by Timothy J. Walton
Copyright is the legal means of protecting expression. Copyright attaches to a work when the work becomes “fixed” in a tangible medium, which can be paper, magnetic tape or silicon. This fixation occurs when an expression is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.”1 The rights attach immediately, without need for a copyright symbol. The date also attaches immediately. A violation of copyright occurs when someone without authorization of the copyright owner displays or makes an exact duplicate of the work or creates a derivative work based on the copyrighted expression.
Most of the exceptions to this rule lie within the doctrine of “fair use.”2 While the specifics of the doctrine are set forth in federal law,3 the application of those specifics becomes fuzzy very quickly. Courts determine whether facts fall within the ambit of the doctrine on a case by case basis.4Thus, reliance on the doctrine of fair use is a dicey proposition at best.5
Rights are lost altogether when a work enters the public domain. This usually happens when rights lapse through the passage of time. Depending upon the date of creation, rules vary as to when a work enters the public domain.
Because the United States was not a signatory to the Berne convention (the international agreement for consistent copyright law) until 1989, works created before 1989 have a different amount of protection. Invariably, copyright protection expires when works enter the public domain. At that point any person or machine may copy, display or create derivative works without violating the law. Since 1989 U.S. authors’ work is entitled to protection lasting until 50 years after the death of the author.6 Duration of copyright for works created before 1989 is difficult to determine because of the complexity of prior rules and is thus beyond the scope of this paper.
There is no requirement that work must be labeled with a copyright notice. This has important ramifications on the Web because every authored element of every webpage is thus copyright protected. There are only two exceptions to this: one is when the original author explicitly specifies otherwise and the other is when copyright lapses after the passage of time. Since the Web itself is only about six years old, the prudent course is to assume that all works found on the Web will not be in the public domain for at least 44 years unless you have specific information to the contrary.
Copyright violation is surprisingly easy in the context of the World Wide Web. Technically, loading a work into the RAM on your computer can be a violation of copyright.7The simple act of viewing webpages creates a local copy of everything seen, not only in the RAM but also in the hard drive’s browser cache. However, works placed on the Web come with an implied license to make those copies.8Copying beyond that could be a violation of the author’s rights.
Duplicating elements of source code or creating additional versions of the graphics is copying beyond the scope of the implied license. This copying does not have to be for profit -- distributing digital copies by email can be a violation. It may seem like a good idea to email a funny comic strip to your brother, but it would be a violation of the owner’s copyright, just as unauthorized photocopying of the strip would violate the owner’s rights. Since public display of work is also a violation, mere placement of a copied item on the Internet (as on a webpage or FTP site) violates the copyright. No person need actually view the work.9
Web content creators need to understand copyright so they do not violate the law. But webmasters can also use copyright law to protect the original elements of their own websites. Because of the nature of the Internet and the ease of reproducing digital files, there is almost no way to avoid having your copyrighted work violated. Files on the Web are easy to duplicate with no loss of quality. Copyright law was written prior to the advent of the Web, so many of the issues in protecting copyright were simply not foreseen by Congress or the Berne Convention.
Copyrighted work, especially software and images, can be very valuable. Businesses attempting to profit on the Web may want to limit access based on payment for admittance. One method of restricting access to copyrighted materials is to require passwords before entering a directory. For example, owners of a software download site or a site with graphic sexual content often want to get payment before providing goods. In truth, while password protected areas of a website can keep most of the public out, determined hackers can almost always gain entry to a machine connected to the Internet.10 Businesses must constantly balance the need to protect their value with the desire to provide ease of use to their customers. Most acknowledge that they can’t keep everyone out but can concentrate on the paying customers who drive their profits.
Some may see the answer to preserving value as never placing works on the Web. But with the advent of popularly-priced scanners, it has become impossible to keep printed material off the Web, as Playboy Enterprises has discovered repeatedly.11 Penalties for this kind of violation, even without an economic motive, have recently been increased,12 but it is still widespread. Another form of protection has been found through the advancement of technology. Software exists that will “watermark” images with copyright information, embedding proof of ownership and making it easier to identify violations.13 Software is under development that will embed digital files with Java applets that prevent downloading and sending as email attachments.14 Companies have arisen that will search the Web for copyright violations on behalf of clients.15
One large exception to copyright law is the content of databases, which is not copyrightable.16 However, the arrangement of databases may be protectable if it is original enough.17 For example, a company that provides information about the value of cars divided the national market into various regions and then gave independent predicted variables (such as make, model and condition of the vehicle) for each region. The court found this arrangement of price information to be copyrightable.18 The factors used to determine whether a compilation is copyrightable are “selection, coordination and arrangement.”19 Like the defense of fair use, this is determined on an ad hoc basis. This means that whether any particular CGI bin20 is original enough (in selection, coordination and arrangement) for copyright protection may not be determinable until the issue is actually litigated in court.21
An author of a copyrighted work may specify a license, thus allowing others to copy the work under specified conditions.22 Licenses may be sold or given away and a license may authorize copying by one person or several. For example, businesses like Photodisc™ sell images at a price that depends on the intended use, ranging from an internal company-wide presentation to national print publication. Placing an element in the public domain will allow reproduction by anyone in the world. Only authors may do this, and they must explicitly state that the work has been placed in the public domain. Unlike trademark law (where extensive copying without challenge may result in loss of protection), no amount of copyright violation can force a work into the public domain. This means it is a violation to copy a work that someone else has already copied, no matter how many times you have seen it on sites across the Web. This is the danger of so-called “clip art.” Purveyors of such “free” images may claim that a work is in the public domain, but they could be mistaken. Some “clip art” may actually be copyrighted and its use may be a violation.23
A new way of specifying a license that has arisen in this age of software development is the “copyleft.”24 Within the boundaries of U.S. copyright law and the Berne convention, this license sets out exact specifications under which the software may be copied, used and modified. In exchange for receiving these rights free of charge, the recipient must keep the unaltered copyright notice and the terms of the license attached to all copies.25 Rights to further distribution and modification of the code may or may not be granted. The “copyleft” terms usually also carry a warranty disclaimer. Because the software is being copied for free and widely distributed, the license should have the words “AS IS” clearly within the warranty section. While the “copyleft” scheme was first used extensively as a way of promoting the Linux operating system, the word itself refers to the process of specifying terms rather than any specific set of terms always associated with “copyleft.”
Another type of license involves a contract. For example, an author and a publisher can enter into a contract giving the publisher the right to publish the work. The terms of the contractual license are negotiated between the parties. This can be a simple affair, where the owner simply states that the publisher has the right to use the work within a specified website, or it may be very complex, with exact details about how long the display right lasts and whether there is any right to alter the work. The wording of the licensing agreement will control. Allowing “revisions” by the publisher may be a grant of the right to place a marked-up version on the Web. It is a good idea for webmasters to develop or obtain written permission to use a work on the site, especially when commissioned from a contractor or licensed from an outside source.
A recent federal court case has stirred up controversy in the publishing industry by finding that print publishers have the right to place a work online if it is part of a collection of works, even if there was no specific license for electronic display.26 The court’s decision has been appealed. The narrow reading of the law which led to that decision has also been challenged in another Circuit.27 Thus it would be premature to rely on the right to publish a “collection” on a website without express authorization from the owners of the works.
Copyright law was designed to further art and science by giving creators an incentive to create. The profit that is derived from a work is the result of public policy that sees a value in creation, not value in any given work that has been created. Businesses on the Web need to honor the copyrights of other entities and artists so that their own creations will in turn be respected by others.
2 17 U.S.C. §§ 107. Other exceptions include the first sale doctrine, retransmission by broadcasters, exemptions for non-commercial entities and statutory licenses. 17 U.S.C. §§ 108, 109, 110, 111, 112, 113, 118, 119, 120, 177 and 1008.
5 See Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522, 1530 (S.D.N.Y. 1991) (stating that case by case analysis may leave results of individual cases still in doubt). The Online Freedom Foundation takes the position that a certain amount of copyrighted material on Websites maintained by fans and devotees (as opposed to competitors or businesses) is a fair use. A petition asking Paramount/Viacom to take less of a hard-nosed stand in the enforcement of Star Trek material may be viewed at http://www.off-hq.org/about.html .
7 See e.g., MAI v. Peak, 991 F.2d 511, 519 (9th Cir. 1993) (finding violation of copyright); but see Advanced Computer Services v. MAI Systems, 845 F. Supp. 356, 363 (E.D.Va. 1994) (questioning whether RAM copies are fixed for more than transitory duration); H.R. Rep. No. 1476, 94th Cong., 2d Sess. 53 (1976) (stating that definition of fixed does not include “memory” of computer).
10 The National Security Agency has admitted that 250 Defense Department systems were broken into in 1996. While attempts exceeded 250,000, that any such attempts were successful demonstrates the resourcefulness and persistence of system crackers.
11 See e.g., Playboy Enterprises, Inc. v. Webbworld, Inc., 968 F.Supp. 1171 (N.D.Tex. 1997); Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996); Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993).
12 The No Electronic Theft Act (H.R. 2265) has been signed by President Clinton. The Act amends various sections of Titles 17 and 18 of the U.S. Code. The text of the law may be viewed at http://www.thomas.loc.gov/home/c105query.html or ftp://ftp.loc.gov/pub/thomas/c105/h2265.rh.txt .
Webpages now bear a copyright license allowing unlimited copying as long
as: 1. the copyright notice remains attached; 2. it is done for personal
use only, without commercial profit; 3. the author is notified of any deviation
from the license.