Copyright law governs the use of materials you might find on the
Internet, just as it governs the use of books, video or music in the analog
world. Many people consider copyright law inadequate to deal with the realities
of electronic communication today, but it takes time to change the law. This is
actually a good thing: it will probably be better if it changes in response to
what we learn about these new technologies through experience, rather than in
response to special interests that may be desperate to protect their positions
in the print world. Unfortunately though, this means that the law is not going
to get clearer right away.
Given unclear legal rules, what can we do today with the materials we
find on the Internet and what are our liabilities for infringing another's
copyright?
Some common assumptions are wrong
Copyright protection
Many people assume that everything posted on the Internet is public
domain, probably because our law used to protect published works only if they
displayed the proper copyright notice upon publication. The law, however, has
changed: neither publication nor a notice of any kind is required to protect
works today. Simply putting the pen to the paper or in the electronic medium,
putting the fingers to the save key creates a copyrighted work. Once expression
is committed to a tangible medium (and computer media is considered tangible),
copyright protection is automatic. So, postings of all kinds are protected the
same as published printed works.
The saving grace: implied and express licenses to use Internet materials
Whenever an author posts anything on the Internet, he or she should
reasonably expect that it will be read, downloaded, printed out, forwarded, and
even used as the basis for other works to some degree. So, just by posting, an
author impliedly grants a limited license to use her work in this manner. Think
about the rights a newspaper editor has to publish a "letter to the
editor." The author of the letter probably did not include a line in the
letter giving the editor an express permission to publish the letter, but
anyone who sends such a letter must be presumed to understand that this is what
happens to letters to the editor.
On the other hand, most authors would not think that posting a work
automatically gives consent to commercial use of it without permission. This is
not part of what one reasonably expects, and so it's not part of the implied
license.
The trouble with implied licenses is that their boundaries are vague. Is
the right to create derivatives in or out? What about large-scale nonprofit
distribution? Implied licenses are vital to the operation of the Internet, but
they are not as good as express licenses, licenses that spell out in detail
what rights the author of a work wants readers, viewers or listeners to have.
You can easily give your works an express license by attaching a Creative Commons license to the materials
you post on your Website, or upload to other sites. It's easy and it sends the
message that you want your materials to be part of the flow of creativity. No
one creates in a vacuum. Just as you build on others' works, others will build
on yours. The Copyright Crash Course carries a Creative Commons 3.0 share-alike
license that allows anyone to copy it for nonprofit purposes or create their
own works based on it, so long as the new author attributes her work to the
Crash Course, and attaches the same type of Creative Commons license to it.
That way, the sharing goes on.
Liability for posting infringing works
The proliferation of RIAA lawsuits against individuals for peer-to-peer
file-sharing make clear that individuals can be liable for their own actions
when they copy and distribute others' copyrighted works without permission.
Universities and libraries can also be liable for the actions of their
employees doing their jobs and possibly students who access the Internet
through university machines. This means that universities must pay attention to
what their network users are doing, take effective measures to inform them
about their responsibilities, and promptly investigate complaints of
infringement.
The role of fair use
Fair use plays a critical role in the analog world where duplicating
technology is cumbersome and authors make money by controlling copies. It
balances authors' rights to reasonable compensation with the public's rights to
the ideas contained in copyrighted works. It used to be safe to say that
reasonable analog educational, research and scholarly uses were fair uses. But
this appears to be changing. Those same activities in the digital world are
being challenged, mostly because copyright owners have gone to such lengths to
make the rights we need to carry out those activities easy to obtain and
reasonably priced through collective licensing (the Copyright Clearance Center,
in particular). Still, the main cases in this area have involved commercial
entities, so their application to nonprofit educators is far from decided. To
the extent that fair use is less clearly applicable than it used to be,
reliance on fair use for our uses of works we find on the Web can be bolstered
by reliance on implied and express licenses. Where fair use may be questioned,
implied rights may be broader, but an express right to use is best - it's clear
and reassuring. It's possible today to search Creative Commons licensed
works by license type, or limit your search to be sure that your
results include only materials intended for use by
educators and students.
Source: retrieved from
https://copyright.lib.utexas.edu/useofweb.html
https://copyright.lib.utexas.edu/useofweb.html
