Rev. 2002-10-22, 2009-05-29, 2010-02-26

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The right to control copies of ones own creative work has been a hard fight, a battle that has taken centuries.
Even as I write this more changes are being worked in the law to cope with electronic messaging and computer programs.

A copy of the law at the Library of Congress site

What is Copyright Protection?

In my lifetime there has been one major change in the copyright law and before I was born there others, including creation of the law. Shakespeare had no legal right to his plays and copies were made and published without payment or permission. He made his money in the acting company and sharing the gate receipts. During and before the Cold War, Russia refused to acknowledge copyrights granted by other countries and published pirated copies of books by the thousands. One of the major bones of contention in dealing with China has been her refusal to put a damper on unrestricted copying of music and computer media.

In the United States, until the late 70's, the copyright law was very limited compared to what had developed in the rest of the world. At that time, American copyright law was revised to conform. Prior to the new law, a copyright did not exist in fact unless it was registered. Once registered, the copyright expired in a couple of decades (I used to know exactly how long), unless it was renewed on a timely basis and that could only be done once. All publications had to have a correct and proper copyright notice and publication by the author without it would result in permanent loss of the copyright protection for that work: it would be in the public domain. Certain works lost protection because the notice was not given exactly properly: for example, if the correct wording was Copyright 1976 Mike Firth, then saying Copyright by Mike Firth in 1976 could lose copyright protection.

Under the new law, copyright protection became automatic upon creation of the work (although registration provided certain ease of proof of creation and the law allowed for additional penalties for violation of registered work.) Further, the copyright continued for 50 years after the author's death, much longer that the previous law even if the author died right after the creation. Even further, it became almost impossible for a work to go into the public domain unless the author specifically placed it there - if a work were published without a notice, a reader could assume it was in the public domain and safely use it accordingly, but notification that it was not in the public domain was sufficient to block further usage and copyright was not lost, provided future publications by the author had the notice included. In fact, it is much safer to assume a copyright exists than to assume it does not.

FAIR USE - Within the copyright law is an exception to the protection given. Under a concept called Fair Use
[ ] portions of a work may be quoted or copied for specific types of uses ("for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research"), without asking the author for permission, provided the author is credited, even if the author has stated very restrictive copying rules. The general requirement is that the portion of the work or body of work quoted not be a substantial portion. There are no fixed rules, the law allowing a mix of use versus value to determine fair use. The general purpose of fair use relief is to encourage comment and criticism and to permit training, research, and study without requiring that every small quote be tracked through (potentially) several publishers and author's representatives. There must be a balance of the amount of quoted material and the original creative work in which it is embedded. (Thus lawsuits about sampling music may depend on whether the whole work consisted of sampled tracks, while a musical piece that borrows a familiar phrase from another piece are clearly mostly newly creative stuff - like Mozart doing variations on a theme.)
I have posted the following pages showing images used elsewhere on the site for copyright reference under fair use.

2002-06-09 In an article on New Architect (formerly Web Techniques)  July 2002, p.42, reports on a court case of some significance in Fair Use. In this case a company, Arriba, searched the web for images in pages, brought in a copy, made a thumbnail and indexed on the alt words. When a search was made, the site went and got the original image from the search and displayed it surrounded with ads and Arriba information. A photographer, Kelly, having posted his quality images to his own site to promote his work, sued for copyright violation for the whole process. Arriba claimed Fair Use. The author cites "four factors the court used as guidelines for Fair Use: 1. What is the purpose and character of the use? 2. What is the nature of the copyrighted work? 3. What amount of the copyrighted work was used in the new work? 4. What is the effect of the new work on the market for the copyrighted work?"
The court held that the original search and creation of thumbnails did NOT violate fair use falling under (1) transformative use, such as parody, especially since the thumbnails were small and of lower resolution. Because (2) the copyrighted work was of a creative nature (unlike say a bar chart or statistical table) it deserved a higher level of protection. Although the bits of the thumbnail were exact copies of the original, (3) Arriba had only copied what was needed to accomplish the transform. And (4) the small thumbnails did not infringe on Kelly's market.
HOWEVER, Arriba also displayed the full images and "copyright owners have the exclusive right 'to display the copyrighted work publicly'" Here the court found that Arriba did not have standing under Fair Use because of the size and quality of the images (the original) surrounded by a context not desired by the author. Arriba lost the right to display the images without permission, while still having the right to make thumbnails and provide a link to Kelly's site for users to follow.

LINKS - An interesting discussion of the complications of the internet and being able to link to pages is found at . There it is said that using a link is not a violation of copyright, since the author is still doing the publishing, and also that links have weak copyright protection (my making a set of links and trying to copyright it to prevent others from using the information is not strongly protected.) Now that browsers permit putting a frame on the screen and then linking to another site within that frame, perhaps misleading the user as to who is the source of the linked-to site, life has gotten more complicated, and this is also discussed at the site.


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