Are You Wrong about Copyright? The Facts You Need to Know, Part 2

VUNA VIEWS - February 1998

Are You Wrong about Copyright? The Facts You Need to Know, Part 2

by Judy Miner

Because most vegetarian organizations publish a newsletter or other informational literature, we must face copyright issues. Copyright gives those who put their ideas into tangible form the exclusive right to control how, when, and by whom the work is reproduced and distributed. Copyright comes into effect automatically as soon as an idea is put on paper or tape or canvas or computer disk; an author does not have to file anything with the government or put a copyright notice on the work. Copyright lasts for the life of the author plus 50 years and cannot be forfeited except by the copyright holder's explicitly putting the work into the public domain.

So, that cute cartoon with a vegetarian theme you saw in the newspaper cannot legally be copied and printed in your newsletter without the permission of the copyright holder. Nor can you reproduce magazine articles without permission, even if you give full attribution to the copyright holder. In fact, though ideas, facts, slogans, words, and phrases cannot be copyrighted, virtually all tangible expressions of ideas do have the protection of copyright and it is illegal to reproduce them without permission. Violating copyright could result in a lawsuit against you or your organization, or even criminal prosecution.

The intent of copyright laws is not to make life difficult when we want to reuse that perfect article, illustration, or cartoon. In both Canada and the US, the purpose of copyright is "to protect owners while promoting creativity and the orderly exchange of ideas," as stated by the Canadian Intellectual Property Office's Guide to Copyright. Many people who earn their living as writers or artists and groups that raise funds through the sale of original works would refuse to put out the tremendous effort this often takes if someone else could simply appropriate their work without permission. There is also the issue of the moral rights of authors, whose works are an extension and expression of their personality--the fundamental principle of Canadian copyright law.

However, because the law does not focus solely on protecting the intellectual property of authors but also on promoting the exchange of ideas (or "the progress of science and the useful arts," according to the US Constitution), some use of copyrighted material without permission is allowed. In the US, "fair use" governs such cases; in Canada, they fall under "fair dealing." The problem for potential "fair users" is that the laws are purposely vague and infringement actions are decided by courts on a case-by-case basis.

What Are Fair Use and Fair Dealing?

US law allows claims of fair use when copyrighted material is reproduced without permission for purposes of criticism, comment, news reporting, teaching, scholarship, and research. Canadian law lists purposes of private study, research, criticism, review, and newspaper summary, omitting teaching (as in photocopying articles for use in a classroom). US law also takes account of the purpose and character of the use, that is, whether it was done for commercial gain or for nonprofit educational purposes, the amount and substantiality of the portion used, and the effect of the use upon the potential market for and value of the copyright work. The US Copyright Office states explicitly: "There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

Note that because fair use or dealing are decided by courts taking account of the circumstances of a specific case, we might assume our use was fair, but we can't be certain of it. Also, we might be violating copyright on a regular basis, but unless the copyright holder takes legal action, we would never have to face the legal consequences. Given the costs of taking a party to court, it's unlikely a vegetarian society with a newsletter circulation of 200 would be sued for reproducing copyrighted material. That still leaves us with the moral question of violating an author's rights to intellectual property.

So, if we want to do the right thing but still use copyrighted material in an aboveboard manner, we can follow certain guidelines:

Quoting short portions of works for purposes of review is fair use or dealing.
Facts cannot be copyrighted, so using facts that appear in print is not a violation. Short news articles that merely report facts and do not represent an author's creativity may be reprinted, with attribution.
Ideas cannot be copyrighted, so lists of ingredients and cooking procedures in recipes cannot be copyrighted. Cookbooks do fall under copyright, though. So reprinting a small number of recipes from a cookbook or magazine is not a violation of copyright, but reprinting substantial portions of a cookbook without permission would be. Anything that hurts the commercial value of a copyrighted work would most likely not be judged fair use.
Quoting portions of a copyright work for purposes of comment or criticism falls under fair dealing or use. Therefore, if you ran an article rebutting assertions in a beef industry publication, for example, you could quote from it extensively in order to illustrate your point. You can also quote briefly from a copyright work about which you are writing a news summary.
You can use some content of a work for purposes of parody.
You can quote brief portions of a copyrighted work as references.

It never hurts to ask for permission to use a work. Many copyright owners will gladly give it to you without charge.

Can You Use It If It's on the Internet?

The Internet and World Wide Web have posed new challenges to copyright holders and intellectual property law. Both the US and Canada are in the process of updating their laws to reflect conditions in the digital age. You needn't wait for new laws, however, to realize that you should assume all graphics on Web pages are copyright and cannot be reproduced in print or electronic media or on your own Web page without permission. You can purchase many collections of Web graphics that come with permission for use or reproduction. If you see a graphic on a Web site that you'd love to use, first contact the site's Webmaster for copyright information. Copying and then altering a graphic so it is unrecognizable is nevertheless a prohibited use. Text on the Internet falls under the same rules for fair use as printed text. Little case law exists right now to give guidance about fair dealing when copyrighted material is posted to a Usenet group or Listserv mailing list. We can state with certainty, however, that posting something on the Internet does not thereby put it in the public domain or grant permission for unlimited copying. If a posting violates copyright, even though you did not originate it you also violate copyright if you use that illegal posting in your own publications, whether print or electronic.

We vegetarians often feel we show a little more moral sensitivity than presumably less enlightened folk who refuse to examine the ethical implications of their diet. Should we show any less sensitivity to people's intellectual property rights? Even if the ethics of copyright infringement do not grab us, consider that big fish can and do take little fish to court (e.g., the McLibel trial and the Texas ranchers' beef defamation lawsuit against IVU President Howard Lyman). Do you really want to spend your group's money on a copyright infringement defense?

Note: I am not a lawyer or authority on intellectual property issues. I am writing this as a journalist using reliable and up-to-date sources. Nothing in this article constitutes legal advice. Where serious consequences may be involved, be safe rather than sorry and consult a qualified attorney.

Maintained by Judy Miner jwminer@accessvt.com