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 "The Congress shall have Power … To promote
the Progress of Science and useful Arts, by securing for limited Tımes to Authors
and Inventors the exclusive Right to their respective Writings and Discoveries."
- United States Constitution, Article I, Section 8. Therein lies
the authority for legislation and prosecution of rights for virtually every human
creation within the jurisdiction of the country. Each nation has it own version,
and international agreements help assure universal protection of a creator's rights
of ownership; e.g., the "Convention for the Protection of Literary and Artistic
Works" (aka the "Berne Convention") of 1886 and the World Intellectual Property
Organization (WIPO). America has
the U.S. Copyright Office.
Those of us involved in presenting information and referring to legally protected
works of others are, or should be, concerned with laws governing how such content
may be used. Fortunately, "Copyright
Law of the United States of America and Related Laws Contained in Title 17 of the
United States Code," it is not too difficult to interpret if you can work through
a bit of legalese. In particular, Section 107 details the meaning of "Fair Use."
It is reproduced in full below.
§ 107 . Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of
sections
106 and 106A, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that section,
for purposes such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use
the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.
The fact that a work is unpublished shall not itself bar a finding of fair use
if such finding is made upon consideration of all the above factors.
Sections 106 and 106A, referred to in Section 107, convey a full right of reproduction
and distribution of original works to authors and/or entities who legally own the
content. Section 107 describes how everyone else may excerpt from the owner's work
without violating his property rights. As you can see, "Fair Use" is very vague
and is open to interpretation by courts. Notwithstanding the code's lack of specificity,
legal precedents have been set in courts of law regarding how much of a particular
type of works may be reproduced without violation. The entirety of USC Title 17
must be included when deciding.
Stanford
University has an extensive listing of Fair Use cases and their decided outcomes.
It also summarizes "Fair Use" as follows, "In its most general sense, a fair
use is any copying of copyrighted material done for a limited and 'transformative'
purpose, such as to comment upon, criticize, or parody a copyrighted work."
Nolo says in order to be 'transformative,' two tests must pass
muster : "Has the material you have taken from the original work been transformed
by adding new expression or meaning? Was value added to the original by creating
new information, new aesthetics, new insights, and understandings?"
Section 101 defines all terms used in the document. While not applicable to this
discussion, "phonorecord" is used extensively throughout Part 17, and applies to
reproduction of what we now refer to as "sound bites" such as those used on radio
and television news broadcasts. Similarly, "Audiovisual works" covers video clips
used as part of a broadcast. Notably,
FCC Part 97 rules which govern amateur radio specifically prohibit
the transmission of any copyrighted broadcast either as the primary content or even
as secondary (background) content - including any
form of music. Section 117, which almost certainly applies to everyone reading this
article, describes "Limitations on Exclusive Rights: Computer Programs."
Of particular interest is Section 105 which states all material produced by a
government entity is in the public domain. That explains why government documents
contain a statement declaring permission to freely copy contents so long as incorporated
material attributed to otherwise copyrighted works are not reproduced. In addition,
generic names, slogans, and short phrases cannot be copyrighted, but they may be
trademarked. Ideas and facts are considered to be in the public domain and may not
be copyrighted.
§ 105 . Subject matter of copyright: United States Government works37
Copyright protection under this title is not available for any work of the United
States Government, but the United States Government is not precluded from receiving
and holding copyrights transferred to it by assignment, bequest, or otherwise.
Duration of Copyright: The "Copyright Act
of 1976" automatically protects a work that is created and fixed in a tangible
medium of expression on or after January 1, 1978, from the moment of its creation
and gives it a term lasting for the author's life plus an additional 70 years. This
means that an originator (writer, painter, computer programmer,
singer, musician, etc.) does not need to formally register a works with the
U.S. Copyright Office in order to receive legal protection so long as it is published
in a readily accessible venue. For example, the entire contents of this page is
automatically protected against unauthorized reproduction by virtue of its being
published on RF Cafe. Although many instances exist, two are notable in my April
Fools articles claiming to be reported by the fictitious "Science News Service," with a duly mentioned bona fide being membership
in the equally fictitious "U.S.
Association of Science Journalists." Both names were researched extensively
before using them to make certain I would not infringe on anyone else's rights,
and none were found. I legally have ownership of them by virtue of the publishing,
so no other entity may legally use them.
Expiration of Previous Works: Unbeknownst to many people is that statute that
renders all material protected by copyright prior to 1964 to be effectively in the
public domain unless the copyright holder specifically re-files for protection;
to wit: Mandatory
Renewal - "Works originally copyrighted between January 1, 1950, and December
31, 1963. Copyrights in their first 28-year term on January 1, 1978, still had to
be renewed to be protected for the second term. If a valid renewal registration
was made at the proper time, the second term will last for 67 years. However, if
renewal registration for these works was not made within the statutory time limits,
a copyright originally secured between 1950 and 1963 expired on December 31 of its
28th year, and protection was lost permanently." A lot of old material falls
under the purview of this law, including many out-of-print books and magazines where
the original copyright owner has not formally renewed the copyright. That is part
of the reason so many PDF files of full cover-to-cover scans of magazines and books
can be found on the Internet. An extremely useful website that does so for radio,
television, and electronics material is WorldRadioHistory.com, which contains hundreds of full issues
of all of the magazines from which I excerpt articles for commentary. Note that
most are currently out of print, but not necessarily protected by the pre-1964 copyright
exclusion. Many publishers, like the American Radio Radio League
(ARRL),
have their own libraries of archived issues access restricted to paid subscribers
and forbid third party exploitation, so you will not find, for instance, back copies
of QSL magazine on that website. I personally only use magazines which
I own and manually scan, run optical character recognition (OCR) on for extracting
searchable text, and clean up images with editing software.
Court cases have been decided concerning
hyperlinks on one website pointing to copyrighted material on
the content owner's website. Consensus appears to be that as long as the material
is not behind a firewall of some sort, nothing disallows the practice. If it did,
then every search engine would be in violation. However, if a hyperlink is placed
on a section of text or an image that itself violates "Fair Use," then a violation
has occurred, but not because of the hyperlink itself. A related practice called
"framing" is less clear as to its protection against infringement. Framing involves
using an HTML IFRAME element or some other programmatic means to display a 'live'
version of somebody else's work 'inline' with unauthorized content. A recent European
Union
Court of Justice decided thus, "The owner of a website may,
without the authorisation of the copyright holders, redirect internet users, via
hyperlinks, to protected works available on a freely accessible basis on another
site."
There does not appear to be any objective rule governing exactly what percentage
of any owned work may be used without permission by the owner. Interpretation of
"Fair Use" is largely subject to a court's whims, notwithstanding cited decided
case precedence. University of Maryland University College (UMUC)
created a list of guidelines to help keep you out of trouble with the law. They
also warn that although your actions might not violate copyright law, you might
still be guilty of trademark and/or patent and/or libel and/or plagiarism, depending
on usage. Stanford University offers "Measuring Fair Use: The Four Factors" in summarizing
how courts decide infringement cases.
Admission: Having written all the above, I have to confess to sometimes skirting
the edge of legality in some of my works, but without malicious intent (an exception
being the rare use of a thumbnail image of a 'famous person' to lampoon him/her
on a political or social issue). I always attempt to provide full attribution to
anything I have not created in its entirety, with a specific written note of origin,
a hyperlink pointing back to the original works, or both. In no case do I ever intentionally
present somebody else's creation as my own, just as I would resent somebody doing
so with my creations. Perhaps my most questionable practice is when I post an entire
article from one of the old electronics magazines, complete with included photographs,
and include my personal commentary at the beginning (thereby
fulfilling the 'transformative requirement). Full attribution is always provided
to the original owner via a copy of the table of contents page that includes publisher
information and claims of exclusive use. To my knowledge, none of the articles come
from issues dated prior to 1964. Unless otherwise stated (no instances come to mind),
my use of another author's or artist's material specifically seeks to promote both
the original works and the subject matter contained therein. Furthermore, my
About
RF Cafe webpage specifies my view on trademarks and copyrights, including an
invitation for anyone believing I have violated their rights to a particular creation
to contact me with a request that it be removed. Only one instance of that happening
comes to mind, and that involved a court case where the contested text was a quotation
with permission for and attribution to another author's remarks; it was duly removed.
In summary, the best practice is to be absolutely certain that your works do
not knowingly incorporate someone else's material, to be careful not to even come
close to violating someone else's work in copying him/her without permission, to
request and receive in writing permission to use only the content you plan to reproduce
(preferred), or roll the dice and hope nobody will
successfully sue you for infringement. Know for sure though that legions of lawyers
and paralegals personally and with the assistance of computer programs continually
scour the Internet for new court cases. You have been warned ;-)
See also You've Heard of a Copyright,
But How About a Copyleft?
Disclaimer: Remarks made by me on this page are purely my
interpretation of U.S. codes and in no way is intended to be a citable source for
legal purposes. You are encouraged to conduct your own research and/or consult qualified
legal council when considering whether material you have created or used is covered
by copyright.
Posted October 15, 2021
(updated from original post on 4/26/2016)
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