Kate ([info]kate_nepveu) wrote,
@ 2006-08-11 07:04:00
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Entry tags:law

Copyright basics

I am strongly considering writing a "you may not discuss copyright unless you can answer these questions correctly" thing—maybe hand-roll a quiz on steelypips, maybe just write it out here, I don't know.

I know there are copyright myth and FAQ pages out there, and I'll be looking at those, but I'd also like you all to tell me what particular errors you see come up a lot during discussion. Off the top of my head, there are the ones I can think of:

  • Whether you can copyright:
    • ideas
    • characters
    • titles
    • images
  • Registration of copyrights:
    • whether you have a valid copyright without registering
    • what it does
    • mailing your document to yourself
  • It automatically is/isn't fair use if:
    • money is being made
    • money isn't being made
    • credit is given
  • What fair use is
  • What rights are encompassed by copyright
    • Especially basing works on other works
  • Defending copyright
  • When copyrights expire

I know I thought of more while trying to fall asleep last night, but I can't think of them at the moment, and the dog is demanding her morning walk.

I'm also contemplating an "advanced" or "so you want to call yourself an expert" section, but that might be more trouble and snark than it's worth, since I am not an expert.

The plan for this to be primarily focused on text, but [info]telophase, can you link me your thing about copyright for DeviantArt? And do you all think it's worth delving into the area of music—performances, covers, and so forth?

So, tell me: what else should people be required to understand before they discuss copyright?


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[info]cheshyre
2006-08-11 11:14 am UTC (link)
what else should people be required to understand before they discuss copyright?

Since it's the issue du jour in fandom, the difference between copyright and plagiarism. There's no legal definition of plagiarism, because plagiarism isn't written into law; plagiarism is not dependent upon copyright -- one can plagiarize something that's public domain, etcetera.

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[info]kate_nepveu
2006-08-11 01:35 pm UTC (link)
Yes, on reflection I do think this is a matter that comes up more often than my first thought--I didn't want to include it *just* because it was the issue du jour.

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[info]rachelmanija
2006-08-11 09:32 pm UTC (link)
I think that would be useful. So, if plagiarism isn't illegal, then how are lawsuits over plagiarism being argued? Is it just that the person who was plagiarized can claim that they are owed any money that was gained by the thing that plagiarized them?

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[info]agrumer
2006-08-11 12:13 pm UTC (link)
Whether they know that copyright, patent, and trademark are three different things, and what the basic differences are.

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[info]kate_nepveu
2006-08-11 01:35 pm UTC (link)
Good one, thanks.

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[info]kgbooklog
2006-08-11 12:39 pm UTC (link)
What is the definition of "derivative work"? How do you distinguish fanfic from parody?

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[info]kate_nepveu
2006-08-11 01:33 pm UTC (link)
Heh. From the way you phrase that second question, I suspect you're not going to like my answer.

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[info]jonquil
2006-08-11 01:32 pm UTC (link)
Plagiarism is not, per se, illegal.

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[info]kate_nepveu
2006-08-11 01:34 pm UTC (link)
Yeah, at first I thought I'd skip plagiarism as being just the issue du jour, but on reflection I do think it comes up more frequently.

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[info]scifantasy
2006-08-11 01:57 pm UTC (link)
Um. I'm getting a few ideas, but a bunch of them are probably out of the scope of this document...

What about a quick definition of the public domain, under the "when copyrights expire" section?

A few words on the biggest controversies in copyright law (the Disney-based extension acts, for example)?

And then maybe "to learn more" links section...

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[info]kate_nepveu
2006-08-11 03:30 pm UTC (link)
Yes, public domain is implicit in the expiration.

I was planning a short section on the statutory basis of copyright, which would go here; I guess the extension of copyright comes up enough that something on the Supreme Court decision should be included too.

Thanks.

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[info]thormation
2006-08-11 02:02 pm UTC (link)
Don't forget some essential knowledge of the origins of copyright, both in British common law, and later in the US Constitution. Also someone who is intellegently discussing copyright should know what powers and limitations Congress has regarding copyright, and how and when they have exercised these powers.

They should also have a fair understanding of "public domain", the Berne Conventions, parody, Creative Commons Copyrights, the DMCA, the Sonny Bono Copyright Extention Act or 1998, Eldred v. Ashcroft, and the difference between theft and copyright violation.

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[info]kate_nepveu
2006-08-11 03:32 pm UTC (link)
Check to most of those. I'm not really sure that Creative Commons is necessary--what about them do you see coming up in discussion?

I'm not touching the difference between theft and copyright violation, because while I agree, that is an opinion and not a legal fact.

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[info]readsalot
2006-08-11 02:26 pm UTC (link)
Everyone should read Brad Templeton's 10 Big Myths about copyright explained. He originally wrote it in 1994, but it looks like he made some revisions in 2004.

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[info]kate_nepveu
2006-08-11 03:33 pm UTC (link)
Yup, that was going to be one of my sources. Thanks.

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[info]telophase
2006-08-11 02:27 pm UTC (link)
It's over here. I suggest looking through the comments - there's several ... interesting ... takes on it in there. I'm especially thinking of the comenter who, when I asked for citations for her stance, linked me to a 14-page single-space LJ entry that she'd written instead of to court cases or laws or legal opinions, like I was expecting to see.

I see this idea primarily in the youngest people online, and in relation to scanned artwork they see online or to music or software downloads, but it bears making explicit: "If it was illegal, it wouldn't be available, right?"

And the idea that since doujinshi are tolerated by most rights-holders in Japan, they're legal.

I was surprised to find out that the mail-it-to-yourself thing might actually be recommended in the UK, which may explain part of why it's so often given as misinformation over here: because it's good advice in the UK and the people passing the tidbit on don't realize that the person who told them was from the UK or that the laws and practices are not the same.

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[info]kate_nepveu
2006-08-11 03:34 pm UTC (link)
Thanks. Yes, I saw that link when it was originally posted, and my eyes crossed and I jumped away.

Good point about the UK and the explicit available/legal thing.

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[info]montoya
2006-08-11 03:01 pm UTC (link)
What's the DMCA, and what does it change?

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[info]kate_nepveu
2006-08-11 03:34 pm UTC (link)
Arrgh. I didn't want to have to touch that, but I guess it does come up.

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[info]malsperanza
2006-08-11 03:07 pm UTC (link)

~a huge one, and almost impossible to summarize: What are the differences between US law, UK law, and EU/Other law? When does a national legal regime apply and when do international rules apply? How does the international nature of the Internet fit in with these nationally based legal structures?

~What constitutes "publication" in law? I.e., is something published if it is posted on the Internet for 24 hours?

~What is a Takedown Notice and how does it work?
Corollary a: How do I send one?
Corollary b: What do I do if I receive one?

~What is a Cease & Desist letter and how does it work?
Corollary a: How do I send one?
Corollary b: What do I do if I receive one?

~What the function and purpose of a permission/clearance process is, and when it is/is not a) required by law, b) a best ethical practice (whether or not required by law); what rights or permissions such a process does/does not actually convey

~In addition to the distinction between Copyright, Patent, and Trademark, you could add: Right of Publicity (which would be useful in the fandoms that use real-life celebrities in fics)

~What constitutes a correct citation. This is a huge aspect of the plagiarism debate and is very contextual, so a range of answers would be useful

~on the definition of "derivative" I'd add: the distinction between "derivative" and "transformative" and definitions of each

~distinction (in law) between parody and satire

But lots of these questions are answered with great clarity and in a very up-to-date way here:

http://fairuse.stanford.edu/

Especially its discussion of Fair Use:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html



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[info]kate_nepveu
2006-08-11 03:37 pm UTC (link)
Jurisdictions: I think it's enough to say that there are differences, maybe? And highlight a couple of the major ones (the moral rights thing, for instance).

Are takedown and cease & desist letters really that often the subject of myths in discussions?

I don't want to go into plagiarism that much, just copyright.

Parody v satire might be a little advanced for "you may only talk about copyright if you know".

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[info]malsperanza
2006-08-12 01:41 am UTC (link)
Jurisdictions are sheer hell, but I'd recommend including something because fanfic is published internationally on the Net, & because fair use/fair dealing/moral rights exist only in national regimes but get cited as if they protected Internet-based interests. But since there seem to be no practicable solutions to the problem of jurisdictions, you're probably right & it's enough to say that the differences exist and may have consequences.

The thing about takedowns and C&Ds is that people tend to think that they must be obeyed and don't know what the other options are. I think there are many myths about that--I see quite a lot of confusion in the work I've done with the Chilling Effects Clearinghouse and the EFF.

Parody v. Satire cracks me up--I keep picturing the Brethern debating it as if they were the Yale English dept. I mentioned it because parody is one of the main fanficcers' defenses, and I'm not sure it applies as broadly as ficcers would like to think. But probably just a basic understanding of the 4 factors of fair use would be more than enough.

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[info]desdenova
2006-08-11 03:34 pm UTC (link)
Pointing out that definitions of "fair use," "derivative works," and suchlike are *complicated* and not totally black-and-white (as anyone can see from reading the links posted by telophase and malsperanza), which is why people argue so damn much about it.

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[info]kate_nepveu
2006-08-11 03:39 pm UTC (link)
That would be what the "automatically" in my list is getting at, yes. Fair use especially.

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[info]rachelmanija
2006-08-11 06:45 pm UTC (link)
I would appreciate that, as people are contradicting each other in my LJ, despite my specific statement that I was not going to discuss legal issues because I don't know what they are, and I can't tell who's right because I don't know what they are.

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[info]kate_nepveu
2006-08-11 06:57 pm UTC (link)
Okay, thanks for the encouragement. And I see fair use is the main source of disagreement, which doesn't surprise me.

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[info]telophase
2006-08-11 08:28 pm UTC (link)
In my previous job I had to deal with prima donna professors, who were under the impression that their status as professors made every act they did with our slides automatically educational use. I had one try to argue with me that using a slide of a church's interior in an article he was publishing counted as educational use (we had no attribution for where the slide was purchased, other than it was purchased, so we had no way of tracing the copyright owner).

Luckily, that was short-circuited when another prof looked over his shoulder and said that he had taken a much better photograph of the church when he was in Rome and that he was welcome to use it.

I really don't know who I'd rather deal with: fans trying to argue that their slash opus is legal under fair use, or professors. Seems like a punishment either way.

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[info]malsperanza
2006-08-12 01:45 am UTC (link)
There's some good legislation pending in Congress to address orphan copyrights, which would help your poor beleaguered professor.

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[info]em_h
2006-08-11 11:48 pm UTC (link)
Yeah, I'm sorry about that, cause I kind of started it.

Also, I probably didn't express myself with as much clarity as I should have.

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[info]limina
2006-08-11 08:18 pm UTC (link)
http://creativecommons.org/

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[info]rilina
2006-08-12 03:20 pm UTC (link)
Have you seen this post?
http://shadowkat67.livejournal.com/203916.html

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[info]kate_nepveu
2006-08-12 06:25 pm UTC (link)
Nope, but I'll take a look. Thanks.

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(squee, squee, SQUEE!)
[info]angelhedgie
2006-08-17 09:07 am UTC (link)
Okay, now that's out of my system...

Thank you, Kate, for saying all this. Being a programmer, I often get to read the diatribes of the unwashed geek masses who seem to think that copyright is this evil, evil thing (except when they're using...ahem, "subverting" it). Personally, I'd like you to do some of these, but they might be a tad esoteric (not to mention not quite in your focus):

Why The RIAA, MPAA, and BSA Are Red Herrings: You'll often see people wo argue against copyright rail against these organizations - they do it because it's a good way to both emotionally charge the issue and evade serious questions about their underlying arguments.

What Is Moral Copyright (And Why We Need It In The US): Many other nations recognize, in addition to economic copyright, a concept called moral copyright - the author's right to dispose of their work according to their own personal beliefs. The US, sadly, does not recognize moral copyright, though.

Who, Exactly, Is Copyright For?: There's a lot of people who seem to think copyright is just for companies. That's not a good thing.

I do think parody/satire is important too, because people don't quite grasp what the parody exemption requires. It would be good to review the case between Penguin Books and Ted Geisel (which helps point out one of the key demarkations of parody). Also, Andrew Orlowski's On Creativity, Computers, And Copyright is an excellent essay on why copyright isn't nearly as evil as its foes make it out to be.

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[info]astridv
2006-08-17 08:12 pm UTC (link)
Talk about a public service! I'll bookmark this journal, I don't want to miss this. I really enjoyed reading your arguments over in Scalzi's blog, by the way, very informative.

I'd also like you all to tell me what particular errors you see come up a lot during discussion.

I can't think of anything that you haven't listed already. I mostly noticed that a lot of folks like to mix up copyright and trademark. And some seem to use "copyright infringement", "derivative fiction", "plagiarism", and "theft" practically as synonyms. Then there're the broad, sweeping statements that fanfic is definitely illegal / most certainly fair use.

I myself keep forgetting if, and under which circumstances, you can copyright and/or trademark characters.

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[info]kate_nepveu
2006-09-20 02:13 pm UTC (link)
Note to self: Ownership of derivative works.

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