Copyright infringement

Introduction

Copyright infringement is a term that most Americans are familiar with. Children are taught about what is right and wrong in school and naturally this issue of copying another's work is something that is engrained into us as children. Yet, the great majority of us will not have the need to apply for copyrights nor will we ever take another to court for copyright infringement. So for some reason, most of us have forgotten the legal consequences that are in place for those who, knowingly or not, violate copyright laws. You probably did not know that copyright infringement has become such a problem that in the 1990's in the United States a copyright violation involving more than 10 copies and value over $2500 was made a felony. A felony! This is not an issue to take lightly and this bit of information should certainly get you thinking about how seriously you are taking your own use of materials that belong to someone else.

What is copyright infringement?

You are probably aware that a copyright is a right that an author has to protect how and when their original materials are used. A copyright infringement or copyright violation happens when someone violates a copyright and uses copyrighted materials without authorization from the owner of the copyright. Copyright infringement is most commonly committed when the author's exclusive rights to reproduce or make derivative works of a subject is violated.

What is "piracy"?

Piracy is a term that is commonly associated with copyright infringement; however the term "piracy" has actually been used to refer to the unlawful use of another's materials before copyright laws were even established. In as early as 1603 it is recorded that those who did not have permission to use or produce a certain publication, but who did so anyway, were called pirates (their crime being called "piracy). Nowadays, piracy is most commonly used in association with the copyright infringement of electronic and audio-visual media. This term is applied to the crime of reproduction or distribution of these works without the consent of their respective creators.

What sort of protection does a copyright holder have against infringement?

The United States court system provides protection from infringement of copyrights. However, as with any legal case, the claimant must have accurate grounds and sufficient evidence to support their claim of copyright infringement. To begin, if you are the one who is claiming to have your copyright violated, you must first establish beyond a doubt that you are in fact the legal owner of the copyrighted work in question. This usually involves having gone through the appropriate registration process, paying the registration fee, and obtaining the registration paperwork from the U.S. Copyrights Office. The second element to claiming infringement of copyrights is to establish that there has in fact been an copying or other reproduction of the copyrighted work. This could include the guilty party's admission of guilt but more commonly this evidence is indirect and takes the form of the provision of works that are strikingly and dramatically similar to the materials that are protected under the copyright. Naturally, the more similar the two materials are, the stronger the case will be against the defendant. The individual bringing suit against the infringer may also provide evidence that the copyrighted material was reproduced and distributed across a certain geographical area. The last element that must be in place in order to hold an undeniably convincing argument that you have had your copyrights violated is to "establish misappropriation." When you establish misappropriation, you are establishing that the materials that were copied or reproduced were in fact able to be copyrighted, meaning that they did not consist of facts, ideas, themes, or content that is considered public domain. A vague copyright can be detrimental to the claimant's case.

Are there any good arguments that could be used to protect one who has been accused of violating a copyright?

No one can deny that there are a lot of gray areas in copyright laws. It is not entirely impossible to have violated someone's copyrights and have no idea that you have done so. Thus there is a level of protection for those who are innocent in cases brought against them in copyright violation suits. For example, it is possible for one individual to create a work that is very similar to another's copyrighted work without ever having even seen that copyrighted work. The legal doctrine of "de minimis non curat lex", translated as: "the law does not care about trivial things," has been applied to copyright violation claims on many occasions. As you may have assumed, with so many works out there and so many people wanting to claim sole possession of them, it is almost impossible to go through life without unintentionally or accidentally exposing someone to that work. Another term that is commonly used to defend those who are being prosecuted for copyright infringement and do not deserve to be so is called "fair use."

What is "Fair Use?"

Fair use is perhaps the most common defense that is used in copyright infringement proceedings. According to the Fair Use doctrine as stated in United States Copyright law, "Courts apply a four part balancing test examining the scope of infringement, the effect on the copyright owner's rights (e.g. his or her ability to sell the work), the amount of the work copied, and the purpose of the infringement." Some arguments that some believe are valid under fair use are that copyright infringement for non-commercial use is not against the law. But the courts have held fast in the point that the market effect is substantial enough (meaning that the owner's market or potential market is effected) to negate the fact that the materials were not sold for profit. Other details of court rulings under fair use include that newspapers and other publications are allowed to publish photos of copyrighted materials so long as proper credit is given to the owner, the product information is included, and that the copyrighted material is not reproduces in its full size. Also, these entities are not allowed to give instructions for how the material can be reproduced. Another example of how fair use is used is that it allows teachers of non-profit schools to make copies of materials and to distribute those copies to their class. Of course there are many other exceptions to copyright laws that are included under the fair use act, but to cover all of these issues would take quite some time.

Copyright infringement and public domain

The topic of public domain was brought up briefly in the preceding paragraphs but it will now be explained in more detail as it is important to know what public domain is when researching what to do for copyright infringement. Public domain is not protected by copyright. Before 1978, a copyright lasted 28 years and could be extended another 47 years for a total of 75 years. After 1978, a copyright lasts the lifetime of the author plus 70 years. After these periods the work is considered public domain and copyright suits cannot be won by those claiming expired rights to the materials. It is however not only courteous but expected that you give credit where it is due even if the source that you are citing is technically public domain. Acknowledging your sources gives your work credibility beyond your own word.

Public domain issues have become more complicated as the internet has grown in popularity. Some individuals are under the impression that if something is posted on the internet, it is free game (or public domain). This is simply not true. The only way that a work that is posted to the internet is considered automatically made public domain is if the author chooses to explicitly note that their work will be granted to the public domain. The author must use words such as "I grant this to the public domain" quite obviously. Some are under the impression that if they are technically allowed to copy something that they find online (as in their computer allows them to copy and paste something) that that is an indication that copying such materials has been allowed by the author. Keep in mind that computers are not grantors of permission but rather machines that carry out the commands that they are given. The argument of "my computer allowed me to do that" is a poor defense against copyright infringement to say the very least.

Whether it is on the internet or not, authors must acknowledge that once they allow for their work to be designated as public domain, they no longer have any exclusive rights to that work. If someone wanted to, they could quite legally take the exact materials that were created, change one tiny feature, and put their own name on it to claim as their own. This second individual would be completely within their rights and the original author would have no legal argument for retribution.