Tuesday, 21 August 2012

Copyright and Fair Use

Copyright is an issue that I find myself constantly having to deal with.  So much so, that at times that I’ve considered giving up writing for the net.

I frequently have to do a check to see if any of my work has been stolen and used elsewhere on the net, and often enough, it is.  I’ve been criticised for my use of the word stolen, but under copyright law, that’s exactly what it is.

It doesn’t matter if you credit me, it doesn’t matter if you provide a link back to the original, if you have used an article of mine without my permission, you have breached copyright laws and I can file a takedown notice with your service provider.  Usually, I will contact you first however.

I struggle with it.  It is flattering that someone likes my work enough to copy it and put it up on their page.  Sometimes.  I started writing for the web to see if I could write in a way that people want to read, and this is how I find out that apparently , yes I do.  When I find blogs filled with stolen work (including but not limited to mine) and massive amounts of advertising on those blogs, I know someone is just out for a quick buck.  Not quite so flattering.

When I find my work on someone else’s blog and credited to them, that’s a whole different story.  And when their clixsense stats show that they’ve made 100 times more off it than I have, well that means war.

You see, when I’m writing on the web, on some sites (not this one however) I get paid for it.  That payment comes from page views, ad-clicks and a whole lot of other stuff that I don’t really understand.  So when someone rips off my article from one of those sites, they’re taking away my potential to earn.

That may sound grasping and a bit greedy to you but consider this.  I found that working for other people wasn’t working for me (pun intended).  I feel that women are expected to be men that look different.  That we are supposed to carry on every day and not need some time out when we have our periods – which is idiotic to say the least.  That we are supposed to just send sick kids to school and not take all that time off.

However, while I make and grow a lot of things that most people would buy, I still need money.  I can’t grow teabags or dish-washing liquid or laundry powder.  I still need to pay a mortgage, pay for my electricity and pay insurance.  So I still need a source of income.  Writing is something I enjoy, and writing about pagan-related concepts is a passion.  I thought I’d found a way to make a little bit (and it is only a little bit) of money doing something I enjoy and am passionate about.  So it hurts to have my meagre few cents a month stolen from me.

Anyway, back to the original point of this rant.

I’ve become extremely familiar with how copyright law works, that an excerpt can be used under ‘fair use’ but not taking the whole thing.  So when I recently come across someone explaining that ‘fair use’ means you can take anything you want from the net as long as it’s credited and no one is making a profit from it, I’m rightly a bit offended.

As it’s a common misconception, I was polite.  I explained that this wasn’t true, that depending on the license (it was a photo being discussed), you needed to contact the copyright owner and ask for permission first.  The response I got was interesting:

Debbie, I'm 52 and been blogging for years. Read this and then tell me I'm lying. http://www.copyright.gov/fls/fl102.html Not true my foot.”

Firstly, what was the point in telling me his age?  Does being 52 automatically make you an expert on copyright law?

Secondly, I followed the link.  I read through the fact sheet on fair use of copyrighted materials.  Nowhere in there did it back his theory of “credited and not for profit”.  It said that they were factors that would be taken into consideration, but it didn’t make the leap that he had.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Here is fair use, directly from the source provided by this chap.  It also states:

The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

Which was my point.  If you don’t need permission, why would this be there?
I said to him that his proof didn’t back him up at all, but apparently, because he’s been blogging for years and uses photos all the time and never had a takedown notice, that’s further proof – these people obviously actually know the law.

So now, not getting caught is the same as doing it legally?

New Zealand copyright law is more specific.  And we are in New Zealand. 

“Fair dealing” exceptions to infringement
A “fair dealing” with copyright material does not infringe copyright if it is for the following purposes:
research or private study;
criticism or review; or
reporting current events.

I had a look over his blog and found it fascinating.  There’s hardly an original piece on it.  There are entire news articles copied and pasted with random interjections that say things like “Exactly!”  or a couple of sentences at the end expressing his opinion on the subject.  It is tempting to contact the copyright holders of these works and ask if they were aware of this, but why waste my time on him?

OOPS, it appears I had the wrong blog.  I googled some more and found his name come up in many varied and interesting places before I actually found his own blog.  This chap has issues, and copyright infringement is the least of them.  Death threats to MPs and internet based vigilante-ism is more his line. 

I thought about it some more.  If this was fair use, then why is there varying degrees of licenses for photographs on the internet?  If you go to Google Images, and click advanced search, you can filter by licence – the different licences are:

Free to use or share
Free to use or share, even commercially
Free to use, share or modify
Free to use, share or modify, even commercially

If you filter by any of these and a picture comes up, then you can use it.  If it doesn’t, then you need permission by the copyright holder.  It’s not rocket science, and I would have thought it’s quite clear but apparently it’s not.  If it was fair use in any application that wasn't commercial, why would there be a distinction?

So all the blogs that don’t have advertising and credit my work back to me are just fair use?  If that was also the case, then why are the takedown notices upheld?

But every now and then, you come across a disclaimer on a web page like this:

If you have a look through the rest of the website, you’ll find pages copied directly out of books and from websites.

Please try and have some respect for the copyright holders.  We’re not all complete money grubbing bastards.  And FFS, if you have a blog, write your own stuff.  If you really need to share mine, a paragraph and a link will suffice.

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