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June 26th, 2009 // by Jeannine O'Brian

Copyright practices have become a front-burner issue as more creative works are posted on the Web. While the online environment provides an efficient and expedient way to market all kinds of work, once it is posted there is little protection against intellectual property theft. The following the second in a series of articles describing some current thoughts aimed at finding solutions to current copyright practices that can no longer effectively meet the needs of the accelerated evolution of the contents on the world wide web.

The practice of using old culture to create new works is ancient, but the relatively recent development of the Web as a venue for posting creative works has led to an explosion in remix culture.

Thanks to the Web, you can effortlessly find and take, borrow, or steal (as the case may be) existing material for inspiration in your work. Others can also do the same to any original work you may have posted online.

While copyright law provides, at least theoretically, robust protection for creators of all genres, copyrighted work may be legally used in some situations. The tricky part is figuring out what uses are acceptable.

The concept of fair use has been recognized by U.S. courts for about 150 years and was incorporated in the Copyright Act of 1976. The law provides that copyrighted material may be used, without charge or penalty, for the purposes of comment, criticism, news reporting, teaching, scholarship and research. The factors considered in determining whether the use of copyrighted work is fair include

1. the purpose character of the use

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 value of the copyrighted work.

Peter Jaszi, law professor at American University, describes fair use as a balancing tool that allows creators to make new work based on old culture without taking any rights away from a copyright holder. His view of fair use is a far cry from that of James Boyle, (see ‘The Copyright Dilemma’) who argues that current copyright law needs to be completely reworked so that it doesn’t squash collaboration, innovation and creativity.

Regardless, the fair use doctrine leaves much up to court interpretation. In practice, judges have consistently considered the following questions when determining whether a use is fair:

1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Fair use can be seen as a doctrine that keeps copyright law from infringing on the right to free speech provided by the first amendment.

American University’s Center for Social Media tackled the ambiguous issue of fair use for online video by putting together a ‘Code of Best Practices.’ People in a wide variety of industries encounter fair use issues every day without even thinking about them. A code of best practices defines fair use for a particular industry, taking care of some of the question marks created by the fair use doctrine of the Copyright Act of 1976. Visithttp://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/ to read or watch a seven-minute video synopsis of the code.

Sometimes you can use other people’s work without even worrying about fair use. Check out this document created by AU’s Center for social media about freely using online video: http://www.centerforsocialmedia.org/files/pdf/free_use.pdf. You also don’t have to worry about using works in the public domain. The Cornell Law School website provides a chart that can help you decide if a copyright term on a particular work has expired: http://www.copyright.cornell.edu/public_domain/.

Also, keep your eye out for Creative Commons licenses that more and more creators are attaching to their work. These specify how you may or may not use someone a particular work. You may want to consider one of these licenses for your own work post on the Web if you’re concerned about how people will use it.

Sources and more information:

http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/

http://www.centerforsocialmedia.org/files/pdf/free_use.pdf

http://www.copyright.gov/title17/92chap1.html#107

http://www.copyright.cornell.edu/public_domain/

http://malor.wordpress.com/2008/03/04/what-bloggers-should-know-about-copyright-and-fair-use/

http://creativecommons.org/

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June 4th, 2009 // by Jeannine O'Brian

Web Topics

The Copyright Dilemma

Copyright practices have become a front-burner issue as more creative works are posted on the Web. While the online environment provides an efficient and expedient way to market all kinds of work, once it is posted there is little protection against intellectual property theft. The following begins a series of articles describing some movements aimed at finding solutions to current copyright practices that can no longer effectively meet the needs of the accelerated evolution of the contents on the world wide web.

“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” according to the United States Constitution, Article I, Section 8. U.S. copyright law is founded on this constitutional provision. It’s designed to protect original works of authorship including literary, dramatic, musical, artistic and other intellectual works, both published and unpublished, http://www.loc.gov/teachers/copyrightmystery/.

The problem is that intellectual property rights have been expanded such that they can inhibit the progress of science and arts rather than encourage it. This has become a more pointed problem as more works of all genres are posted to the Web where there is no specific way to protect them from theft or to allow creative use of them by others.

James Boyle, co-founder of the Center for the Study of the Public Domain at Duke Law School, wrote The Public Domain: Enclosing the Commons of the Mind about the need to rework the balance between intellectual property rights and the public domain. “Copyright law, in the U.S. and elsewhere, has been created without credible evidence that it’s necessary for innovation,” Boyle explains in his book. (For the online version of the book go to http://www.thepublicdomain.org/download.)

Creative works and innovation are inspired by bits and pieces of what already exists. “We have failed to understand that the public domain, the realm of material that is open for all to share to reuse to repurpose to remix, that that is vital, as vital to creativity, more vital to creativity in many ways, than the special realm we cover with intellectual property rights, copyrights, patents and trademarks,” Boyle said in a talk at the Royal Society for the Encouragement of Arts, Manufactures and Commerce in March. (http://www.thersa.org/events/vision/vision-videos/james-boyle)

A native of Scotland, Boyle is currently a professor of law at Duke Law School. He co-founded Creative Commons, http://creativecommons.org, Science Commons, http://sciencecommons.org, and ccLearn, http://learn.creativecommons.org, all of which aim to facilitate the availability of intellectual and creative works. He has also written several books and numerous articles on intellectual property, internet regulation and legal theory.

Copyright Law: The Facts

The Copyright Act of 1976, which provides the basic framework for current copyright law, gives the owner of a copyright the exclusive power to reproduce the work, to prepare derivative works based on the original, to distribute copies of the work to the public or to transfer ownership of the work, to perform the work publicly, to display the work publicly, and in the case of sound recordings, to perform the work publicly by means of digital audio transmission.

Copyright law protects all original works of authorship that exist in a tangible medium from which the creator’s expression can be perceived directly or by the aid of a machine. Copyright protection is automatic. Neither registration with the Copyright Office nor publication is required. Following the Berne Convention in 1989, authors do not have to include a notice of copyright, which consists of the © symbol or the word ‘Copyright,’ the year of first publication of the work, and the name of the owner of the copyright, to receive copyright protection.

Creators of visual art also have rights of attribution and integrity under copyright law. The right to attribution ensures that artists are identified with the works they create, and the right of integrity helps artists protect their works against modifications and destructions that are prejudicial to the artist’s honor or reputation.

Registration

Copyright protection is automatic, but a work must usually be registered before an infringement suit can be brought. Registration can be completed online or through the mail once an application for each work and a fee of $35 or $45 is paid to The Copyright Office.

The term of federal copyright protection has been extended gradually since 1790 when George Washington signed the first federal copyright bill, which protected books, maps and charts for a period of 14 years. The Copyright Act of 1976 extended copyright protection to the life of the creator plus 50 years, and in 1998 the Sonny Bono Copyright Term Extension Act tacked an additional 20 years onto the period of copyright protection.

“Dead people don’t produce again when you extend their copyrights,” said Boyle, who thinks copyright law has been taken in the wrong direction over the past 50 years. Creative works are lost and forgotten in the time in between their creator’s death and the expiration of the attached copyright protection. Copyright laws also discourage the public from building upon intellectual works in ways that could be beneficial to the useful arts, science and society in general.

Finding Solutions

Creative Commons is a nonprofit organization launched in 2002 that provides free licenses that allow people to share their work as they see fit. Creators can specify what others may do with their work. The Creative Commons license for The Public Domain: Enclosing the Commons of the Mind, for example, tells readers they may copy, distribute, transmit or adapt the work. The license specifies that any work made using parts of the book must be shared under similar terms. Others may not, however, use the book for commercial purposes. The goal of a Creative Commons license is to refine copyright so that works of intellectual property can be linked, creating layers of innovation and collaboration.

Boyle is not the only one who sees the value of protecting the public domain to make way for advancement in all fields. Others include Harvard Law School professor Yochai Benkler who writes in The Wealth of Networks; Trebor Schultz, a writer, founder of the Institute of Distributed Creativity and has worked on other projects to encourage creative collaboration. And, Lawrence Lessig, a professor at Stanford Law School and founding member of Creative Commons. He discusses the gap between the commercial and sharing aspects of the Web in his latest book, Remix: Making Art and Commerce Thrive in the Hybrid Economy.

So what can you do to protect your work once you post it to the Web? And, what can you do creatively with images, music or text you discover on the Web? These have become the key questions as more creative works can be found on the Web. The concept of Fair Use is now being tested every second on the Web and will be explored in the next article in this series.

http://www.archives.gov

http://www.thepublicdomain.org

http://www.copyright.gov/

http://www.thersa.org

http://creativecommons.org

http://www.collectivate.net/

http://remix.lessig.org/

http://www.law.duke.edu/cspd/ and http://www.law.duke.edu/

The Public Domain: Enclosing the Commons of the Mind, James Boyle, 2008, http://www.thepublicdomain.org/download

Jeannine O’Brian is a freelance journalist and contributor to the artdogspot.