Cameron Miranda
Copyright infringement is a strict liability offence, meaning that the intention to infringe is not considered by courts. Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Copyright holders have the right to control most uses of their works and routinely invoke legal and technological measures to prevent and penalize copyright infringement. To prevent copyright infringement, it is important to understand what copyrights protect and what they do not. Copyright law protects original creations, granting the holder exclusive control over when, how, and by whom their work may be copied, distributed, or exhibited. This includes literary works, paintings, photographs, films, music, and sculptures, among other creative works. However, copyright law generally does not protect the underlying ideas of a creative work or facts. To avoid infringement, individuals should seek permission from the copyright holder and understand the public domain laws for their jurisdiction.
| Characteristics | Values |
|---|---|
| Definition of copyright infringement | "Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner." |
| Copyright holder | Usually the work's creator or a publisher or other business to whom copyright has been assigned |
| Copyright protection | Granted by law for original works of authorship fixed in a tangible medium of expression |
| What copyright protects | Literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture |
| What copyright does not protect | Facts, ideas, systems, or methods of operation |
| Preventing copyright infringement | Using legal and technological measures, direct negotiation, a notice and takedown process, or litigation in civil court |
| Reducing the scope of infringement | Employing "open" licensing strategies that permit certain types of uses under terms that the copyright owner considers reasonable |
| Permission to use copyrighted work | Written permission from the copyright holder, e.g., in the form of a license agreement |
| Public domain | Works that are not copyrighted, often due to age, nature of authorship, or other reasons |
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What You'll Learn
Understand what copyright protects
Copyright is a form of intellectual property that protects original works of authorship. It covers a wide range of creative and expressive works, including audiovisual works (such as TV shows, movies, and online videos), musical compositions, sound recordings, books, poems, paintings, photographs, illustrations, computer programs, blog posts, architectural works, and plays.
Copyright protection is automatic and comes into existence as soon as a work is created and fixed in a tangible form of expression. This means that the work must be captured in a sufficiently permanent medium, such as writing or recording, so that it can be perceived, reproduced, or communicated for more than a short time. While registration with a copyright office is generally voluntary, it is recommended for a number of reasons, including having a public record of copyright ownership and being eligible for statutory damages and attorney's fees in successful litigation.
Copyright holders have the right to control most uses of their works. This includes the right to reproduce, distribute, publicly display, or perform the protected work, or to create derivative works. It's important to note that copyright does not protect ideas, procedures, methods, systems, processes, concepts, principles, or discoveries. Instead, it protects the creative expression of ideas.
In some cases, it is possible to use a copyright-protected work without infringing on the copyright owner's rights. This may include obtaining permission from the copyright holder, usually in the form of a license agreement, or through fair use or fair dealing. Fair use guidelines can vary and may include considerations such as the purpose of the use, the nature of the work, the amount and substantiality of the portion used, and the effect of the use on the potential market for the copyrighted work.
While copyright laws provide a framework for protection, preventing infringement can be challenging, especially in the digital age. Copyright holders can employ strategies such as licensing arrangements, technological protection measures, and legal actions to deter and address infringement.
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Know what isn't protected
Copyright laws do not protect ideas, facts, concepts, or information in the public domain. This includes things like standard calendars, height and weight charts, tape measures, and rulers. While these things are not protected by copyright law, the expression of these ideas, facts, and concepts is protected. For example, a description, explanation, illustration, or database of facts can be protected. This is known as the idea-expression dichotomy.
Similarly, while a mere list of ingredients is not protected by copyright law, a recipe or formula accompanied by literary expression in the form of explanations or directions can be protected. Likewise, while domain names are not protected, original authorship on a website, such as writings, artwork, and photographs, may be protected. Architectural works are also protected by copyright law, but only if they were created on or after December 1, 1990, or if they were constructed by December 31, 2002, based on plans from before December 1, 1990.
Names, titles, slogans, and short phrases are not protected by copyright law, but they may be protected under trademark law. In the case of recipes, if you have secret ingredients that you do not wish to be revealed, do not submit your recipe for registration, as these applications are public records.
In the United States, the Copyright Office does not prosecute those who violate copyright law but assists the Department of Justice with court cases and legal documentation. Copyright holders are usually the creators of the work or a publisher or business to whom copyright has been assigned, and they can invoke legal and technological measures to prevent and penalize copyright infringement. Copyright infringement disputes are usually resolved through direct negotiation, a notice and takedown process, or litigation in civil court. In some cases, copyright owners employ "open" licensing strategies, allowing anyone to use their work as long as they adhere to certain conditions, reducing infringement and the burden on courts.
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Understand 'fair use'
Understanding fair use is essential in navigating copyright laws and preventing infringement. Fair use is a doctrine in United States law that permits limited use of copyrighted material without first acquiring permission from the copyright holder. It serves as a defence against claims of copyright infringement, allowing certain limited uses that might otherwise be considered infringement. The purpose of fair use is to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works.
The concept of fair use originated in common law during the 18th and 19th centuries to prevent copyright law from stifling creativity. It was later enshrined in statutory law with the passing of the Copyright Act of 1976 in the United States. While fair use guidelines provide a flexible framework, there are four key factors that determine whether a particular use of copyrighted material falls under fair use:
- Purpose and Character of Use: This factor considers whether the use is commercial or non-commercial in nature. Generally, commercial use is less likely to be considered fair, while non-commercial use is more favourable. However, as seen in the Campbell case regarding the song "Oh, Pretty Woman", having a commercial purpose does not automatically preclude a use from being considered fair.
- Nature of Copyrighted Work: The type of work being used can influence the determination of fair use. For example, using an unpublished work may weigh against fair use, as seen in Harper & Row v. Nation Enterprises.
- Amount and Substantiality: The quantity and value of the copyrighted material used are considered. Using a small or insignificant portion of the work is more likely to be considered fair use.
- Effect on Market Value: This factor examines the potential impact of the use on the current and potential market for the copyrighted work. If the use harms or is likely to harm the copyright owner's market, it will weigh against fair use.
It is important to note that these factors are not absolute rules, and fair use is determined on a case-by-case basis. Other considerations, such as transformative purpose, educational use, criticism, news reporting, and research, can also influence the fair use determination.
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Use open licensing
Open licensing is a strategy that copyright owners can use to reduce the scope of what is considered infringement. This strategy involves the use of a relatively permissive licensing approach, where the copyright owner publishes and distributes the work with a prepared license that anyone can use as long as they adhere to certain conditions. This approach reduces the burden on courts by permitting certain types of uses under terms that the copyright owner considers reasonable.
There are several well-known open software licenses that can be used, including the GNU General Public License (GPL), MIT License, ISC License, BSD licenses, and Creative Commons licenses. These licenses provide users with legal permission to use and distribute the copyrighted work, without the fear of copyright infringement, as long as they abide by the terms set forth. The terms are typically written in easy-to-understand language, removing the ambiguity that can accompany legal notices.
For example, the MIT License is short and easily understood, and it allows anyone to do anything as long as they keep a copy of the license, including the copyright notice. Similarly, Creative Commons licenses are free tools that allow authors, scientists, artists, students, and educators to easily communicate how much or how little others can use their works. Creative Commons licenses are particularly useful for visual and literary works.
When choosing an open license, it is important to consider the objectives of your project and any dependencies it may have. For instance, if your project uses libraries from the Node Package Manager (npm), you would need to use a permissive license like MIT, Apache 2.0, ISC, or BSD. These licenses allow you to license your project however you want. In contrast, copyleft licenses require closer attention as they have more conditions.
It is also important to note that switching licenses can be complicated, especially if you are not the sole copyright holder. Involving your legal team and considering the impact of the change on your project's users and contributors is crucial. Additionally, some projects may have specific license requirements, such as those imposed by your project's community or your employer's policies.
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Know international copyright laws
International copyright laws are based on treaties and agreements between countries, rather than being universally enshrined in statute. This means that no work will be protected by statute in every country, and protection against unauthorised use in a particular country depends on the national laws of that country.
There are several key international treaties that attempt to ensure uniformity among member states. For example, the US is a signatory to many such treaties, including the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, which has provisions to prevent people from circumventing technological measures that control access to copyrighted works.
The US has also added Section 106A to the Copyright Act to ensure compliance with international treaties, although the scope of moral rights protected is arguably narrower than in other countries. The US's fair use provisions are also broader than those of most other countries.
International copyright laws can be difficult to enforce, and it can be challenging to prove copyright ownership in an international setting. Domestic courts may also be reluctant to enforce international copyright claims, seeing them as a threat to national productivity.
To avoid infringement, it is essential to understand the specific copyright laws of the country in which protection is sought.
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Frequently asked questions
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder.
Copyright law protects any original creation, granting the copyright holder exclusive control over when, how, and by whom their work may be copied, distributed, or exhibited. This includes literary works, paintings, photographs, films, music, choreography, sculptures, and many other creative works.
Copyright law generally does not protect the underlying ideas of a creative work, and it does not protect facts. For example, copyright law does not prevent you from expressing in your own words ideas and facts found in a book or journal.
To avoid infringing on someone else's copyright, you should first understand what copyright laws protect and what they do not. You should also be aware that works on the internet are as copyrightable as any other type of work. You can also register your creative works with the help of an attorney to protect your work from infringement.
If someone infringes on your copyright, you can first try to resolve the issue through direct negotiation or by sending a Cease-and-Desist Letter. If that doesn't work, you may need to file a civil lawsuit against the infringing party. In the lawsuit, you will need to prove that your copyright precedes any usage of the materials by the infringing party. You can typically request a court order demanding the infringing party stop using your copyrighted material and ask for monetary compensation for any harm that has occurred as a direct result of the infringement.
