Category: Digital Law

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Copyright or Copywrong?

cspdcomics-1I was in a staff meeting at school last week where we were given a presentation outlining 10 common myths about copyright.  I thought it not a bad summary of what many teachers just assume to be true.  Ironically, I’m reproducing it below basically word for word as it was presented to me, but I’m told on good authority that the original creator has authorised its use for reposting.

The other thing I really would have liked to have had included in the conversation was a little more talk about what the alternatives are.  It’s one thing to talk about what you can’t do legally, but unless you provide a list of workable alternatives, simply making “though shalt not” pronouncements  is a bit pointless.  Copyright has a place, but in a digital world that place is changing dramatically.  There is an obvious tension between the inputs and the outputs of copyright… if you are a content creator, you want the output of your work to be protected so others don’t simply steal your stuff, however, unless you can borrow and remix content from others, you will have very little to work with in the first place.

If you’ve not seen it, take a look at an amazing comic book produced by the Center for the Study of the Public Domain at Duke University.  Issue 1, entitled Bound By Law, looks at the copyright issues faced by documentary filmmakers, and is an extremely insightful look at the pros and cons of copyright and how it can often unintentionally stifle the very same creativity it is supposed to be protecting.  I think it explains it very well, and it should be read by all high school students (and teachers!).  You can download a copy (Under a Creative Commons licence of course) from www.law.duke.edu/cspd/comics.

For another lucid overview of the real issues behind copyright law, you really can’t go past the TED Talk by Larry Lessig (founder of Creative Commons) called How Creativity is Being Strangled by the Law.  His final summation of the tensions that exist between the extremist viewpoints of “Let’s protect everything” vs “Everything should be free” is excellent, and he makes it very clear that, while the law might not be the ass we sometimes think it is, the notion of copyright certainly needs a good injection of balance and common sense if it is to remain relevant and workable.

Anyway, for what it’s worth, here are the 10 myths about copyright, as presented by my school last week (and specifically applied to Australian copyright law)

1.  It’s OK – I found it on the net

The fact that something is on the internet doesn’t mean that it’s not protected by copyright or that you can use it as you wish.  Material on the net is protected to the same extent as anything on paper or in any other type of format. In many cases, however, copyright owners put a statement on to websites stating how people can use the material – the permission they give can often be quite extensive, but don’t assume that it will cover what you are planning to do with the material.

2.  We can use it – it doesn’t have a copyright notice on it

While it is recommended copyright owners should put copyright notices on their material, it is not compulsory, and it doesn’t affect whether or not something is protected. We will have a compliance issue to deal with whether or not the material has a copyright notice on it.

3.  We’re non-profit so it’s OK

In some narrow cases, the non-profit statues of an organisation can affect its ability to rely on exceptions. However, there is no general rule to the effect that it’s OK to use copyright material for non-profit purposes.

4.  It’s all right we’re attributing the creator

If you’re using copyright material, you do generally have to attribute the person or people who created the material. This is a general moral rights obligation. However, you’ll still have copyright issues to consider; attributing the creator doesn’t change this.

5.  We only need to worry about copyright if we’re charging money

In some narrow cases, the fact that an organisation is charging money can affect its ability to rely on exception to the general rule that you need permission if you want to use copyright material in one of the ways reserved to the copyright owner.  However, there is no general rule to the effect that you don’t have to worry about copyright if you’re not charging people for the material you are using.

6.  The copyright owner should see this as good promotion

Whether or not a copyright owner sees your use of their material as good promotion is their decision, not yours, and you can never be sure they’ll see the situation in the same light as you do.  Also, even if the copyright owner does see your use of the material as good publicity, don’t assume that this means that they’ll give you permission to use it for free. Many copyright owners make their living from the licence fees they charge, and they will often want to know beforehand how you want to use the material. If you don’t get a clearance when you’re supposed to, you’ve still infringed copyright – which may, for the College, work out as bad publicity.

7.  It’s OK – I’m using less than 10%

There is no general rule that you can use less than 10% without permission.  If you’re using any ‘substantial’ part of a copyright owner’s material – whether you’ve made changes to it or not – you’ll have to deal with the copyright issue. In the context, a ‘substantial’ part is any part that is important, distinctive or essential. It doesn’t have to be a large part to be ‘substantial’ in a copyright sense.

8. It’s all right – I’ve changed it

There are two common, but wrong, beliefs in this area.  First, there is no general rule to the effect that it’s OK to use copyright material if you change it by 10% or more.  Second, there is no general rule to the effect that you can use copyright material if you make five or more changes.  As noted above, if you’re using any part that is important, distinctive or essential, you have to deal with copyright issues.

9. It’s OK – we paid for it

The fact that the College paid a contractor for something – such as a report or a series of photos – will have a bearing on how we can use it. However, this is not by itself a guarantee that we own copyright in it, and can use it as we like.  Similarly, the fact that we own a physical item – such as a painting or photograph or a DVD – does not mean you can use it as you like (such as copying it or screening it).

10. No one will ever find out

If you know, and your colleagues know, why mightn’t the copyright owner – or the collecting society that represents them – get to find out too?  Organisations that infringe copyright are always at risk from disgruntled employees, let alone the other people they come in contact with.  Also, copyright owners have six years to take action for an infringement – that’s a long time for information to come to light.

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Better than Stealing

The Internet has made it easier than ever to find virtually any digital resource we might want. The ability to locate, download and use a piece of music, a passage of text, a video or a photo for our own use is so trivially easy to do that in the excitement of knowing we CAN do it, we sometimes overlook the question of whether we SHOULD do it.  The idea of the Internet as a place where things are freely shared has become so much a part of our thinking that we sometimes believe we have a right to reuse whatever resources we happen to find online.

One of the casualties of this cavalier approach to sharing can be a loss of respect for the intellectual property of others. In a world where everything appears to be so freely available, it is easy to overlook the fact that someone, somewhere, owns these resources.  We tend to rationalise our use of them, reasoning that if people put them on the Internet they must be willing to share them.  And that’s not always true.  Some people do not want you to take their work without asking.

On the other hand, some people ARE prepared to share their work. There are many who would be thrilled to think that someone wanted to look at their pictures, listen to their music or read their writing. The problem is that we don’t always know the author’s intentions. It would be nice to be able to tell, clearly and unambiguously, what the terms and conditions are for using their work.

This is precisely what Creative Commons sets out to do. Creative Commons is a set of conditions that clearly outlines the terms under which an author will allow their work to be used.  All CC licences require attribution, or some acknowledgment of the author, usually with a link back to the original work.  They provide a distinction between commercial and non-commercial uses, allowing the author to choose whether they will allow someone else to use their work to make money or not.  CC licences also provide options for whether the work must be used exactly as is, whether it can be edited, adapted and remixed, and can also stipulate that a work must be shared under the same conditions as it was made available.

Applying a CC license to your work is easy. The Creative Commons website, found at www.creativecommons.org, provides a couple of simple questions to define the conditions under which author is prepared to publish their work, and then generates badges, computer-readable code and an easy-to-understand license document.  It’s a very simple process that will help make it much clearer to anyone who wishes to use the works exactly what they are legally able to do with them.

The huge benefit for educators is the removal of the many barriers created by traditional copyright. Teachers are able to locate thousands of CC digital resources that can be freely used with students without worrying about violating copyright or interpreting the often vague “fair dealing” law. These digital resources can be used, remixed and, most importantly, republished back to the web, all without fear of a copyright violation since the terms of use are clearly and explicitly stated upfront.

Of course, not every resource will be available under a Creative Commons license, so students still need to be taught about traditional copyright and the responsibilities that accompany it. If suitable resources are not available under CC, and permission cannot be sought for its use, then all the usual copyright restrictions still apply. However, Creative Commons offers a viable alternative for the legitimate remixing of digital media, while providing an excellent environment in which to frame discussions with students about the legal and ethical responsibilities of being a good digital citizen.

This article was written for, and recently published in, Australian Teacher Magazine