Quick Disclaimer: Written below are my own research findings that have not been vetted by anyone in the legal profession.
When I first started blogging, I thought it would be a great idea to adapt all of my most interesting historical research findings into concise, info-packed précis and showcase them with sidebar links and a dedicated page. After all, I am all about sharing facts, connecting with others, and crediting the hard work of researchers and scholarly writers I admire.
Because my intentions are so pure, I should not have to worry that I might be committing an offense like copyright infringement. Right?
Well, maybe. Maybe not. It turns out that the regulatory waters governing use of copyright protected materials are murkier than the Brazos River, and attempting to circumnavigate the world of intellectual property rights without legal counsel is risky to say the least.
I cast the question out to various online writers groups I belong to, thinking there might be some wizened soul out there who could provide a definitive answer. My inquiry was mostly met with silence, although four out of about 30,000 individuals chimed in with their own helpful takes on what might be considered my fair use of copyright protected information.
Before making any knee jerk edits to my webpage, I decided to take a stroll over to the Library of Congress to personally confer with a representative of the end-all, be-all source on the rules governing use and redistribution of copyright protected works: the U.S. Copyright Office. Here is what I learned:
- The U.S. Copyright Office cannot provide legal counsel or any advice on what might or might not be considered copyright infringement. It can provide verbatim rules and regulations from the U.S. Code of Federal Regulations, as well as circulars illustrating just about anything you want to know about copyrights. All of this information is available at www.Copyright.gov.
- Every written work produced today has a copyright owner, unless s/he waives his or her copyrights or releases the work to the public domain. These days every written work (published or unpublished) is the property of the author or publisher, or someone who derives rights through the author or publisher, from the moment it is first fixed onto a page.
- Only the courts may legally decide what constitutes fair use of registered copyright protected materials in a dispute. Not a work’s owner, intellectual property attorneys, the media, or even experts running the show over at the U.S. Copyright Office. Copyright registration significantly strengthens a claimant’s case in court, should s/he pursue legal action against a potential infringer. Also, I found out that litigation is costly for both claimants and infringers – we are talking $100K on the low end. Long story short, one should never assume his or her online use of copyright protected information is permissible under the fair use doctrine.
- Facts and ideas are uncopyrightable. This is good news. Technically it means I should not have to change my blogging concept for the time being. However, as a courtesy to published researchers and historians who have developed expertise in relatively niche subject matter, I will refrain from boiling their life’s work down to meme-sized key points. Instead I will reference complete works on my “Resources” page.
- We should not assume orphan works are in the public domain. If an author cannot identify a registered copyright owner of a published work written between 1909 and 1976 in the Copyright Office’s card catalog, it does not mean the work has no owner. It is possible for works to fall irrevocably into the public domain, as is what happened with works published without the required notice of copyright prior to 1909, works published prior to 1964 whose registration term expired without renewal after 28 years, or works that met the final expiration date of their second copyright term. Sometimes there is just no way to know for sure who owns rights to an older work.
- There is no quick fix to obtaining licenses and written permissions to use copyright protected content in our own works. To quote the Copyright Office’s information specialist I met with, “It’s like eating an elephant. Real authors know it can sometimes take years to get all the right permissions… it just can’t always be done within 6 months.” If an author cannot find a source’s copyright owner to obtain legal permission to reuse it, the U.S. Copyright Office advises authors not to use the source it at all. Not everyone follows that guidance, however. Some authors take extra precautions to ensure unintentional infringement does not harm their reputation in the long run. For example, they may publicly disclose their good faith efforts to try and locate sources in a preface or annex to their newly published work. Some authors and publishers establish special accounts that accumulate a percentage of book proceeds, so that if an orphan work’s copyright heir emerges from obscurity to claim infringement the situation has a chance of settlement prior to reaching court. There are no guarantees such precautions actually work.
- Information online is subject to the same copyright protections as information published elsewhere. When I first started researching 19th century sugar production, I was surprised at the dearth of information accessible online. I thought there would be so much more available in the public domain than there actually is, and I am not positive that some of the info I found on the internet was published with a license or with permission from content owners. For this reason I am reluctant to link directly to those pages on my blog. Also relevant, linking to another website’s homepage without permission is not exactly illegal. Deep linking to other sites however, or providing links that dodge a website’s homepage, can be more problematic. Many websites welcome it while others do not. Some websites, like the New York Times and BBC for example, have clear linking policies. If ever in doubt, bloggers and webmasters should pursue linking agreements to avert disputes that might arise from deep linking. For small fry online presences like me, prominently posting a disclaimer to deny endorsement or approval of products and information at the other end of hyperlinks might or might not help minimize damages in court.
It did not occur to me at the time I launched this website that my posted précis could be perceived as anything but helpful. I wanted readers to breeze through key findings of all the incredible books, periodical articles, and websites I have found useful these past few months. At best, readers would be thrilled to have access to obscure historical information at no cost. At worst, readers would find the précis boring. When the time came for me to get to work on my first précis, I remembered I should probably check the work’s copyright notice for any restrictions. Sure enough, this is what I found:
“All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.”
I was not discouraged. I decided to contact the copyright owner/author to ask for written permission. I was (still am) a big fan of the particular work I wanted to spotlight. To my starry-eyed delight she responded the next day, but not in the way I anticipated. She agreed to let me use her work conditionally, as long as I submitted the finished product to her for review and approval first. That is a perfectly reasonable request, which I intend to honor even knowing that she could change her mind upon reading my final product. C’est la vie. These are the risks we take in attempting to write for public consumption.
I have a long way to go before I can call myself an authority on how to legally use copyright protected information online. Pesky little ethics I never knew I had, coupled with an incurable paranoia of all things litigious, have motivated me to reconsider the purpose and structure of The Purgery. Moving forward, I plan take the following steps to try and protect myself and others from inadvertently infringing upon the intellectual property rights of hardworking professionals I respect:
1) I will not reproduce or cite large passages of a protected work without first obtaining a license or written permission from the intellectual property or copyright owner. If I cannot locate the owner, I will not use the work.
2) I will give full credit to any written, recorded, or interviewed source I consult with a citation or direct link within or beneath the body my blog posts.
3) I will not deep link to articles buried in commercial or private websites. Instead I will link directly to homepages and leave it to interested readers to axe through the quagmire.
4) I will do my best to obtain signed release forms from interview subjects and property owners prior to publishing words or photographs of the subjects and/or their property on my blog.
5) I will obtain a Creative Commons license to clearly communicate which rights I have reserved and which rights I have waived for anyone intending to reference or reuse information originating on The Purgery.
I welcome any comments from individuals who have greater knowledge or expertise on the topic of intellectual property rights (copyright, trademark, patents, etc.). Do you have any specific advice or caution to offer new writers?
For more information on U.S. Copyright laws and registration visit www.Copyright.gov.
For pictures of my latest adventure at the U.S. Copyright Office to investigate the owner of what I have concluded is an orphan work, check out this photo album on my Facebook Page.