there is a body of law specific to the Internet.

Obtaining copyright protection is quite simple. Copyrights exist from the moment a work is created, without any formal action on the part of the author. Although there is a copyright registration procedure, registration is not required to obtain copyright protection. Copyright infringement occurs when someone other than the copyright owner performs one of the exclusive rights afforded the copyright owner, most typically an unauthorized reproduction or distribution of the copyrighted work. The penalties for copyright infringement vary, but can include a court injunction against further infringement, destruction of infringing materials, money damages, and in usual cases, criminal penalties.

There are some limits, on copyright protection. Most importantly, copyright protection is limited to a particular expression of an idea, not the idea itself. For example, the idea of a computer program which manages finances is not subject to copyright protection. However, the program code of QUICKENš, a particular software program, is protected by copyright. Therefore, while copying the QUICKENš program without permission would no doubt constitute copyright infringement, writing your own program which accomplishes all the same tasks would not be an infringement. In the advertising world, ideas are often "borrowed" and the Copyright Act does not provide a remedy unless the borrowing extends beyond the idea to particular ad copy or design.

The Most Popular Copyright Misconceptions

MISCONCEPTION: If it is on the Internet, it is in the public domain. Simply placing material on the Internet does not result in the copyright owner giving up any copyrights or acquiescing to copying of the material by the third parties. Rather, placing copyrighted material on the Internet merely makes the materials accessible to many more people and, as a practical matter, the material is more likely to be infringed. Copyrighted works today typically fall into the "public domain" only when the copyright owner explicitly states that the material is to be in the public domain, or the term of copyright ends. The term of copyright for works created after January 1, 1978 is either the life of the author plus fifty years, or the shorter of seventy-five years from publication or one hundred years from creation of the work, depending on the circumstances surrounding creation of the work. In general, you can only assume that copyright protection has expired if the work was published before 1921.

Many people do, however, put things on the Internet with the expectation and desire that the copyrighted material will be downloaded or otherwise copied. In general, such material contains an explicit license to reproduce the copyrighted work, including any particular limitations on the license to reproduce. For example, the license may provide that you may reproduce the work for your own use only, for teaching purposes, or for distribution to a limited group of people. The user of such a copyrighted work should not exceed the specific limits of the license without the permission of the copyright owner.

MISCONCEPTION: If I acknowledge the source of the material, it is not an infringement? Acknowledging the source of a copyrighted material when reproducing it does not absolve the copyright owner from infringement. As a practical matter, an acknowledgment could result in the copyright owner not taking any action to stop the infringement because the owner appreciates the publicity of the unauthorized reproduction. Alternatively, the acknowledgment may draw the copyright owner's attention to the fact that the copyrighted work has been infringed. Obtaining the premission of the copyright owner is the proper course of action.

MISCONCEPTION: Since there is no copyright notice, the material is not protected by copyright. As of March 1, 1989, copyright notice is not required to obtain or maintain copyright protection. Although a copyright notice provides some legal benefits and therefore should be used, the lack of a copyright notice does not affect the copyright status of a work. Accordingly, the most prudent course of action is to assure that all works are subject to copyright protection. If you want to reproduce, modify, distribute, publicly display or perform a third party's work, receiving permission to do so is the only guarantee of non-infringement.

MISCONCEPTION: Since I am using the copyrighted material for a "good purpose," I am not infringing. Often, those who want to reproduce a copyrighted work believe that such reproduction is permissible because they are reproducing it for a good purpose, such as fundraising for a non-profit organization, educating or training employees or in-house research. Although the Copyright Act does provide a "fair use" exception to copyright infringement, the application of the exception is made on a case-by-case basis by the courts through application of several factors. These factors include the amount and substantiality of the work which is taken, the purpose and character of the use, the nature of the copyrighted work and the effect on the potential market for the work. In the past, the exception has been sparingly applied by the courts and most commercial uses, as compared to news reporting or non-profit educational uses, are not found to warrant application of the exception. Relying on the "fair use" exception to infringement is generally risky and often is best done only with the advice of legal counsel.

What Internet Users Need Yo Know About Copyright

Whether you are putting things on the Internet or taking things off the Internet, the general principles of copyright law set forth above apply. If you are putting materials on the Internet, be aware that your materials will be accessible to many people as a forum where copying is easy to accomplish. Copyright owners should identify their materials subject to copyright protection by using a copyright notice consisting of the word "Copyright" or the abbreviation "Copr." or "©", followed by the year in which the work was first published, followed by the name of the copyright owner. In addition, an explicit warning not to copy, or explaining the limits of permissible copying, is advisable, e.g., "The following is protected by copyright and may not be copied without the express written permission of the copyright owner."

In addition to copyright notice, copyright registration is advisable in that it provides some specific legal benefits should an infringement occur. Moreover, the copyright registration process is fairly simple and registration forms can be obtained for free by calling the U.S. Copyright Office in Washington, D.C. and on the internet at http://lcweb.loc.gov./copyright/circs.

If you are taking material off the Internet, the general rule is to ask the permission of the copyright owner before reproducing, distributing, modifying or publicly displaying or performing a work, unless an explicit license is already provided. Technically, any downloading of a work from the Internet may constitute copyright infringement, and downloading is particularly likely to constitute infringement if the work is then used in a commercially relevant manner.

Finally, if your copyrighted materials are put on the Internet, copied from the Internet, or otherwise reproduced or publicly distributed without your permission, you have several options. If for some reason you do not find the copying objectionable, you can do nothing and still maintain your right to object to other infringements. However, you may want to contact the infringer and provide your express permission with some specific limitations on the extent of copying you want to permit. Second, you can contact, either yourself or through an attorney, the infringer and request that the unauthorized copying be immediately discontinued. In some cases, requesting payment of monetary damages and the destruction of infringing copies may also be appropriate. Third, particularly if the infringer will not voluntarily discontinue the unauthorized copying, the filing of a lawsuit may be necessary.

In conclusion, the basic tenets of copyright law will be applied in connection with use of copyrighted material on the Internet. Internet users need to have a basic familiarity with copyright as it exists today. However, time and continued use of the Internet may lead to the creation of new laws specific to the problems presented by the Internet.

Sabrina Stavish, Attorney, Law Firm of Sheridan Ross, Denver