Misconceptions about Copyright

Priyanka Sardana and Vijay Sardana

In previous article we have discussed a copyright is a form of intellectual property that grants its holder the legal right to restrict the copying and use of an original, creative expression, such as a literary work, music or a movie or sound recording, painting, a computer work, or industrial design for a defined period of time.

In this article we the discussion is on various myths about Copyright so that a clear understanding about the copyright can emerge.

Misconception: “It is essential to have copyright registration and notice to have copy write protection”

This is not true. Today almost all major nations follow the Berne Copyright Convention. In India or in any part of the world, almost everything created privately and originally after adopting Berne Convention is copyrighted and protected whether it has a notice or not. It is true that a notice strengthens the protection, by warning people, and by allowing one to get more and different damages, but it is not necessary requirement. This applies to all forms of creativity and expressions. You may not use picture for your advertisements by scanning pictures from magazines because you may be violating someone’s copyright unknowingly.

Misconception: “If I use the material for free distribution then it’s not a violation of copyright.”

This is not correct. It’s still a violation if you give it away — and there can still be serious damages if you hurt the commercial value of the property. There is an exception for personal copying of music, which is not a violation, though now because of internet this is also becoming a serious issue because of music industry. If the work, you have copied, has no commercial value, the violation is mostly technical in nature and is unlikely to result in legal action under the law. Fair use determinations sometimes depend on the involvement of money.

Misconception: “If it is posted to a notice board or website and news group or use net it is in the public domain and it is not violation of copyright.”

This is also not true. If to post in public domain the copyright owners’ written permission is important in clear terms. Owner of the copyright must explicitly give the permission for the use in the words like, “I authorize/grant my work to the public domain.” or similar statement is required. It is important to remember that when it comes to the law, computers copies, only human beings make copies. Computers are given commands, not permission. Only people can be given permission. Furthermore it is very difficult for an implicit license to supersede an explicitly stated license that the copier was aware of.

It is important to note that all this assumes the pasting any document on the website must have the right to do so in the first place. Otherwise it will be taken as ‘pirated’, and no implied license or theoretical reduction of the copyright can take place.

It is important to note that granting something to the public domain is a complete abandonment of all rights. You can’t make something “Public domain for non-commercial use.” If your work is public domain, other people can even modify one portion of the work and put their name on it.

Misconception: “I copied for fair use and for noble cause!”

The “fair use” exemption to copyright law in certain countries was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. That’s important so that copyright law doesn’t block your freedom to express your own works – only the ability to express other people. Please note that Intent and damage to the commercial value of the work are important considerations for deciding violation of copyright.

Example, if you are reproducing an text of a book because you needed to in order to explain to your students about importance of topic discussed in the writing in class, or because you couldn’t find time to write your own text, or didn’t want your readers to buy the book which you want them to refer? In this case the first is probably fair use, the others probably aren’t.

Fair use is usually a short excerpt and almost always attributed. One should not use more of the work than is necessary to make the commentary or statement. It should not harm the commercial value of the work — in the sense of people no longer needing to buy it which is another reason why reproduction of the entire work is a problem.

Fair use isn’t an exact doctrine, either. The court decides if the right to comment overrides the copyright on an individual basis in each case. The “fair use” concept varies from country to country, and has different names and other limitations in different countries. Please also note that facts and ideas can’t be copyrighted, but their expression and structure can. You can always write the facts in your own words.

Misconception: “If you don’t defend your copyright you lose it.”

This is not true. Copyright is effectively never lost these days, unless explicitly given away. You also can’t “copyright a name” or anything short like that, such as almost all titles. You may be thinking of trade marks, which apply to names, and can be weakened or lost if not defended.

You generally trademark terms by using them to refer to your brand of a generic type of product or service. Like a “Real” Juice. Dabur India “owns” that word applied to juices, even though it is also an ordinary word.

You can’t use somebody else’s trademark in a way that would steal the value of the mark, or in a way that might make people confuse you with the real owner of the mark, or which might allow you to profit from the mark’s good name. You can use marks to criticize the holder, as long as it’s clear you aren’t the holder.

Misconception: “It doesn’t hurt anybody – in fact it’s free advertising.”

It is up to the owners to decide if they want the free ads or not. If they want them, they will be sure to contact you. Don’t rationalize whether it hurts the owner or not, ask them. Usually that’s not too hard to do. Even if you can’t think of how the author or owner gets hurt, think about the fact that piracy on the net hurts everybody who wants a chance to use this wonderful new technology to do more than read other people’s flame wars.

Misconception: It means we cannot reproduce anything?”

Technically yes. By providing reward to authors and creators, it encourages them to not just allow, but fund the publication and distribution of works so that they reach far more people than they would if they were free or unprotected – and un-promoted. While doing so, it must be remembered that copyright has two main purposes, namely the protection of the author’s right to obtain commercial benefit from valuable work, and more recently the protection of the author’s general right to control how a work is used.

While copyright law makes it technically illegal to reproduce almost any new creative work.

According to John Oswald, “If creativity is the field, copyright is the fence.”

 

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