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        The Sincerest Form of Flattery ... And How to Protect Yourself From It

        © 1999-2017 Elena Fawkner

        I received an email the other day from an online friend alerting me
        to the fact that someone had copied one of the pages of my
        website and was using it, virtually verbatim, at theirs.  It was my
        first personal experience of copyright infringement.  How flattering,
        I thought!   I imagine though that when it happens a few more
        times it will begin feeling decidedly less flattering and decidedly
        more irritating.  We ARE talking about theft, after all.  So, that
        got me thinking about how to handle such situations.  And THAT
        got me thinking about copyright law and, in particular, how it
        impacts on those of us running online businesses.  After all,
        this is our livelihood we抮e talking about.

        In this article, I抦 going to share the results of my research with
        you.  Because we抮e dealing with a technical legal subject here,
        I want to preface this article with a strong disclaimer that I am
        NOT giving you legal advice in this article.  This is simply the
        result of my own research and you use or ignore the information
        I抳e included here at your peril.  I neither assume nor accept any
        responsibility for what you do with this information.  Also, this
        article discusses United States copyright law.  If you live outside
        the United States, check your local copyright laws.  Mind you,
        if you're running an online business, because of the international
        nature of the medium, the United States copyright laws are
        relevant to you.

        With that said, let抯 get to it. We抣l look first of all at what
        copyright is, what it does, what can and can抰 be copyrighted and
        who抯 entitled to it.  Then we move on to look at how to protect
        the copyright in your own work before, finally, dealing with how to
        go about using others?work without infringing their copyright.

        COPYRIGHT DEFINED

        In a nutshell, copyright is legal protection for the authors of original
        literary, dramatic, musical, artistic and intellectual works.
        Copyright protects both published and unpublished works.  Only
        the copyright owner has the right to reproduce, sell, distribute and
        perform the work publicly or to authorize others to do so.

        THE COPYRIGHT OWNER

        Generally, only the author of the work can claim copyright to it.
        There are a couple of relevant exceptions, however.  Firstly, if the
        work is 搘ork made for hire? the employer and not the employee
        is the 揳uthor?  Work made for hire is work prepared by an
        employee within the scope of his or her employment (as is work
        prepared by an independent contractor provided that the contractor
        has signed an agreement acknowledging and agreeing that the
        work shall be work made for hire).  So, if you抮e a website
        designer employed by a design company, the copyright in your
        work belongs to your employer, not to you.  Your employer is
        the author of your work.

        WHAT CAN BE COPYRIGHTED?

        Copyright attaches to original works fixed in a tangible form of
        expression.  So, for example, a dance routine created by a
        choreographer and recorded in writing can be copyrighted
        because the recording in writing fixes the work in a tangible
        form of expression.  Were the choreographer not to record the
        routine, however (whether in writing, on videotape or some other
        tangible form of expression), and instead just kept the routine
        in his or her head, the routine would not be able to be
        copyrighted because the routine has not been fixed in a
        tangible form of expression.

        WHAT CAN扵 BE COPYRIGHTED?

        In addition to works not fixed in a tangible form of expression,
        other types of works that can抰 be copyrighted are titles, names,
        short phrases, slogans and the like (trademark protection may
        be available though); ideas (copyright protects only the tangible
        expression of the idea, not the idea itself); procedures, methods,
        systems, processes, concepts, principles etc.; and works
        consisting entirely of information that is common property and
        containing no original authorship such as calendars and facts
        of the world.

        COPYRIGHTING YOUR WORK

        Perhaps the most widely misunderstood aspect of copyright
        law is that it does not require registration or publication to come
        into existence.  Copyright attaches automatically once a work
        capable of being copyrighted is 揷reated?  揅reated?in this
        context means when the work is fixed in a tangible form of
        expression for the first time.

        Under the copyright legislation, publication occurs when
        copies are distributed to the public by way of sale, other transfer
        of ownership, rental, lease or lending.  Note that a mere public
        performance or display of work does not, of itself, constitute
        publication.  So, just because you have a website available for
        all the world to see, this does not mean that your website content
        has been 損ublished?for the purposes of copyright law.  On the
        other hand, though, just because it hasn抰 been published,
        doesn抰 mean that it doesn抰 enjoy copyright protection!

        As you can see from the definition of 損ublication? creating and
        making an e-book (for example) available for sale from your site
        amounts to publishing in the copyright sense.  Once something
        is published, it is mandatory to deposit two copies in the
        Copyright Office within three months of publication in the United
        States for use in the Library of Congress.  If you fail to do so,
        you may be liable for a fine of $250.  Failure to deposit does
        NOT, however, affect whether your work has copyright protection.
        If you continue to fail to deposit your work after being notified to
        do so, the fine increases to $2,500.  Although there are certain
        exceptions to the mandatory deposit rule, none of them apply to
        our e-book example.  For a full list of exceptions, see section
        202.19(c) of the copyright legislation (37 CFR Ch. II).  It抯
        available online at the United States Copyright Office at
        http://www.copyright.gov/title37/.   So, if you抮e selling an
        e-book from your site, a set of 揾ow to?reports, or whatever,
        and you抮e the copyright owner, you need to deposit two copies
        with the Copyright Office.

        As we have already seen, copyright springs into existence
        automatically upon creation of work that is capable of being
        copyrighted.  This is known as common law copyright.  In
        addition to common law copyright, the copyright legislation
        provides for statutory registration.  There are several advantages
        to registering your copyright.  Firstly, it constitutes a public
        record of your claim to copyright in the subject work.  Secondly,
        registration is a prerequisite to an entitlement to sue for an
        infringement of your copyright (if the works are of U.S. origin).
        In other words, if your copyright isn抰 registered, you can抰 sue if
        someone uses your work without permission.  Thirdly, if you
        register your copyright within three months after publication or
        prior to infringement, you抣l be able to seek statutory damages
        and attorneys?fees if you bring legal proceedings for infringement.
        Otherwise, your damages are restricted to actual damages or
        an account of profits generated by the infringer as a result of the
        infringement.  In many instances of copyright infringement, you
        simply will not be able to point to a financial loss in a specific
        amount.  After all, if someone copies one of your content
        webpages but you don抰 suffer a financial loss and they don抰
        obtain an obvious financial advantage, what抯 your loss or their
        gain in financial terms?  Registration allows you to recover
        monetary damages in such circumstances.  Fourthly,
        registration allows the copyright owner to record registration
        with the US Customs Service for protection against the
        importation of infringing copies of your work.

        For detailed information about how to go about registering your
        copyright, visit the United States Copyright Office at
        http://www.copyright.gov/ .

        ROLE OF THE COPYRIGHT NOTICE

        Although a formal copyright notice is not required, it can be
        useful.  Firstly, it puts the reader or viewer of your work on
        notice that copyright does exist in the work and that alone may
        make would-be thieves at least think twice before stealing your
        work.  Secondly, if a copyright notice appeared on work in which
        your copyright was infringed, then (subject to certain exceptions
        - see s. 504(c)(2) of the copyright legislation available at the
        United States Copyright Office website at
        http://www.copyright.gov/title17/92chap5.html ) the offender
        can抰 claim innocent infringement in mitigation of damages.
        Thirdly, it makes it easier for someone to track you down and
        ask for permission to use your work!

        The form of the copyright notice for published work is:

         © 2013 Jane Smith
        or
         Copyright 2013 Jane Smith
        or
         Copr. 2013 Jane Smith.

        For unpublished work, the notice should read:

         Unpublished work © 2013 Jane Smith
         

        DURATION OF COPYRIGHT PROTECTION

        For work created after January 1, 1978, the work is automatically
        protected from creation until 70 years after the death of the author.
        In the case of joint works, the copyright extends to 70 years after
        the death of the surviving author.  In the case of works made for
        hire and anonymous/pseudonymous works, copyright endures for
        95 years from publication or 120 years from creation, whichever is
        the earlier.

        TRANSFERRING COPYRIGHT

        Copyright is a personal property right and can therefore be
        transferred.  A transfer of an exclusive right will not be valid, however,
        unless it's in writing and signed by the copyright owner or his/her
        authorized agent.  A transfer of a non-exclusive right need not be in
        writing.

        As copyright is a personal property right, it can be bequeathed by
        will or pass by operation of the law governing intestate succession
        (the rules that govern if someone dies without leaving a will).

        USING OTHERS?WORK

        So much for protecting the copyright in your own work.  What are
        the limits of how you can use the work of others without infringing
        *their* copyright?

        In short, unless 揻air use?applies (discussed below) you will violate
        the copyright owner抯 copyright if you use all or any part of their
        work (either as is or with trivial changes) in your work without prior
        permission.

        It is not an infringement of copyright, however, to use short
        quotations from a work for the purposes of criticism, comment,
        teaching, scholarship or research.  Any quotations used must
        clearly identify the name of the author and the source of the
        quotation.  Just use the same kinds of citations you used in your
        college papers e.g. ?搕his is an example of how to cite a quotation?
        (Doe, J., 揟he Work That Is Being Quoted From? 1988, page 23)?or
        some other generally accepted form of citation.  Note, however,
        that if your use is not fair use, then merely giving credit to the
        author of the work won抰 protect you.

        As for what constitutes 揻air use? this is one of those gray areas
        that depends on all the circumstances.  In general, the factors to
        be considered include the purpose and character of the use,
        including whether it is of a commercial or non-profit nature (if you
        stand to make a profit on the use, the less likely it is that your
        use will be considered 揻air use?; the amount and substantiality
        of the portion used in relation to the copyrighted work as a whole
        and the effect of the use upon the potential market for and value
        of the copyrighted work.  For example, if you use a tiny part of a
        work but that part was, until you used it, confidential information
        taken from a book that was shortly to be published, that may not
        be 揻air use?because you have effectively undermined the potential
        market for and value of the book.

        As a rough guide, bear the following rules of thumb in mind: first,
        if you抮e creating something new rather than merely copying
        someone else抯 work, your chances of falling within the 揻air use?
        defense are relatively better; second, don抰 compete with your
        source; and third, less is more.  The more you take, the less 揻air?
        your use.

        FOR WEBMASTERS

        Although the above issues relate equally to the online world as
        they do offline, there are some additional issues that webmasters
        need to think about in the copyright arena.

        Firstly, just because you can download something for free doesn抰,
        of itself, mean you can redistribute it freely.  Clip art is a good
        example.  There are numerous sites that offer free clip art.  These
        sites allow you to download some of their clip art images free of
        charge.  You can use these images for your own purposes in
        developing your webpages, for example, but just because they抮e
        free does NOT mean you can then turn around and make the
        images available to someone else for free or otherwise.  Under
        these sorts of download arrangements, you抮e given a restricted
        license only.  The same goes for free e-books.  Check whether
        the author of the e-book has granted permission for it to be freely
        distributed.  Most do.  Usually you抣l find some reference to
        further dissemination of the work on the cover or the first page of
        the e-book.

        Secondly, consider not deep linking.  Deep linking occurs when
        you link to another site from your site but, instead of linking to
        the home page of the other site, you link to a page within the site.
        Some webmasters object to this because it can confuse the site
        visitor about exactly whose site it is that they抳e come to.  On the
        other hand, linking to a home page can be inconvenient for the
        site visitor.  I know of one ezine publisher, for example, who
        frequently includes links to articles written by other people in her
        ezine.  It irks her when people just give their home page URL rather
        than the URL of the article itself.  She reasons, why should her
        readers have to go hunting for the article?  If they抮e impressed
        with the writing, they抣l naturally want to stop and look around the
        site.  Clearly there are both pros and cons of deep linking.  Make
        up your own mind.

        Finally, a word about frames.  If you use frames on your website
        so you can display content from other websites without it being
        obvious to the site visitor that they抳e gone to someone else抯 site,
        this very fact may land you in trouble.  If your actions lead the
        site visitor thinks the content they抮e viewing belongs to your site,
        you抳e probably just contravened the copyright of the owner of the
        site you抳e linked to with your frame!
         

        Registering your copyright is the first step to protecting the
        benefits of your hard work and endeavor.  There are, unfortunately,
        plenty of people online today who have somehow got the idea
        that everything online is free and up for grabs.  As a result, it抯
        more likely than not that one day you will have to grapple with the
        unpleasant reality that someone has stolen your work.  Depending
        on the nature and extent of the infringement, you may be forced
        to take legal action.  If you haven抰 registered your copyright you
        won抰 be able to do that.  But more importantly, your work has
        value.  You抳e made an investment in terms of your time, effort
        and talent.  You wouldn抰 leave your front door open for thieves to
        walk in and steal your stereo.  You worked hard for the assets
        you have accumulated.  So it is with your creative works.  They
        are as much assets as anything else you own.  So get your
        copyright registered and close the front door to the thieves who
        would help themselves to what you have worked so hard to create.

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