Return to Home Page COPYRIGHT ISSUES FOR ONLINE MATERIALS
A Primer for Technical Communicators in the U.S.

B Y  C H R I S T Y   C A P P S
Carolina Chapter

As we expand into a global community of online communicators, copyright is becoming a controversial area of debate. How does one understand and cope with copyright law concerning materials that can be so easily transmitted, accessed and duplicated with just a few computer key strokes and/or mouse clicks? Copyright guidelines for online materials are a timely topic as more intellectual property moves into electronic format. We must all be aware of how this fact may affect our lives and professions. Technical Communicators are increasingly producing, maintaining and accessing online materials, including online help, computer-based tutorials and Web sites. It is very important that we understand the implications involved in both publishing and using online information.

 

Copyright issues for online materials differ very little from those of printed or other traditional media. Everything that can be expressed in tangible form is copyrighted at the moment of its manifestation into a medium that can be perceived by others - this includes electronic representation. Because information can be more easily altered and copied in the online medium, many people believe that copyright is obsolete in regards to electronic material - but this is not the case. Just because the technology changes, the application of the law does not necessarily change. After all, copyright did not end with the invention of photocopiers and VCRs.

Copyright Legislation

Our nation's founders first mandated intellectual property rights in the U.S. Constitution. They felt that granting such rights would encourage innovation (Cavazos and Morin 48; Mann, Part II par. 15). The mandate was translated into law in the U.S. Copyright Act, which was significantly altered in 1976 as part of U.S. Code Title 17, to grant broader copyright protection ("Fair Use" par.7). In March 1989, the United States joined the Berne convention, which recognizes copyright on an international level. The Berne convention also eliminated the copyright notice requirement -- the © symbol (Bruwelheide, The Copyright Primer 6-7).

The most recent copyright legislation is the Digital Millennium Copyright Act, signed on October 28, 1998 by Bill Clinton. This act intended to deal more directly with special issues involving copyright and emerging online, or "digital," technology. A majority of the Act deals with anti-piracy issues regarding software, though it makes some provisions for educational fair use. Also, the Act states that Internet service providers (ISPs) are not infringing on copyright by simply transmitting information over electronic networks. The Act still does not clearly deal with the highly complex issue of online copyright and distance education, which needs additional legal clarification ("The Digital Millenium").

Copyright Rules

Several important rules apply to copyright and every professional communicator should be aware of them:

  • An item becomes automatically copyrighted as soon as it is represented in tangible form. ("Tangible form" certainly applies to electronic format.)

  • You do not have to officially apply for a copyright to have one.

  • However, registering for copyright affords owners greater legal protection and may enable them to collect a larger monetary award in court.

  • To have a copyright to something, you must show that it is an original expression.

  • An idea or fact cannot be copyrighted, but its unique expression in original terms can be.

  • Single words or short phrases cannot be copyrighted - unless they have a unique or original arrangement (for example, a poem).

  • Sometimes a particular arrangement of facts or other copyrighted material can itself be copyrighted (such as an anthology of poems, or a text on Civil War history).

(Bruwelheide, "Copyright Issues;" Field; Templeton, "A Brief Intro")

Copyright Formalities

While the formalities of copyright are no longer required, they are still a good practice. This fact is especially true for online materials that can be transmitted globally to countries that might still require such formalities before recognizing the information as copyright protected. (The Berne treaty applies only to those countries that sign the treaty.) Additionally, implementing formal copyright practice increases the owner's likelihood of winning damages in a court case (Bruwelheide, The Copyright Primer 7; Cavazos and Morin 51).

Copyright formalities include:

  • Notice (1) - a statement of the owner's name, the year, and either the word "Copyright," and/or the copyright symbol ()
  • Registration (2) - previously required that copyrights be registered with the Library of Congress. Currently, registration is still required in infringement cases at any time before the actual court date.

(Bruwelheide, The Copyright Primer 6-9; Cavazos and Morin 50-51)

What Can Be Copyrighted

Nearly all forms of expression represented in a tangible medium can be copyrighted. These would include:

  • Written text - books, Web sites and information on Web sites, letters (public or private), e-mail, and so forth
  • Recorded sound
  • Images (in any format, including drawings, photographs, and videos)
  • Computer software.

(Cavazos and Morin 51-52; O'Mahoney)

What Cannot Be Copyrighted

In addition to facts and short words and phrases (as mentioned previously), U.S. government documents are also exempt from copyright protection. Government materials are considered part of the public domain and can be used freely (Crews 49). The public domain also includes those works whose copyrights have expired, such as Shakespeare's plays (Bruwelheide, The Copyright Primer 76).

Rights of the Copyright Owner

Only copyright owners have the exclusive right to reproduce their materials. This includes photocopying. (Certainly, exceptions apply, mainly those related to educational fair use, which will be discussed later in this article.) The copyright holder is also the only person with the right to create a work derived from the original - such as a screenplay adaptation of a novel. (Movie producers have to license with the copyright owner to create a derivative work.)

It is the copyright holder who also has the exclusive right to publicly distribute, display or perform a work. (Unless, of course, others are licensed to do so.) Public performances and displays most often apply to audiovisual works such as concerts or stage plays, but could also apply to a "reading" of a work - especially if admission is charged. Thus, the copyright holder's rights are those most related to venues and applications that offer potential monetary gain (Cavazos and Morin 52; Mann, Part II).

Copyright Duration If a work was created after 1978 (US Code Title 17), the copyright endures for 50 years past the author's death. If the work was created before 1978, the copyright lasts for 75 years from the date of first publication, or 100 years from the date of creation - whichever allows the copyright to expire first. Copyrights cannot be renewed for works created after 1978 (Bruwelheide, The Copyright Primer, 5-6).
Infringement Infringement occurs when people other than the copyright holder claim the holder's exclusive rights - especially when they gain economically. Intent or ignorance cannot protect someone from infringement litigation, but it may lessen the damages that are awarded, which is why giving a copyright notice is still a good practice. Copyright is considered a federal crime, thus subjecting the violator to potential fines, imprisonment, or both (Cavazos and Morin 53; Templeton, "10 Big Myths;").
Fair Use

Copyright protection is excluded in certain cases of what is termed fair use. Fair use is the sampling of copyrighted work for the public interest. Such usage includes critique and commentary (for example, a book review that quotes parts of the book), as well as educational and other nonprofit concerns (Field par. 6-8). The law outlines four basic considerations guiding fair use:

  • Purpose and character of the use (that is, commercial or noncommercial)
  • Nature of the copyrighted work (Factual documents are more allowable for fair use than are fictional works.)
  • Proportion taken (The less the better.)
  • Potential economic impact on the copyright owner (Crews 23).

Obviously, the areas above are highly subjective and open to different interpretations by judges and juries. The primary rule is that it is much harder to establish fair use if you gain financially or take away from the copyright holder's potential economic gains. Therefore, fair use generally does not apply to business endeavors, unless they are nonprofit in nature or for the promotion of the public good (Helyar 1).

Licensing When copyright owners transfer any of their exclusive rights to someone else, they are said to be licensing their work. A copyright license must be in writing, and both sides must gain something of value (Tsyver, "Copyright Licenses" par. 4-5). Licensing of online material can be conducted in several ways, as discussed later in this article.
Copyright and Online Materials

To reiterate, since electronic materials are in a tangible medium that can be perceived by others, they are indeed copyrightable. Examples of online content that can be copyrighted include:

  • E-mail (It is actually considered infringement to reproduce and/or retransmit e-mail without the author's permission.)
  • Newsgroup postings
  • Digital images, including those that are scanned from print material
  • Graphics
  • Software

(Field; O'Mahoney)

Other types of online materials are controversial in terms of their subjection to the rules of copyright. These include:

  • Live chat
  • Databases
  • Digital audio (such as MP3)
  • Links

Databases are largely seen as compilations of fact, but many database owners want their material copyrighted because of its commercial value (Mann, Part III par. 23). Also, a copyright holder may not want to be associated with advertisers from a linked site who have not paid royalties to everyone in the chain (Sovie par. 28). Though the legal implications and details are being negotiated, the law of copyright probably does or will apply to these controversial areas as well. Thus, one should never assume that something is not or cannot be copyrighted simply because it is online - in whatever form that may take.

Online Copyright Enforcement

Just because information is online, does not mean that violators who infringe on its copyright cannot be caught. In fact, publishers and copyright holders have a growing choice of new technology that has been developed, and continues to be refined, simply for the purpose of protecting online copyrights:

Digital Object Identifiers (DOIs) (3) - Also known as digital watermarks, DOIs are at the cutting-edge of copyright security technology for electronic materials. DOIs are embedded electronic codes that serve as a sort of digital fingerprint and travel with the copyrighted material even when it is copied from its originating source. Copyright holders who pay for digital watermarking can also register for automatic Web searches of their material (usually called "spiders") and receive monthly violation status updates in case they wish to file suit against anyone for infringement (Wayner).

Search Engines - Even in the absence of digital watermarks, copyright holders can conduct their own periodic searches using Web search engine capabilities. If those illegally using copyrighted materials did so for commercial gain (and were therefore not exempt for fair use purposes), they would need to register their Web site with the major Internet search engines; thus setting themselves up for discovery by the original owners as well.

Chips - A kind of V-Chip for the Internet, what has been referred to as a Copyright or "C-Chip," is also in development (Mann, Part II par. 7). This technology would function like a digital watermark and automatic licensing device in one. It would limit the use of the material it traveled with on a per-usage basis, possibly with a "pay-as-you-use" stipulation.

Guidelines

Anyone publishing or wanting to use online information should follow a few simple guidelines.

. . . for publishing online materials: First, as mentioned several times before, you should place a copyright notice on any material that you plan to reserve for your own exclusive use. Next, it is also a good idea to register your work with the Library of Congress, and you must do so if you plan to sue anyone for copyright infringement. You should also consider using a digital watermark if your material is valuable enough to warrant its cost. Finally, it would be a good idea to register your materials with an online licensing service such as the Copyright Clearance Center (see below).

. . . for using/licensing online materials: If you wish to use, retransmit, or download any online material, you should never assume that it is not copyrighted, or that the author would not mind your use of it. If authors/creators do not grant explicit written permission to use their intellectual property, you must request such permission before proceeding. To do this, you could, 1) e-mail the copyright holder (Often owners will be happy to let you use their materials as long as you attribute it to them and/or provide a link to their homepage.); or 2) clear rights with an online service such as the Copyright Clearance Center (http://www.copyright.com/). This service, also known as CCC, maintains online databases of copyrighted Internet materials including text and digital images. You can search for materials and request their use online from the CCC site. However, only property that has been registered with this service will appear at its site; thus you cannot assume that if it is not contained in a CCC database that it is not copyrighted. In that case, you will need to contact the owner directly.

Another smart practice is to post warnings on any Web site or chat room if any submitted e-mails or messages are potentially subject to re-posting or retransmission. Such a warning may not be a fail safe, but will serve as responsible notification to those who might not wish that their postings or e-mails be used in this way.

Technical Communicators and Copyright - Future Implications

Copyright issues for online materials have particular implications for technical communicators. For example, with the growing proliferation of pirated software, we have a rare opportunity to prove the added value of our profession. The lack of software documentation (at least in hardcopy format) may be a deterrent to the purchase of illegal software. Perhaps we should examine technology that could automatically erase any online help systems from software that is copied.

Another consideration is the effect that emerging copyright laws may have for editors of online content. The latest release of Adobe PhotoShop, for example, automatically scans images for watermarks and alerts the user when the material has a known copyright (Wayner, pg. 2, par. 4). Will the tools we use become increasingly expensive because their creators must work to avoid copyright infringement -- similar to the way healthcare costs have risen due in part to the expense of doctors' malpractice insurance?

Finally, in extending the example above, you can still edit a copyrighted document in PhotoShop, even with its watermark in place, but what if the emergence of something like the ©- Chip mentioned earlier locks out the use of certain materials until a fee is paid? Will practices like these begin to favor the interests of copyright owners and publishing houses and infringe on the public's right to access information openly and freely as the Internet originally intended? With the new millennium upon us, these questions should begin to find answers.

References

Bruwelheide, Janis H. "Copyright Issues for the Electronic Age." ERIC Digest 95-03. April 1995. ERIC Digest. 11 November 1999 <http://ericir.syr.edu/ithome/digests/copyright.html>.

---. The Copyright Primer for Librarians and Educators. 2nd ed. Chicago: American Library Association, 1995.

Cavazos, Edward A. and Gavino Morin. Cyberspace and the Law: Your Rights and Duties in the On-Line World. Cambridge, MA: MIT Press, 1995.

Crews, Kenneth. Copyright, Fair Use and the Challenge for Universities: Promoting the Progress of Higher Education. Chicago: U of Chicago P, 1993.

Field, Thomas G., Jr. "Copyright on the Internet." Franklin Pierce Law Center Online Database. 7 October 1998. Franklin Pierce Law Center. 17 November 1999 <http://www.fplc.edu/tfield/copynet.htm>.

"The Digital Millennium Copyright Act." The UCLA Online Institute for Cyberspace Law and Policy. 5 October 1999. The UCLA Graduate School of Education and Information Studies. 17 November 1999 <http://www.gseis.ucla.edu/iclp/dmca1.htm>.

"Fair Use in the Electronic Age: Serving the Public Interest." Association of Research Libraries Online Database. 17 June 1997. Association of Research Libraries. 28 October 1999 <http://www.arl.org/info/frn/copy/fairuse.html>.

Helyar, Pamela S. "Fair Use: What Copyrighted Works Can We Use?" 40th Annual Conference Proceedings of the Society for Technical Communication. 1993. The Society for Technical Communication Conference Proceedings Database. 20 November 1999 <http://www.stc-va.org/proceedings/
ConfProceed/1993/PDFs/Pg9193.pdf
>.

Mann, Charles C. "Who Will Own Your Next Good Idea?" The Atlantic Monthly. 282.3 (1998): 57-82. 12 November 1999 <http://www.theatlantic.com/issues/98sep/copy.htm>.

O'Mahoney, Benedict. The Copyright Website. 1995-1999. 29 October 1999 <http://www.benedict.com/>.

Sovie, Donald. "Copyright Entanglements on the Net: Companies downloading or linking to copyrighted material on the Web may face liability for infringement." IP Magazine Online. February 1999. Intellectual Property Magazine. 20 November 1999 <http://www.ipmag.com/monthly/99-feb/sovie.html>. (Note: No longer available as of 2/28/01. Last accessed on 12/2000.)

Templeton, Brad. A Brief Intro to Copyright. 31 October 1999 <http://www.templetons.com/brad/copyright.html>.

---. "10 Big Myths about Copyright Explained." 31 October 1999 < http://www.templetons.com/brad/copymyths.html>.

Tsyver, Daniel A. "Copyright Law in the United States." Bitlaw: A Resource on Technology Law. 1996-1998. Bitlaw.com. 17 November 1999 <http://www.bitlaw.com/copyright/index.html>.

"United States Copyright Office." Library of Congress Online. United States Government. 28 October 1999 <http://lcweb.loc.gov/copyright>.

Wayner, Peter. "The Copyright Boomerang." Salon Magazine Online. 1999. Salon.com. 18 November 1999 <http://www.salonmagazine.com/21st/feature/1998/11/
20feature.html
>.

Footnotes
  1. Although the Berne convention of 1989 eliminated the U.S. notice requirement, those works created between 1978 and 1989 are required to give notice for copyright protection (Bruwelheide, The Copyright Primer 7).
  2. At the time of this writing, basic registration costs $30. To register, you must fill out a simple form, deposit two copies of a published work (one copy if unpublished) to the Library of Congress. You can find more information at the U.S. Copyright Office Web site (http://lcweb.loc.gov/copyright).
  3. For an extensive discussion about DOIs, refer to the DOI Web site (http://www.doi.org/).
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Christy Capps is a professional Information Developer with IBM's Design and Information Development group in Research Triangle Park, NC. She holds a bachelors degree in English from the University of North Carolina at Chapel Hill and a masters in Technical Communication from North Carolina State University. Her graduate studies focused on usability in Web development. Christy is also an Assistant Editor for Hyperviews:Online. You can reach her at christycapps@hotmail.com.

Winter 2001
Volume 4, # 1